Ward v Howard, 156 NC App 700 (02-718) 03/18/2003

Appeal by petitioner from order entered 16 January 2002 by Judge Herbert O. Phillips, III, in Buncombe County Superior Court. Heard in the Court of Appeals 12 February 2003.

Wade Hall for petitioner appellant.

Attorney General Roy Cooper, by Assistant Attorney General Tracy C. Curtner, for respondent appellees.

    McCULLOUGH, Judge.

    On 16 September 1997, the North Carolina Division of Motor Vehicles (DMV) permanently revoked the driver's license of petitioner Terry Eugene Ward because he had three offenses of driving while impaired. Petitioner's license was conditionally restored effective 19 January 2001, subject to terms and conditions set out in a conditional restoration agreement. One condition wasthe installation of an ignition interlock device upon petitioner's vehicle. Approximately one month after the installation, petitioner registered an alcohol reading of .125, which exceeds the legal limit. On 11 July 2001, the DMV conducted a compliance hearing to determine whether petitioner violated any terms of his conditional restoration agreement. The DMV hearing officer considered the evidence and determined that petitioner had violated the terms of his agreement and revoked his conditional restoration as of the date of the hearing. Petitioner was informed that his license was back in a state of permanent revocation and that he could apply for a new conditional restoration in four years. Petitioner sought review of the DMV's decision in Buncombe County Superior Court.
    Petitioner's case was scheduled for a full hearing on the merits at the 10 December 2001 Session of Buncombe County Superior Court. The judge originally commissioned and scheduled to hold court during that session was Judge Herbert O. Phillips, III. However, on 6 December 2001, Judge Richard L. Doughton was substituted and commissioned to hold court during the 10 December session. Judge Doughton presided over petitioner's case on the morning of 10 December. Both parties were present and made arguments, and petitioner was represented by counsel. Upon review, Judge Doughton issued a bench order in open court affirming the DMV's decision and requested that respondents prepare a written order to that effect.
    Petitioner gave notice of appeal in open court immediatelyafter the hearing, and the parties included language in the order confirming “[t]hat, the Petitioner having given oral notice of appeal, this order of the Court shall be stayed pending perfection of the appeal by Petitioner, and, in the event that appeal is perfected, said stay shall remain in effect pending a final determination by the North Carolina Court of Appeals[.]” Counsel for respondents prepared the order, but mistakenly sent it to Judge Phillips rather than to Judge Doughton. Judge Phillips signed the order and petitioner thereafter appealed to this Court, assigning error.
    On appeal, petitioner argues the trial court erred by (I) entering an order when the signing judge was not the trial judge assigned to the case; (II) entering an order even though the trial judge who signed the order did not hear the evidence and testimony presented; and (III) denying his rights to substantive and procedural due process. For the reasons set forth herein, we vacate and remand the order of the trial court.
    By his first and second assignments of error, petitioner maintains Judge Phillips should not have entered the order because he was not the judge assigned to the case and did not hear the evidence and testimony presented at the hearing on 10 December 2001. While we agree that Judge Phillips should not have signed the order, we do not believe petitioner has demonstrated error worthy of a new hearing. Rather, we agree with respondents that the error was not prejudicial, does not require a new hearing, and can be corrected by vacating the order appealed from and remandingthe case to the trial court for signature of an appropriate order by the superior court judge who presided over the hearing.
    N.C. Gen. Stat. § 1A-1, Rule 61 (2001) provides:
            No error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right.

“Error alone will not justify reversal; the error must affect some substantial right of the appellant.” Andrews v. Andrews, 79 N.C. App. 228, 232, 338 S.E.2d 809, 812, disc. review denied, 316 N.C. 730, 345 S.E.2d 385 (1986). “The burden is on the appellant not only to show error, but also to enable the Court to see that he was prejudiced and that a different result would have likely ensued had the error not occurred.” Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d 728, 730 (1981).
    In the present situation, petitioner received a full hearing on the merits of his case before Judge Doughton. Petitioner and his attorney were present and made arguments before the trial court. The trial court ruled in open court that it would uphold the revocation of petitioner's license by respondents and instructed respondents to prepare an order to that effect. Admittedly, the order was erroneously sent to and signed by Judge Phillips, who did not hear the case. This case was not reheard by Judge Phillips, and neither party ever appeared before Judge Phillips. Petitioner knew the order was being sent to theincorrect judge because he was given a copy of the letter respondents sent to Judge Phillips on 7 January 2002. Nonetheless, petitioner did nothing to point out the error and did not make a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 (2001) to correct the error. We note that petitioner did not object to the draft of the order provided to him prior to submission to the trial court, and the contents of the draft order did not change from that submitted when it was signed by Judge Phillips. Based on these facts, we discern neither prejudicial nor reversible error.
    Petitioner further contends that respondents attempted to substitute judges for the purpose of getting the order signed. However, petitioner has not supported his contention with any evidence. Thus, we are left with the question of how to correct the technical error that occurred below. Under Rule 60(a), clerical mistakes in judgments, orders, and other parts of the record may be corrected with leave of the appellate division if the appeal is pending. “But this power to correct clerical errors and supply defects or omissions must be distinguished from the power of the court to modify or vacate an existing judgment.” Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958). As previously noted, petitioner had notice that the order was being sent to the incorrect judge and did nothing to bring the problem to anyone's attention. Petitioner argues the error requires reversal. However,
            [t]he correct method of attacking a judgment is dependent on the character of the asserted defect. Errors in law can only berectified by an appellate court on proceedings properly taken in the action in which the judgment was rendered. Irregularity due to an inadvertence of the court in rendering an improper judgment can be corrected by motion made in the action in which the judgment was rendered. An erroneous or irregular judgment binds the parties thereto until corrected in a proper manner. Diligence is necessary to obtain relief. A void judgment, however, binds no one. Its invalidity may be asserted at any time and in any action where some benefit or right is asserted thereunder. A judgment is void if the court rendering it does not have jurisdiction either of the asserted cause of action or of the parties.

Lumber Co. v. West, 247 N.C. 699, 701, 102 S.E.2d 248, 249 (1958). See also Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 677, 360 S.E.2d 772, 777 (1987). Once again, we note that petitioner has failed to show any errors of law which require reversal of the trial court's order. Based on the foregoing, petitioner's first and second assignments of error are overruled.
    Lastly, petitioner argues the trial court denied him his rights to substantive and procedural due process because the order was signed by a trial judge who did not hear the case, and petitioner was never given notice or an opportunity to be heard by that judge prior to the signing of the order. Due process requires notice and an opportunity to be heard. McDonald's Corp. v. Dwyer, 338 N.C. 445, 448, 450 S.E.2d 888, 891 (1994). Petitioner was afforded these rights at his 10 December 2001 hearing on the merits of his case, and has failed to demonstrate a denial of his substantive and procedural due process rights. We conclude his assignment of error is meritless and it is therefore overruled.    Upon careful review of the record and the arguments presented by the parties, we conclude the trial court acted properly in all substantive respects. However, because the trial court's order was signed by a judge who did not preside over the hearing, we vacate the order appealed from and remand the matter so that the proper judge (Judge Doughton) may sign and enter an order consistent with his 10 December 2001 ruling.
    Vacated and remanded.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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