*1 IN THE OF COURT APPEALS DUNN CANOY v. (2006)] [180 solely appellant’s appellee’s counsel—like the because counsel— compliance Appellate has been casual in with somewhat Rules. job doing Our correct errors the trial court. are not We job appeals when we rules dismiss for non-substantive violations. Myrtle SCOTT NASH CTA Estate of Greeson DUNN, Administrator, Canoy, (unmarried); Plaintiff ROGER TERRY CANOY JAMES LESLIE deceased, CANOY and NELLIE MAE BRENDA FAYE CANOY BUCKLES wife, CANOY; (divorced); NANCY LOU and CANOY CAPPS JOSEPH FARRELL CAPPS husband, WILLIAM LARRY CANOY FAYE VOSS JANIE CANOY SR.; wife, CANOY; SUMNER and FARRELL B. RICHARD EDGAR CANOY and husband, SUMNER; COBLE DOROTHY HAROLD EUGENE CANOY and wife, JUDITH CANOY; wife, GLENN FRANCIS KEITH CANOY and SANDRA SADLON CANOY; wife, CANOY; ROBERT WAYNE CANOY and DELORES JOHNSON JULIE H. CANOY; wife, Guardian Ad for Litem unborn Defendants STUBBLEFIELD, children; No. COA05-794 (Filed 2006) 7 November Judges— annoyance attorney 1. required — recusal attorney

An did not demonstrate that recusal should have been allowed where the nothing record reveals that could be con- beyond personal bias, prejudice, strued judge’s as interest attorney’s reaction to the regarding agree- actions a settlement ment, ultimately which judge imposed sanctions. It has judge’s attempts disrupt poten- been held that a reaction tial not, more, require settlement does recusal. without Pleadings— 2. judge’s authority Rule 11 sanctions — authority judge impose

A did not lose his 11 sanctions attorney judge where the role assumed the of media- tor, ability preside which could have interfered his over proceedings the merits. Pleadings— process Rule 11 sanctions — notice—due attorney’s process

An rights due were not violated in the Rule 11 hearing notice of a sanctions where the told the attorney September ways hearing at a on 16 in which he attorney’s unprofessional believed the was conduct unethical and sanctions, was considering accepted that he an affidavit from attorney September questioned at a 30 hearing, and both attorney lawyers and other in the case. The APPEALS OF IN THE COURT *2 opportunity the him and charges against notice of the given thus heard. to be assignments of error — broadside— Appeal and Error—

4. compliance waived not by followed assignment of error technique of a broadside

The Appellant here in 1988. exceptions was eliminated a list of generally assignments of error broadside a number of included assignments of fact, none of the of but challenging findings the specific assign- any finding. Although specifically refer to error by exceptions, the the may have been referenced of error ments compliance with rules that Appeals not to waive of chose Court years. for 18 have been in effect to court Pleadings— Rule 11 sanction — letters

5. to take influence the court seeking to sent to a court Letters papers.” scope of Rule ll’s “other fall within the particular action ultimate find- assignment of error Appeal Error— 6. supporting assignments error ings of —no 11 sanctions as- attorney from Rule appealing Although an he purpose in letters improper an finding of signed error to find- assign error to properly not judge, he did had written to the issues, to cause to revisit settled his letters ings that he used process con- drafting unnecessary delay, commandeer and to binding findings These trary instructions. to the court’s furthermore, purpose; improper finding of the court’s ultimate findings. the court’s support in the record for ample there was improper Pleadings— 11 sanctions — letters 7. court — purpose finding after impose Rule 11sanctions

A was entitled court pur- improper attorney court met the from an that letters (violations mandating sanctions prongs pose part of the three improper purpose). sufficiency, sufficiency, or legal factual to court Attorneys— professional conduct — letters 8. . Formal did not violate 98 attorney’s to the court

An letters Bar, 1999) to State the North Carolina Op. (Council Ethics proposed order sent they responding to a were extent that opportunity for comment. prior directly judge without to a trial the letters were free to conclude is nevertheless judge The for other reasons. unprofessional IN THE COURT OF APPEALS

DUNN CANOY 9.Attorneys— professional power conduct — inherent

court — letters trial court did err concluding under its inherent powers attorney during that letters from a settlement mediated violated the Rules of Professional Conduct in that attempted they reargue new evidence, to introduce the merits of case, They pre- and cast light. another a bad are cisely type North communication Council of Carolina Op. State Bar 98 Formal 13 (1999) risking Ethics described as improper upon influence a tribunal. Attorneys— representation parties of several inher- — no *3 missing ent conflict — no that evidence informed consent attorney’s repre-

The record contained no evidence that an sentation of several in an children estate matter involved a con- necessary current conflict of interest or that he failed to have consent informed from his clients for an aggregate settlement. Attorneys— professional 11. powers conduct — inherent

court — letters to ample support There was for a trial finding court’s under its powers attorney 8.4(d) inherent that an violated Rule of the Rules through of Professional Conduct court along letters to the at hearings. his behavior Attorneys; Pleadings— 11 sanctions — letters unprofessional remanded conduct — sanctions court — findings

further attorney extent of sanctions for letters and which conduct interfered with settlement mediated the judge identify was remanded where the order did not the sanction as purely punitive, paid but indicated that the was to amount be opposing parties’ legal toward the fees. Even if the trial court monetary intended this sanction a flat be amount untied to attorney specific fees, explain findings there must be appropriateness of the sanction how the court arrived at figure. part

Judge concurring dissenting part. in in Calabria Appeal by defendants, Max D. Ballinger, for several from order entered March 2005 John III in Craig Randolph O. County Superior Appeals Court. in the Court Heard March 2006. OF APPEALS

IN THE COURT v. CANOY DUNN appellant. pro se, Ballinger, Max D. plaintiff on

No behalf of brief filed No defendants. behalf of brief filed GEER, Judge. imposing a an order

Attorney Ballinger appeals from Max D. Procedure Rules of Civil both Rule 11 of the $5,000.00 under sanction hold that the supervisory powers. We inherent trial court’s and the sanctions, the order does but that imposing in court did not err trial basis for the explain adequate findings of fact contain not therefore, ultimately imposed. We, the sanction selection of court’s of fact. entry of further remand for

Facts Myrtle Greeson represented of testatrix has several Canoy’s Ms. proceedings regarding Canoy’s lengthy legal in children Canoy children, Roger, was Canoy’swill, Ms. one of estate. Under property. Roger refused to real in the decedent’s granted a life estate ultimately however, resulted property, which pay on the the taxes siblings. with his litigation order, portion of the dece- pursuant a court

