Waters v Waters, (04-506) 04/05/2005

Appeal by plaintiff from orders entered 24 October 2003 by Judge Gregory R. Hayes in Caldwell County District Court. Heard in the Court of Appeals 17 February 2005.

Michael P. Baumberger, P.A., for plaintiff-appellant.

The Law Firm of J. Richardson Rudisill, Jr., by Lee R. Marler, for defendant-appellee.

    LEVINSON, Judge.

    Plaintiff (Joy Waters) appeals from orders dismissing her actions against defendant (Adam Waters) for lack of personal jurisdiction, and quashing her subpoena duces tecum. For the reasons that follow, we reverse.
    On 4 August 2003 plaintiff filed a domestic violence action against defendant. Her claim was brought under N.C.G.S. § Chapter 50B, and captioned Caldwell County File No. 03 CVD 1135, (the “50B claim”). Defendant retained attorney Lucy McCarl to represent him in the 50B claim. On 7 August 2003 plaintiff filed the complaint in the case sub judice, Caldwell County File No. 03 CVD 1167,wherein she sought child custody, equitable distribution, alimony and post-separation support, child support, and divorce from bed and board (the “domestic relations” claim). On 8 August 2003, when the parties were in court for a hearing on the 50B claim, plaintiff gave McCarl a copy of the summons and complaint in the domestic relations case. At that time McCarl had not been hired to represent defendant on anything but the 50B claim. Nonetheless, it is undisputed that on 8 August 2003 defendant signed a consent judgment in the domestic relations case, now before us on appeal. The consent order bears the caption 03 CVD 1167, and addresses issues pertaining to temporary child custody, visitation, plaintiff's right to live in the marital home, child support, defendant's agreement to attend anger management classes, and the interim distribution of certain marital assets. It is signed by both parties, their attorneys, and the presiding judge. Michael P. Baumberger signed as plaintiff's counsel, and McCarl signed the line for “defendant's attorney.”
    After the parties had executed a consent order in the domestic relations case, plaintiff signed a notice of voluntary dismissal of the 50B claim “pursuant to consent order entered in 03 CVD 1167.” Thereafter, McCarl engaged in correspondence with opposing counsel relative to the domestic relations claim, and submitted a child support worksheet. On 25 August 2003 McCarl was allowed to withdraw as defendant's counsel, and defendant retained new counsel to represent him in this matter. Defendant's new counsel filed notices of deposition for several witnesses in the domesticrelations case sub judice, and took videotaped depositions of these witnesses on 17 September 2003.
    On 7 October 2003 defendant moved to dismiss the domestic relations claim for lack of personal jurisdiction, on the grounds that McCarl had not been retained to represent defendant as of the date that she accepted service of process in this case. Plaintiff filed a subpoena duces tecum for McCarl's records in the case, which defendant moved to quash. The motions were heard on 17 October 2003. On 24 October 2003 the trial court entered an order granting defendant's motion to quash plaintiff's subpoena, and dismissing plaintiff's domestic relations claims for lack of personal jurisdiction. The court found that, because McCarl did not represent defendant in the instant case on 8 August 2003, she lacked authority to accept service of process on his behalf. On this basis the court concluded that “there was insufficiency of service of process” and, therefore, that “the Court lacks jurisdiction of the person.” From this order plaintiff appeals.

    The parties present various arguments concerning McCarl's actual or apparent authority to accept service of process in this case before she was retained as counsel. We find it unnecessary to address these issues. Plaintiff argues that, regardless of whether defendant was properly served with a summons and complaint, he subjected himself to the court's jurisdiction by signing the consent order, submitting a child support worksheet, and taking the depositions of several witnesses. We agree.     N.C.G.S. § 1-75.7 (2003) provides in pertinent part that a court with proper subject matter jurisdiction “may, without serving a summons upon him, exercise jurisdiction in an action over a person [who] makes a general appearance in an action[.]” (emphasis added). “An appearance constitutes a general appearance if the defendant invokes the judgment of the court on any matter other than the question of personal jurisdiction.” Bullard v. Bader, 117 N.C. App. 299, 301, 450 S.E.2d 757, 759 (1994) (citation omitted). Further, “[o]ur courts have applied a very liberal interpretation to the question of a general appearance and almost anything other than a challenge to personal jurisdiction or a request for an extension of time will be considered a general appearance.” Id. (citations omitted).
    Defendant took the depositions of several witnesses, and signed a consent judgment in this action, thereby making a general appearance in the case. Wilson v. Wilson, 98 N.C. App. 230, 231, 390 S.E.2d 354, 355 (1990) (“Defendant's principal argument that the court had no jurisdiction over him since he was never served with process has no basis. By signing the consent judgment, which he admits, defendant made a general appearance in the case and thus submitted himself to the jurisdiction of the court.”) (citation omitted). See also Hale v. Hale, 73 N.C. App. 639, 641, 327 S.E.2d 252, 253 (1985) (“Defendant's contention that the court lacks jurisdiction over him is untenable. . . . When defendant signed . . . [a] consent judgment, he made a voluntary appearance in thematter and thus consented to our jurisdiction.”) (citing In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978)).
    We conclude that, notwithstanding any possible defect in the service of process, defendant made a general appearance in this case, and submitted himself to the jurisdiction of the court. Having reached this conclusion, it is unnecessary to address the issue of plaintiff's subpoena. Accordingly, the trial court's order dismissing for lack of personal jurisdiction is
    Reversed.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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