497 S.E.2d 713 | N.C. Ct. App. | 1998
Rebecca DUNKLEY, Plaintiff,
v.
Lee H. SHOEMATE, Eric B. Munson, David S. Janowsky, Preston A. Walker, Mary F. Lutz, Doe One, Doe Two, and Doe Three, Defendants.
Court of Appeals of North Carolina.
*715 Grover C. McCain, Jr., Chapel Hill, for plaintiff-appellant.
Patterson, Dilthey, Clay & Bryson, L.L.P. by Robert M. Clay, Donna R. Rutala, and G. Lawrence Reeves, Jr., Raleigh, for defendant-appellee Lee H. Shoemate.
Bailey & Dixon, L.L.P. by Gary S. Parsons and Kenyann G. Brown, Raleigh, for Nationwide Mutual Insurance Company and Alliance of American Insurers, amici curiae.
ARNOLD, Chief Judge.
This case involves plaintiff's motion to remove the law firm of Patterson, Dilthey, Clay & Bryson as counsel for defendant Lee H. Shoemate. This Court earlier dismissed the denial of plaintiff's motion as interlocutory. On appeal to the North Carolina Supreme Court, the Court held that the appeal was not interlocutory because it affected a substantial right which plaintiff will lose if not reviewed before a final judgment is entered. But see Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 420 S.E.2d 426 (1992) (holding as interlocutory an appeal from the denial of a motion to remove counsel and affirming dismissal). The Supreme Court remanded the case to this Court for a full hearing on the merits. Dunkley v. Shoemate, 346 N.C. 274, 485 S.E.2d 295 (1997).
Plaintiff argues Patterson Dilthey should be removed as defendant Shoemate's counsel because the firm had no authority from Shoemate to act on his behalf. This Court has held that an attorney may not represent a party without the authority to do so. Johnson v. Amethyst Corp., 120 N.C.App. 529, 532, 463 S.E.2d 397, 400 (1995) (citations omitted). In Amethyst, an attorney was retained by an insurance company to monitor a claim against an insured. The attorney had no contact with the insured but sought to set aside a default judgment entered against the insured in order to protect the rights of the insurance company. The Court held that the attorney had no authority to act on the insured's behalf when no contact took place between the attorney and the insured and representation was undertaken without his consent. Id. at 533, 463 S.E.2d at 400. In the instant case, Patterson Dilthey has neither spoken with Shoemate nor been given authority by him to act on his behalf.
Patterson Dilthey argues that Amethyst should be overturned. We are constrained, however, by our prior decision. The North Carolina Supreme Court holds that one panel of the Court of Appeals may not overturn the holding of another panel. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). We hold, therefore, that Patterson Dilthey lacks the authority to act on Shoemate's behalf.
Reversed
JOHN C. MARTIN and SMITH, JJ., concur.