In October subject was sold order to the life estate property real dent’s paying various After and close the estate. pay outstanding taxes *4 Dunn, was unable to Administrator, Scott Nash expenses, the estate’s in money remaining to the were entitled which defendants determine complaint in which he interpleader and, therefore, filed an the estate to “inter- various defendants court order the to have the trial sought between them- their claims respective claims and settle plead their to the Clerk pay estate’s balance Mr. Dunn to the selves,” permit from County, “discharge Randolph in Superior [Mr.Dunn] Court Ballinger, representing July 2003, Mr. liability In in this matter.” all with counterclaims defendants, an answer filed several and cross-claims. Craig III on 10June by Judge John O. was heard

The matter Roger in which encouraged a settlement Judge Craig hearing, At the fee-simple title to exchange in his life estate would release Canoy remaining children land. The parcel of the decedent’s 18-acre remaining fee-simple of the decedent’s owners would become parties recommendation, the dis- Judge Craig’s Following acres. litigation, of future the likelihood details, including various cussed IN THE OF COURT APPEALS v. CANOY DUNN spouses taxation, necessary, the whether consent and out- attorneys. standing fees for the administrator and the various discussion, following exchange After this the occurred: Ballinger: really appreciate attempts .... I [the court’s] Mr. matter gracious accept to settle this most and we it. [sic] you accept The Court: Do the settlement on behalf of your clients? Ballinger: Yes, I do.

Mr. Judge Craig agreement: then summarized the Canoy

If Roger relinquishes prop- his life in all of estate the erty except eighteen approximately, the eighteen acres that are — creek, remaining north of the then the heirs will become holders property simple, of that south of the creek as fee free and clear property. the owners of

He added the that settlement “would almost have same effect” as if Roger died, explaining that his “life estate would end and all the other would outright heirs then become of it owners because the remainder would into . . . being interest come .”

Although Canoy represented by one child not Mr. Ballinger ob- jected settlement, Ballinger gave to the no that indication he did approve explained settlement and understanding his that:

We [(Mr. clients)] rights would renounce eighteen convey right, acres and title and interest to the eigh- Canoy Roger teen acres to side of the creek. And Roger all rights property would renounce to all the all monies Court anyone Clerk of or in the hands of the Administrator or just else. he would sign That renounce —he would a deed. response In Mr. Ballinger’s potential regarding concerns future parties, claims Judge Craig between added he understood the agreement be in language “would which there were full and com- plete every signed going way releases which so that no one would have a . .” claim the other . . *5 parties agreed

All then to the settlement record on the and under Judge Craig designated oath. Dunn primary Mr. as the draftsman. Judge Craig parties then notified the that he be out of would the coun- try beginning 17 June on 2004.

IN THE COURT OF APPEALS 2004, On 11 June Mr. Dunn mailed a draft order to the court and provided copy a to counsel on the same date. On 14 June court returned the order to Mr. Dunn with certain revisions. On 15 Ballinger June Mr. Judge Craig, copies sent counsel, to a prepared. draft order that had he He stated his letter: “Enclosed is copy a Judgment prepared my a I Consent am sign.” have clients subsequent In a affidavit, Ballinger Mr. explained it that he felt was simply proposed “easier to a judgment draft consent rather than take trying on the task of to address Mr.Dunn’s draft that time.” The fol- day, lowing Ballinger Mr. Judge sent second Craig stating: letter copy “Enclosed is a Judgment my a Consent I having am clients sign. Having you, presume you heard from I that as to satisfactory.” Ballinger explained enclosed is Mr. he believed his proposed agreement quiet settlement signed would title as to all who prevent it and litigation. further

On 25 June Mr. Dunn Ballinger, wrote Mr. him advised proposed his judgment acceptable, consent was not and enclosed a revised Mr. proposed July version of Dunn’s judgment. On 1 Dunn sent an revision, asking acceptable. additional whether it was July 2004, On 28 Mr. Dunn a final forwarded version of the consent judgment and be signed asked that it and August returned 2004. any He party comply added: “The failure of request may with this in contempt result motion being filed them.” On August 2004, Mr. Ballinger seven-page sent a letter to Mr. copy Dunn with a to Judge Craig raising numerous concerns about judgment, stating the consent it, that his clients sign declined to withdrawing “proposed settlement” embodied in Mr. proposed judgment. date, On the same Mr. Ballinger 13-page sent a directly Judge Craig, letter requesting that the reconsider signing proposed Mr. Dunn’s order. letter stated that both Mr. objected and his Judge Craig “signing] clients order negotiation” they without further and that “sign would not a consent contrary order that is Ballinger’s] to that which clients would [Mr. acceptable.” find to be September

On setting court forwarded a calendar September matter for hearing September 2004, 6On 10-page Judge sent a Craig letter to Russell'G. Jr., Walker, arguing claims, requesting the merits of rulings his clients’ merits, expressing on the opinion that the matter could not be presence parties. settled without the of additional *6 OF APPEALS THE COURT IN 36 DUNN CANOY (2006)] 30 [180 request- letters, a of Mr.Dunn filed motion Following these series Canoy be held in civil con- Ballinger and several children ing that Mr. non-compliance prior Judge Craig court orders. tempt for willful Mr. at which he informed September 2004 hearing a on conducted violated a Ballinger’s he Mr. conduct had Ballinger that believed Opinion and of the Revised Bar Ethics several North Carolina State expressed Judge Craig his belief of Conduct. also Rules Professional what description the settlement differed from Ballinger’s Mr. that actually hearing. the agreed to at 10 June 2004 was far “as as consent- hearing, Ballinger

At the Mr. announced that any to to judgment, I have not at time refused consent ing to the your today, if that sign thing that’s order judgment and will the the respectfully exceptions. We sub- their [my can’t withdraw clients] my exactly transcript last time. And the court mit what Later, Ballinger that, signed also.” Mr. consent to clients would it to hearing and handed his transcript of the 10June 2004 back refusing . . sign “I But . I’m not stating: asked them to it. clients they sign agreement reached 10 it. I didn’t recommend that sign [the will it.” June], they agreed Therefore, sign Judge Craig to it. I but sign Ballinger’s Mr. if clients declined suggested that a Mr. then might have conflict of interest. transcript, he signature. withdrew his hearing, Ballinger: “I am not Judge Craig

