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Attorneys – Authority to Act – Consent Order – Stipulation

In a parking lot altercation, defendant shot plaintiff. After this court affirmed a judgment against defendant for battery, defendant moved for relief, asserting that his trial counsel had acted without his consent when counsel (1) entered into a consent order allowing plaintiff to take a second voluntary dismissal and re-file his complaint and (2) stipulated that counsel would not bring up at trial the differences between plaintiff’s first two complaints and the third complaint. Defendant has failed to rebut the presumption that his trial counsel was authorized to act for him when entering these agreements on defendant’s behalf.

We affirm the trial court’s denial of defendant’s motion brought pursuant to N.C. R. Civ. P. 60(b).

Defendant introduced an email exchange between his and plaintiff’s trial counsel to demonstrate that his trial attorney agreed not to use the first two complaints to “get the case over with before he took the bench.” Defendant also brought a malpractice claim against his trial counsel in his ongoing bankruptcy proceeding and offered this pending claim as evidence of his lack of consent.

The trial court considered this evidence, along with the affidavit defendant submitted, and concluded it did not demonstrate that defendant’s trial counsel lacked authority to enter into a consent order on his behalf.

Defendant directs us to no additional evidence on appeal. We cannot hold that the trial court’s determination was a result of an unreasoned decision.

Defendant further argues that the two-dismissal rule set forth in N.C. R. Civ. P. 41(a) bars plaintiff’s third claim. However, there was no second voluntary dismissal in this case. Plaintiff’s second action was dismissed by consent order without prejudice to him refiling the action within 90 days.

A consent order that follows a voluntary dismissal by the plaintiff will not trigger the two-dismissal rule. The consent order in plaintiff’s second action was valid and did not bar his third action.

Because competent evidence in the record supports the trial court’s findings that defendant’s counsel committed no procedural blunder and instead conformed to professional standards of practice, and that defendant’s liability was proven by “strong, clear and convincing evidence,” we cannot disturb these findings on appeal. The trial court did not abuse its discretion in denying defendant’s motion to set aside the judgment under either Rule 60(b)(4) or Rule 60(b)(6).


Simmons v. Wiles (Lawyers Weekly No. 012-233-22, 13 pp.) (Lucy Inman, J.) Appealed from Cabarrus County Superior Court (William Long, J.) Lucas Baker for plaintiff; Paul Tharp for defendant. 2022-NCCOA-364

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