At the told Mr. end you, I contempt as citation toward but am looking so much of court impose seriously appropriate it’s inquire as to whether going Judge Craig 11.” then scheduled an additional under Rule sanctions September hearing for accepted an affi- September hearing, Judge Craig

At the 30 Judge Craig Ballinger explaining his actions. then from Mr. davit questioned lawyers regarding what and the other reviewing original hearing. Further, after had occurred attorneys, Judge Craig of the other concluded brief submitted one judgment without consent of he not enter consent could parties. all the concluding 2005, Judge Craig entered order

On March August 2004, letters dated 15 and June Ballinger’s interposed September scope within the of Rule were 2004 came justified under Rule 11. In purpose, sanctions improper for an addition, during “Mr. actions Judge Craig concluded that

IN THE COURT OF APPEALS hearing whereby September 16, previous he stated that his entirely were clients, letters the fault of gesture his and his theatrical *7 signing order, the consent best disingenuous were at concealments misrepresentations or facile to Court he attempted the since to dis- tance himself from the contents his own letters.” He concluded “appears that this conduct to 1.7(a)(1) have violated Rule and Rule 1.8(g) of the any Revised Rules of Professional Conduct” and “[i]n event, deception practiced his actions constituted a against this Court and wasted attorneys the Court’s time well as as the time of the involved, expense all at par- the ultimate of his clients and the other Judge Craig’s ties to these actions.” order stated that he chose to “improper, sanction this vexatious conduct” under the inherent powers of the court.

Judge Craig’s order stated that he had range considered the him, reprimand sanctions available including or censure, but had concluded, in discretion, his a monetary $5,000 “that sanction of appropriate authority under Rule 11 and the Court’s inherent over proceedings punish Mr. Ballinger misconduct, for his with the money paid Myrtle to be Canoy to the Estate of Greeson for use in its defraying expenses and (excluding fees Mr.

fees expenses) that have as a arisen result of the various hear- ings which were preparation held after for and attendance June 2004hearing.” Judge (1) also Craig Ballinger ordered that Mr. charge any his for expenses clients work or in connection preparation for, at, September hearing attendance the 30 that matters in the order be referred North Carolina State Bar. timely appealed

Mr. to this We Court. note that the appeal Judge record on indicated Craig appellee. that was the This that, Court entered an order ex stating mero motu although Judge Craig’s being appealed, “Judge order was Craig is not now nor [w]as ... party he ever a improperly to this action and named as a [he was] party appeal.” in the record on Court This thereafter dismissed party. a Craig as

I first challenges propriety Judge Craig’s ruling process by imposed. sanctions which were sanctions We any hold that he has failed demonstrate error. Ballinger argues that Judge Craig granted should have his judge any

motion recuse hearing himself from sanctions IN COURT OF APPEALS THE impar- judge tried before a whose party right has a be motion. “[A] Fie, questioned.” tiality reasonably be State v. cannot Therefore, a motion of (1987). “[o]n which disqualified] proceeding ... party, should [be] máy reasonably questioned, but not impartiality including his be personal prejudice . bias or . . has a limited to instances where [h]e Conduct, Canon party . . . .” N.C. Code of Judicial concerning a 3(C)(1)(a). disqualification moving bears the burden of demon party for disqualification actually exist.

strating objectively grounds This (2003). Lange Lange, by affidavits, party, supported explained moving Court has that “[t]he there may by presenting ‘substantial evidence that meet his burden part bias, prejudice on the personal or interest exists such a *8 ” County impartially.’ rule judge he would be unable to that of 778, 826, City Wilson, App. 775, 136 525 S.E.2d N.C. Johnston v. of 638, 647, Nakell, App. N.C. 411 S.E.2d (quoting In re 104 828 denied, N.C. appeal and disc. review 330 159, (1991), 164 dismissed 851, (1992)). 413 556 S.E.2d providing no evidence Ballinger

Mr. submitted affidavits Instead, Ballinger’s argu- personal bias, prejudice, Mr. sole or interest. annoy- appeal Judge Craig’s is Judge Craig and on that ment both to disruption warranted Ballinger’s ance with Mr. settlement specifically judge’s Court held that a reaction recusal. This has not, more, disrupt attempts potential a settlement does without require recusal: pos judge’s “explor[e]

We a decision to settlement note that trial judges to all trial a function be commended sibilities [is] judge. generally ground disqualifying and a a civil is not cases” 424, Roper 64, 76, (1982), 298 Thomas, App. N.C. S.E.2d 431 v. 60 denied, 191, (1983). disc. 308 N.C. 302 S.E.2d review ostensibly at judge angry a trial becomes Moreover, even where disqualification his is not negotiations, the failure necessarily required settlement Kamtsiklis, law. State under the v. 404, dismissed, appeal disc. App. 250, 258-59, 380 S.E.2d denied, (1989). N.C. S.E.2d 466 review Walkway Failure), 173 Corp. (In re Melton Tindall Pedestrian de (2005), 829-30 disc. review App. N.C. Beyond Craig’s nied, (2006). 628 S.E.2d 382 IN THE COURT OF APPEALS regarding reaction Mr. actions in connection with the agreement, settlement nothing the record reveals that could be con- any personal strued as demonstrating bias, prejudice, or interest Judge Craig.

Indeed, require recusal in require this instance would be to recusal whenever an engages in sanctionable conduct offending or irritating judge. surprisingly, Not Mr. has authority requiring cited no that a new judge determine whether con- duct before another judge Nakell, warrants sanctions. See at (“Our examination of re- the record bias, prejudice, veals no proof or require judge that would contempt whom the committed recuse himself from before conducting hearing the contempt].” (emphasis added)). In the [on absence some other Judge Craig personal indication that harbored prejudice bias Mr. Ballinger, improperly or was somehow case, interested in the outcome this we Mr. Ballinger conclude that has failed to that demonstrate the motion for recusal should have been allowed. Ballinger alternatively contends that Judge Craig lacked

authority to address sanctions because Judge Craig improperly had assumed the role of a proceedings. mediator in the is It true that 5(E) Canon of the North provides Carolina Code of Judicial Conduct as should act an arbitrator or mediator.” “[a] Additionally, that, hearing, correct at the 10 June expressed personal Judge Craig opinions his on the case stated my “in so giving expressing opinion you telling Iwhat *9 good idea, probably think is a it removes me from that air of neutral ity impartiality would, therefore, or and make it difficult for me to ethically hear of the motions.”

While, Judge as Craig acknowledged, these remarks could inter ability preside fere with his proceedings to over regarding continued action, Ballinger authority the merits of the Mr. has cited no for his “Judge Craig conclusion authority judicially that lost his discipline . Ballinger] . . See N.C.R. P. 28(b)(6) (“Assignments [Mr. error ... argument of which no reason or is or stated cited, authority (emphasis will be taken as abandoned.” added)). Nor any authority have we found supporting position. Ballinger’s Mr. Accordingly, Mr. Ballinger Judge has failed to demonstrate that Craig’s at hearing stripped authority conduct the 10 June him of impose sanctions. THE OF APPEALS IN COURT v. CANOY

DUNN Mr. Ballinger also argues that he was denied due procedural he was not federal state constitutions because process under the and opportunity adequate charges, sufficient given notice of the witnesses, the evi permission identifying a list respond, call or upon basing was its sanction order. The record dence which court indicates otherwise.

“ per- opportunity prior depriving a ‘Notice an to be heard and of law property process his are of due son of essential elements by the United guaranteed the Fourteenth Amendment of which ” Griffin, v. States Constitution.’ Griffin Corp. Dwyer, (1998) (quoting McDonald’s adequate notice, 888, 891 To receive (1994)). “[t]he pass alleged. ... In order to consti- bases for the sanctions must be person are to muster, whom sanctions be tutional charges against Id., him.” imposed be advised in advance must S.E.2d at 439. Ballinger’s Mr. con- Here, hearings regarding held the court two specifically September hearing, Craig told Mr. duct. At the 16 ways Ballinger’s Mr. had Ballinger in what conduct run he believed Op. 13 Rules of afoul of 98 Formal Ethics Revised Craig 1.8(g), 8.4(d). Judge also 1.7(a)(1), Professional Conduct considering that specifically Ballinger imposing informed Mr. he was accepted September hearing, At the Rule 11 sanctions. questioned Ballinger both Ballinger an affidavit from Mr. as lawyers given as the in the case. Mr. was thus well other given him an “charges” against notice of the in advance and hold, process opportunity heard. We that Mr. due to be fully protected. rights were

II by argues imposing next trial court erred provides: sanctions under Rule Every party represented pleading, motion, paper and other attorney by attorney signed shall one of record be least name, The sig- in his whose address shall be stated.... individual party him nature of an or constitutes certificate motion, paper; has that to the best pleading, he read the other information, knowledge, of his and belief formed after reasonable *10 inquiry by existing warranted law grounded is well in fact and is it extension, modification, argument for the or good or a faith IN THE OF COURT APPEALS existing law, interposed reversal of that it is improper purpose....

N.C.R. Civ.P. 11(a). Supreme

Our Court has held that trial court’s decision to “[t]he impose impose mandatory or not to 1A-1, sanctions under N.C.G.S.§ Rule 11(a) legal is reviewable de as a novo issue.” Turner v. Duke Univ., 714 (1989). describing S.E.2d In the nature of novo review,” explained: this “de Court has appellate court will determine whether trial

[T]he court’s conclusions of law judgment its or determination, (2) whether trial supported by court’s conclusions of law are its fact, findings of and (3) whether the of sup- fact are ported by sufficiency appellate of the evidence. If makes three affirmative, these determinations in the it must uphold impose the trial deny imposi- court’s decision to mandatory tion 1A-1, sanctions under 11(a). N.C.G.S. Rule § of Id. (emphasis added). Findings Fact,

A. The of With respect to Judge Craig’sfindings of fact, we must first deter mine properly whether Mr. has assigned error to them. Mr. comply has failed with the current version of the Appellate he Rules: lists 19 assignments error and follows each “exceptions,” with a which, turn, list of “excep refer to individual copy tions” written into Craig’s order. As this Court attorneys reminded Weyerhaeuser White v. Co., (2005), assigning this manner of error eliminated in 1988:

[Apparently operating based an version of outdated our Appellate Rules, Weyerhaeuser only assigned has error certain law, conclusions but each of assignments under of error has typed Exception[s],” listed “Defendant’s referring “exceptionfs]” copy

onto a Opinion the Commission’s and Award. . . . In 1988, put Rule 10 formality was amended “to end exceptions of marking transcript in the of the proceedings as for- merly required 10(b)(2). Accordingly, language 10(b)(2), appeal former Rule requiring the record on reflect *11 APPEALS THE COURT OF IN v.

DUNN CANOY (2006)] [180 error, assigned as finding of fact separate exception for each 10(b)(2).” State v. version of Rule the current was deleted from (Meyer, 404-05, 875, (1991) 410 S.E.2d Canady, 330 N.C. dissenting). ... J., required appellant is 10], an current

Under [the finding of fact that it contends specifically assign error to each “[Findings of fact to by competent evidence. supported not in his argued error and appellant] assigned has not which [an conclusively appeal.” Static Control on are established brief App. 599, 603, 568 S.E.2d Vogler, 152 N.C. Components, Inc. v. generally Thus, assignment (2002). single [of error] “[a] sufficiency support numerous of the evidence to challenging the N.C.R. under ... is broadside and ineffective” findings of fact 375-76, Wade, App. 372, v. 72 N.C. App. P. 10. Wade denied, (1985). S.E.2d 616 266, disc. review sufficiency challenge the Weyerhaeuser has failed to Since fact, they specific findings of are bind support the ... evidence to rules. ing appeal under the current on original). 659-61, (alterations at 392-93 Id. at assign- case, Ballinger includes a number of broadside In this Mr. findings of fact. None of the challenging the generally ments of error any Al- specifically finding of fact. of error refers assignments may specific assignments of have referenced though Ballinger Mr. approach with the by exceptions, that is inconsistent use of his error have been rules, and, given the fact that these rules appellate current our discretion to. years, we choose not to exercise in effect for 18 Dep’t Transp., v. N.C. compliance with those rules. See Viar waive (2005) (“It is not the role of the 400, 402, 610 S.E.2d appeal appellant.”). an for an appellate courts ... to create specifically described in the only findings of fact that are Craig’s Judge number —are although assignments error— improper an Ballinger’s writings were filed for findings (1) that Mr. improper vexatious, (3) that he purpose, (2) that his conduct likely was or was to be adverse represented a client whose interest aggregate settlement client, participated he an another findings will his clients. These obtaining proper consent from without Ballinger’s overall with each of Mr. below in connection be addressed properly assigned error to has not arguments. Because appeal. fact, they binding are findings of of the other APPEALS IN THE COURT OF DUNN CANOY Applicability of Rule 11 B. contends that his June, August, September let scope however, Craig, do not fall within the of Rule 11.

ters only pleadings, that Rule ll’s reference not to motions and concluded party attorney” paper[s] represented also “other of a made but *12 applicable. question P. 11(a). Rule 11 N.C.R. Civ. whether letters yet may Rule judges papers” to “other under 11 has not constitute appellate Compare addressed North Carolina’s courts. been App. 424, Hinton, 421, 239, (1997) v. 127 N.C. 490 S.E.2d 241 Williams notify scheduling apply 11 held not to because failure to con (Rule motion, paper”); Lyall, or Ward v. 125 N.C. “pleading, flict not a other 735, 742, 290, App. 732, 740, denied, 482 S.E.2d disc. review 346 apply (Rule S.E.2d 573 11 to failure to 487 held not because motion, a promptly complaint pleading, serve summons and are, however, Rule paper). other Decisions under the federal 11 Turner, in N.C. at interpreting considered instructive our rule. 325 164, S.E.2d 381 at 713. reluc- properly

As the First has noted: “Courts have been Circuit paper’ weighing generally tant to characterize a letter as an ‘other in Zambarano, Cir. Legault 24, (1st Rule 11 v. 105 F.3d 27 sanctions.” Brignoli Curley Roberts, Assocs., 128 1997). Curley See also v. & 613, 1989) (“The . . Rule 11 (S.D.N.Y. F.R.D. contention . that apply any paper court, letter, to such is not should sent as a When, however, a to a with the supportable.”). judge letter is sent action, that it take some federal courts intent influence subject to be in a motion to Rule 11. have considered the letter effect (In Wilson, Elser, Moskowitz, v. Edelman & Dicker re See Klein Equities, Ltd.), 148, (2d (“Courts Cir. Highgate 2002) 279 F.3d only in generally [applied have Rule 11 where the letter to letters] question disguise, recognizing was in a motion in that failure to effect Legault, substance.”); sanction such cases would elevate form over applied at 27 to a with the (holding 105 F.3d letter sent injunctive Lopez respect relief); intent to influence the court 8625, Constantine, 5915, 95 Civ. 1997 U.S. Dist. LEXIS v. 94 Civ. n.6, 18, 1997) (“Those *3 (S.D.N.Y. at *9 1997 WL at n.6 June for cases in which a letter has served as the basis Rule 11 sanctions party sought in which have a court have involved instances has it.”). take action reliance on papers” reference agree

We with these courts that the to “other should, least, encompass letters to a that seek to forwarded particular would take action. To hold otherwise influence court to IN THE COURT OF APPEALS

DUNN CANOY v. parties encourage compliance to avoid with Rule 11 submitting let- ters rather than formal motions and pleadings truly an undesirable — result. Mr. letters were sent with persuading the intent of Judge Craig proposed not to enter Mr.Dunn’s order and to revisit the letters, merits of his therefore, clients’ claims. The fall within the scope of Rule 11. next challenges the trial court’s finding his let “interposed improper

ters were purpose.” plead “[W]hether ing, paper improper motion or other purpose filed for an must be objective reviewed under an Bryson Sullivan, standard.” v. 330 N.C. 644, 663, (1992). improper purpose An includes “causing] unnecessary delay or needless increase in the cost of liti gation.” 11(a). N.C.R.Civ.P. Hurley, See also Brown v. (1996) (“An improper purpose ‘any

purpose other than one to rights put vindicate ... or right claims of ” proper to a (quoting Moore, test.’ Mack App. 87, 93, S.E.2d 689 (1992)).

Although we have Ballinger concluded that Mr. assigned error to finding improper of an purpose, properly he did not assign error findings trial court’s other that he used his letters to revisit set- issues, unnecessary tled to cause delay, and to commandeer the draft- process ing contrary to the court’s instructions. These are binding appeal and the trial court’s ultimate finding that interposed improper letters were purpose. See, for an e.g., Turner, 167, 325 N.C. at 381 S.E.2d at 715 (disrupting opposing coun- preparation sel’s trial improper constituted an purpose); Davis v. Mental Health/Dev. Durham Disabilities/Substance Abuse Area Auth., App. 100, 109-10, 237, 598 S.E.2d (2004) 243-44 (improper purpose plaintiff found when sued in retaliation and in gain leverage order to in negotiations).1 ^[7] Once the trial court found that Mr. letters met the improper purpose prong 11, of Rule impose it was entitled to sanc Steele, tions. See Dodd v. App. 632, 635, 442 S.E.2d 365 (“There parts analysis: are three to a (1) Rule 11 sufficiency, factual (2) legal sufficiency, improper purpose. any A violation of one note, nonetheless, ample support 1. We that our review of the record reveals for Judge Craig’sfindings Indeed, Ballinger appeal on this issue. admits in his brief on attempting that he letting abandoning “was ... to resolve the matter the ‘settlement’ and parties attempt another Court resolve the matters at issue between the or to bring parties try other in and to work towards a settlement or resolution trial after they brought were in.” 45 OF APPEALS

IN THE COURT v. CANOY DUNN N.C. 30 under imposition of sanctions requirements mandates of these denied, N.C. 337 omitted)), disc. review citation (internal Rule 11.” Craig’s deci therefore, uphold Judge We, (1994). under Rule 11. impose sanctions sion to

Ill also challenges Judge Craig’s decision impose “North Carolina powers of the court. under the inherent sanctions authority inherent exercise of a court’s law is . . . clear that the case Diagnostic v. Private Couch for abuse of discretion.” is reviewed appeal dis App. 658, 663, (2001), Clinic, (2002). S.E.2d 562 denied, 355 N.C. and disc. review missed only “power authority encompasses not A trial court’s inherent court, duty discipline attorneys, who are officers but also the Hunoval, In re unprofessional conduct.” subject power to this Unprofessional conduct (1977). S.E.2d deficiency in malpractice, or charac duty misconduct, “includes duty except negligence or mis mere ter, . . dereliction of . omitted). quotation marks management.” (internal Id. conduct, trial court con- unprofessional

Here, identifying Op. send- Ethics 13when violated 98 Formal that Mr. cluded Op. addresses Ethics the court. 98 Formal ing his letters to judge or writing lawyer [may] communicate whether “a pending before the proceeding that is judicial about a other official that a broad opinion acknowledges judicial official[.]” written permit “unlimited applicable ethics rules would reading of the simultaneously provided to the copy long so as communications” admin- “prejudicial to the is not parties and the communication other Nevertheless, opinion concludes: justice.” Id. istration of tribunal, upon a improper influence appearance of To avoid *14 judicial judge or other with a communications informal written following: the be limited to official should legal or proposed as a order communications, such Written 1) instructions; pursuant to the court’s memorandum, prepared cir- emergencies, changed to relative 2) Written communications may procedural affect the matters that cumstances, scheduling or to the due request a for a continuance case such as status of a attorney; an litigant a br health of with the consent to the tribunal sent Written communications

3) unrepresented; and party if lawyer opposing or opposing the IN THE OF APPEALS COURT DUNN CANOY 4) Any permitted by other communication or the law rules or procedures particular written of the tribunal.

Id. present case,

In the Mr. Ballinger’s the trial court concluded that contrary 15 and 16 June letters were sent court’s to the instruc- proposed note, tions that directed Dunn to draft the order. We however, responding that Mr. letters were to Mr. Dunn’s proposed why, explaining according Ballinger, order and to proposing order an was in error and order. We alternative cannot lawyer agree necessarily with profes- the trial that a commits if simply response pro- sional misconduct he a letter sends in to a posed directly order that was to judge submitted the trial without prior opportunity lawyer for the to comment on the draft order. contrary

A construction of the Rules of Professional Conduct Op. would be with (1998), inconsistent 97 Formal Ethics which provides: lawyer the give opposing opportunity to an to comment

[F]ailure upon object proposed or to a order before it is submitted to the judge unprofessional may prejudicial be to the administra- justice. professional practice lawyer tion of It is the more for a to provide copy opposing proposed counsel with a of a order in delivering proposed advance of judge order to the thereby give opposing adequate an opportunity counsel to upon object proposed comment to the order. minimum, requires lawyer

At a 3.5(a)(3)(ii) Rule to furnish lawyer copy opposing proposed the neously with a order simulta- delivery proposed its judge and, to the if the order simultaneously, is furnished the opposing 3.3(d) to counsel requires lawyer parte to the disclose ex com- lawyer opposing copy munication that the has received proposed opportunity present but an order has not had objections judge. comments or (Emphases added.) opinion anticipates party This thus that a will opportunity present objections have an comments and regarding judge. the draft order for presenting To sanction objections such comments or in a letter rather than some formal doc- especially ument would substance, light seem elevate form over of our holding subject in this case that such letters are to Rule 11.

IN THE COURT OF APPEALS DUNN CANOY short, responding Ballinger’s In to the extent that Mr. letters were proposed order, they to Mr. Dunn’s we hold that did not violate Op. Nevertheless, to con- Judge Craig Formal Ethics was free clude, did, they unprofessional reasons, as he that were for other violating such as Rule 11.

[9] Wereach a different conclusion respect Mr. Ballinger’s attempted August September and 6 2004 letters. Those letters evidence, case, Mr. reargue introduce new the merits of the and cast They precisely type light. Dunn in a bad are of communication 98 Op. improper upon influence risking Formal Ethics 13 described as parte Op. (“[I]nformal tribunal. See Formal Ethics ex written directly copied communications, judge whether addressed to the may opportunity inquiry, as in this be used as an to intro evidence, case, argue duce new the merits of the or to cast the party not, opposing light.”). Judge Craig or counsel in a bad did there fore, in concluding err that these letters violated the Revised Rules of Professional Conduct.

[10] Judge Craig also concluded that Mr. Ballinger violated Rule Rule 1.7(a)(1) 1.8(g) the Revised Rules Professional provides lawyer represent 1.7(a) Conduct. Rule that “a shall not representation client if the involves a concurrent conflict of interest.” provides lawyer represents who two or more 1.8(g) Rule “[a] participate making aggregate clients shall not settlement of the clients, gives claims of or . . . unless each client informed consent, writing signed in a the client.” agree Ballinger

We with Mr. that the record contains no evi- representation Mr. suggesting Ballinger’s dence of several of the Canoy children involved a concurrent conflict of interest or that he necessary regard- from his failed to have the informed consent clients ing aggregate settlement. Nor do those of fact assigned that Mr. violated as error conclusion provisions Judge Craig of the Rules of Professional Conduct. these appeared focusing Ballinger’s during Mr. conduct to be necessarily September hearings, but that conduct does not violate 1.8(g). 1.7(a) Rule or Rule Judge Craig, however, also concluded that violated professional provides which that it is misconduct for a 8.4(d),

lawyer prejudicial “engage in conduct that is to the administration justice.” Judge Craig’s findings regarding numerous virtually points letters, attempts reopen all of the of con- his “to *16 48 IN THE COURT OF APPEALS

DUNN v. CANOY App. (2006)] [180 during negotiation tention . .. that had been laid to rest of the set- 10,” Ballinger’s pro- tlement on June and Mr. behavior at the hearings ample support Judge vide Craig’s for conclusion that Mr. violated this rule. sum, respect imposition

In of sanctions under the trial powers, court’s inherent Judge Craig we conclude that erred when he Ballinger’s determined that Mr. 15 and 16June 2004letters violated 98 Op. Ballinger’s representation Formal Ethics 13 and that Mr. violated Rules 1.7(a)(1) Revised of Professional Conduct and 1.8(g). We con- err, however, clude Craig did not when he that Mr. concluded Ballinger’s September 15August and 6 2004letters violated 98 Formal Op. Ethics Mr. Ballinger’s and that conduct violated Revised Rule of Professional 8.4(d). Conduct “ ‘questions

Although propriety ordinarily and ethics are the consideration of the Carolina Bar’ because that [North State] organization expressly was legislature created to deal with questions, power . regulate attorneys such . . the the conduct of concurrently by held the Bar and the court.” Gardner v. N.C. State Bar, 285, 287-88, 517, 316 N.C. (quoting Proctor, 485, McMichael v. 243 N.C. (1956)). S.E.2d proper The trial court’s regarding Ballinger’s conclusions viola- tions of the justify impo- Revised Rules of Professional Conduct sition of powers, sanctions under the court’s inherent and Mr. Ballinger has failed to demonstrate that the court abused its discre- tion in doing so.

IV Finally, Mr. Ballinger contends that the trial court erred with respect imposed. to the amount of the sanctions In reviewing the appropriateness particular of a sanction under either Rule 11 or the powers court, inherent we exercise an abuse of discretion Turner, standard. 325 N.C. at (Rule 11); Couch, 381 S.E.2d at 714 (inherent 554 S.E.2d at powers). present The trial court in the case sanctioned Mr. only $5,000.00,explaining paid that this sum was to be to the dece- “defraying expenses dent’s estate for (excluding fees expenses) fees and that have as a arisen result of the hearings various preparation which were held after for and atten- hearing.” Judge dance at the June Craig’sfindings of fact are permit imposed. sufficient to this Court to review the sanction

IN THE COURT OF APPEALS appeal explain why figure $5,000.00 The order on does not why appropriate selected or the trial court considered it an sanction. paid Although the order directs that the amount be to the estate to defray attorneys’ expenses, fees and the order contains no regarding expenses the fees and incurred. court, making attorneys’ fees,

A trial explain award of must why particular appropriate award is and how the court arrived at particular See, e.g., Wrenn, amount. App. 156, Davis v. *17 160, 708, (1995) 464 S.E.2d 711 an (reviewing award of fees under denied, 11), 305, cert. (1996). Specifically, N.C. S.E.2d 69 attorney’s usually “an requires award of fees that the trial court enter findings expended, required, of fact as to the time and labor skill cus tomary work, experience ability fee for like of the competent Couch, App. based on evidence.” 672, at S.E.2d (remanding findings respect at 366 for further to an power award of fees court). under the inherent of the purely punitive dissent contends that “this case involves a sanction,” and, result, necessary as a findings no of fact were for this appropriateness Court to evaluate the of the disagree- sanction. The opinion dissent, however, why ment between this and the illustrates explanation necessary. additional in Nowhere the order does the identify purely punitive sanction,” trial court this sanction “a as if that hand, was indeed the trial court’s intent. On the other the order states purposes compensate that at least one of the sanction’s is to other parties attorneys’ expenses. cannot, therefore, fees and We deter- precise mine from the face of the order the nature of the sanction. Even if the trial court intended that this sanction be a flat mone- tary any specific attorneys’ fees, amount untied to our case law has appropriate competent findings never held that of fact—based on evi- unnecessary support dence—are a trial court’s choice of sanction. Pulley, Watson, King Lischer, P.A., App. See Hummer v. & 140 N.C. 349, $2,500.00 536 S.E.2d (2000) (reversing sanction of imposed compensation attorney’s malpractice as for an increase in insurance deductible finding when the order contained no that he purchased had such insurance and the did evidence Davis, finding pending suit); that the increase was due to the 121N.C. App. 160, (reversing remanding 464 S.E.2d at 711 for additional findings nothing explain appropri- when “there is in order imposed attorney’s ($6,692 fees) ateness of the sanction in or to indi- figure”); cate how the court arrived at that Rivenbark v. Southmark IN THE COURT OF APPEALS App. Corp., App. 420-21, 196, 93 N.C. 200-01 may imposed (holding mechanically,” that “sanctions not be but “[r]ather, carefully weighed the circumstances of each case must be properly severity so that the sanction takes into account the of the party’s disobedience”). may necessary findings

While the same of fact not be for a flat monetary attorneys’ fees, amount for an as award of there must still explain, holds, appropriateness findings be as Davis of the and, monetary amount, sanction if it involves a how the ar Contrary rived at figure. suggestion dissent, of the neither Cmty. Feldmann, Davis Lake Ass’n v. 138 N.C. Oglesby Nichols, Inc., (2000),

S.E.2d 870 nor v. S.E. denied, disc. review 407 S.E.2d 839 only $400.00 $500.00 (1991), involving modest sanctions of respectively, have.any language holding opinions otherwise. The con parties tain no indication the sanctioned in those cases chal adequacy lenged of fact regarding the nature of the fact, Oglesby In punitive sanction, sanction. did not involve a but pay expenses rather was award “to incurred defendant’s attor ney responding to” the motion filed violation of Rule 11. Id. at 681, 401 S.E.2d at 95. *18 case, any findings regarding attorneys’

In this without of fact expenses incurred, impossible fees and it is to determine whether the $5,000.00 expenses awarded to the estate for and fees “that have hearings prepa arisen as a result of the various which were held after 10, hearing” ration for and attendance at the June 2004 exceeds the expenses actually reasonable fees and incurred. While the actual fees expenses may $5,000.00, and well be less than we cannot assume that appeal. to be the In actual, case the event that the sum exceeds the expenses, explanation why reasonable fees and there is no as to trial court feels that the excess be should awarded to the estate. See Mills, Inc., App. 500, 501, 774, Lowder v. All Star 103N.C. 405 S.E.2d (upholding $2,918.82 attorneys’ 11 awarding 775 sanction in fees expenses $1,000.00 paid and an additional to be to the clerk of superior sanction), denied, court as an additional disc. review 330 118, Only (1991). N.C. 409 S.E.2d 595 if the trial court find includes ings regarding particular of fact it came how to choose the sanction imposed repre can this Court determine whether or not the sanction Spicer Spicer, App. 283, sents an abuse discretion. Cf. that, (2005) (holding even under an abuse standard, discretion trial court must . . . make sufficient find- “[t]he THE OF APPEALS

IN COURT ings reviewing of fact and conclusions of law to allow the court to judgment, legal determine whether a and the conclusions that under- it, represent application law”). lie a correct

We, therefore, imposition affirm the trial court’s of sanctions Ballinger. remand, however, We on the findings for further issue of the extent of the sanction. part, part.

Affirmed in reversed and remanded in Judge McGEE concurs. part part sepa- CALABRIA in concurs and dissents in in a opinion.

rate CALABRIA, part part. Judge, concurring dissenting in majority opinion parts respect- I through concur with the I III. I fully required dissent on the findings issue whether additional were support punitive the amount of a sanction.

This Court imposing reviews order a Rule 11 sanction de novo. Univ., Turner v. Duke (1989): S.E.2d Specifically, 1) we determine whether the trial court’s conclusions of judgment determination,

law 2) its whether the trial supported by fact, of law findings 3) court’s conclusions are its supported by whether the of fact are sufficient evidence. Id. properly imposed, After this Court determines Rule sanction was then the amount of the sanction is reviewed for an abuse of discre- Id., tion. 325 N.C. at 381 S.E.2d at 714. “Under the abuse-of-dis- standard, cretion we review to determine whether a decision is man- ifestly unsupported by reason, arbitrary or so that it could not have Group Int’l, been the result of a reasoned decision.” Mark Inc. v. Still, App. 565, 566, (2002).

Specific findings required of fact are for this Court to conduct a imposition However, de novo review of the of sanctions. the trial required findings regarding court is not to make additional the properly imposed amount of the sanction. majority Spicer quotes Spicer, App. 283,

The v. 168 N.C. 607 support findings of fact (2005), S.E.2d its contention must monetary However, made the of a the regarding be amount sanction. majority’s upon Spicer misplaced. majority opines reliance The THE OF APPEALS IN COURT App. standard, ‘the

Spicer under an abuse of discretion held that “even must, however, findings make sufficient of fact and con- trial court to determine whether a reviewing of law to allow the court clusions it, represent a legal and the conclusions that judgment, underlie ” Spicer, application Upon thorough reading of correct of the law.’ only quoted applied review language above it is clear that the fur- support guidelines which deviated from the of a child order Spicer, specific the child’s needs. See 168 N.C. findings ther about App. 287, language There is no indication that the at 607 S.E.2d at 682. indirectly imposi- majority directly upon the quoted bears or tion of sanctions. majority’s upon Wrenn, v. disagree

I also with the reliance Davis denied, App. 156, (1995), 121 N.C. 464 S.E.2d 708 cert. Davis, (1996). findings

472 S.E.2d 69 In the trial court failed to make imposition upon plain supporting of fact of a sanction based Id., alleged tiff’s violations. findings

at 711. This remanded the case to the trial court for Court In imposing doing, fact to a Rule 11 sanction. so this Court findings regarding also noted that the trial court failed to make attorney’s However, specifically did not amount of fees. Id. Davis regarding must be made the amount of an findings hold that imposed fact regardless sanction of the nature of the sanction. punitive purely in case us ordered a sanction The court before defray Myrtle Canoy’s expenses the Estate of Greeson and attor- ney’s attorney’s Davis, fees. Unlike the award of fees the sanction imposed “punish for his misconduct.” this case necessary attorney’s such, findings As were to determine the time no required, customary work, expended, and labor skill fee for like experience ability. previously upheld punitive

Our courts have sanction without specific requiring findings of fact as to the amount of the sanction. Community Feldmann, v. Davis Lake Ass’n $400.00 for rule (2000) (trial court’s sanction upheld requiring findings violations with no mention of of fact as to Nichols, App. 676, 681, amount); Oglesby Inc., 101N.C. S.E. $500.00 pay “to the (1991) (trial S.E.2d court’s sanction of superior for the use and benefit of defendant’s counsel” clerk of analysis majority upheld regarding fact). with no Community Oglesby calling distinguishes Davis Lake However, cases, in these the court had sanctions “modest sanctions.” *20 IN THE COURT OF APPEALS DUNN CANOY App. (2006)] N.C. [180 any discretion to determine whether a “modest sanction” sanction was warranted. Lyall, App. (1997),

In Ward v. 482 S.E.2d 740 we appropriateness purely punitive monetary examined the of a sanction $8,500.00imposed only failing for not Rule 11violations but also promptly complaint. serve a summons and We held that failure to promptly complaint serve a and summons was not a violation within scope imposition sanctions, of Rule and the trial court’s violations, properly imposed. Id., which included these was not App. necessary sepa- at 482 S.E.2d at 742. Remand was proper improper rate a sanction from an sanction. We reasoned: appropriate The trial court’s order states that it arrived at the monetary imposed plaintiff by upon generally sanction consider- ing, alia, severity inter of the violations and the amount nec- essary to deter further misconduct. Since the trial court did not impose separate type misconduct, sanctions for each it is impossible $8,500.00 for us to determine how much of the in mon- etary improper sanctions stemmed from the trial court’s sanc- tioning plaintiff for his in serving actions the summons and complaint. reason, For this we remand this matter to the trial hearing appropriate court for a new to determine the amount of imposed sanctions to be under Rule Id., 125N.C. 482 S.E.2d at 742-43. us, majority

In the case before has determined that the order adequate imposition contained of fact to of sanc- Specifically, tions. the trial court found that did not obtain parties along with an mailing the consent of the before letters unso- judgment judge. Also, Ballinger licited draft of the consent refusing sign judg- wrote additional letters to the court the consent prepared letters, In ment Dunn. also attempted open to readdress issues that had been resolved in gave Ballinger again when his clients their consent to the settlement. any sign agreement. mailed a letter which he refused to consent During September hearing, Ballinger a 16 stated that he had not judgment sign thing “at refused and will time to consent to the today.” Ballinger proceeded sign then the consent order on behalf clients, signature of his but withdrew his when he was informed signing the court that the order would create a conflict of interest him between and his clients. IN THE COURT OF APPEALS

STATE v. PULLEY *21 findings severity The trial court’s of fact demonstrate the of Ballinger’s rule findings violations and these same are sufficient to support finding a properly imposed. sanction in this case wás Additionally, explained the trial judge in his order his reason for imposing $5,000.00 a sanction. panoply options

The Court has considered the full of available to it in considering impose whether sanctions Ballinger, including reprimand the lesser censure, sanctions of running suspension more severe sanctions such as the of monetary law penalties up license or substantial $10,000. The concludes, discretion, monetary Court in its that a $5,000 appropriate sanction of under Rule 11 and the Court’s authority inherent proceedings punish over Mr. Ballinger for his misconduct.... findings made reasoning support trial court and the manifestly imposing unsupported by sanction are not reason or arbitrary they

so could not have been the result of a reasoned contrary, decision. On the the trial reasoning court’s is sufficient to allow us to findings determine that sufficient of fact imposed. sanction majority’s I

Since believe the requiring decision the court to specific make findings punitive of fact as to the amount of a sanction required by láw, is not our respectfully statutes or case I dissent on this issue.

STATE OF NORTH CAROLINA v. EUGENE RICKY PULLEY

No. COA05-892 (Filed 2006) 7 November 1. Identification highway— Defendants— encounter

photograph by neighbor findings shown —

The trial admitting court did not err in-court and out-of- findings identifications defendant where which no assigned error was detailed circumstances which defendant was seen along highway body near where his wife’s was even- tually found, to which error was assigned but which supported by competent were evidence detailed the identifica-