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Johnson v. Amethyst Corp.11/7/1995
WYNN, Judge.
Plaintiff, Daphne Johnson, appeals from the trial court's judgment in favor of defendants, Amethyst Corporation and Amethyst Charlotte, Inc., d/b/a Amethyst Hospital and John Joseph Bartolotta. We reverse and order a new trial.
In April 1991, Ms. Johnson was an in-patient at Amethyst Hospital, an alcohol and drug rehabilitation hospital that is owned and operated by defendants Amethyst Charlotte, Inc. and Amethyst Corporation (collectively referred to as "Amethyst"). During that time period, Mr. Bartolotta was employed by Amethyst as a clinical assistant.
On 8 April 1991, while Ms. Johnson was lying in her hospital bed, Mr. Bartolotta took her vital signs and allegedly molested her. Inasmuch as the specific acts which form the basis of her allegation are not at issue, it is sufficient to indicate that the acts indicated in the record, if proved, would support her allegation.
On 19 April 1991, a counselor, Claire Parker, organized a meeting of all female patients at the hospital to inquire whether any female patients had been sexually assaulted at Amethyst. Four patients revealed that they had been sexually molested -- all by Mr. Bartolotta. These allegations led to Mr. Bartolotta's plea of guilt and resulting convictions of assault on a female in each of the four cases.
On 8 June 1992, Ms. Johnson sued Mr. Bartolotta and Amethyst for medical malpractice, negligent misrepresentation, fraud, intentional infliction of mental and emotional distress, and negligent hiring and/or supervision of an employee.
When Mr. Bartolotta failed to file an Answer within the requisite time period, an entry of default was obtained from the Clerk of Superior Court of Forsyth County on 24 September 1992. However, when plaintiff moved for a Default Judgment, Attorney Mark C. Kurdys filed a motion to set aside the entry of default "in the absence and without the knowledge of John Joseph Bartolotta." On 12 October 1992, the plaintiff filed an objection to the appearance by Attorney Kurdys on behalf of Mr. Bartolotta without the knowledge of Mr. Bartolotta and in violation of Rule 5.6 of the N.C. Rules of Professional Conduct. On 2 November 1992, Judge Wood entered an Order setting aside the Entry of Default.
Following a jury verdict on 8 February 1994 in favor of defendants, plaintiff appealed.
I.
The plaintiff first contends that the trial court erred by setting aside the Entry of Default. She argues that since Attorney Mark C. Kurdys had not established an attorney-client relationship with defendant Bartolotta, he had no authority to move to set aside default on behalf of Mr. Bartolotta. We agree.
No person has the right to appear as another's attorney without the authority to do so, granted by the party for which he is appearing. Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 319, 47 S. Ct. 361, 362, 71 L. Ed. 658 (1927). North Carolina law has long recognized that an attorney-client relationship is based upon principles of agency. See State v. Ali, 329 N.C. 394, 403, 407 S.E.2d 183, 189 (1991). Two factors are essential in establishing an agency relationship: (1) The agent must be authorized to act for the principal; and (2) The principal must exercise control over the agent. Vaughn v. North Carolina Dep't of Human Resources, 37 N.C. App. 86, 91, 245 S.E.2d 892, 895 (1978), aff'd 296 N.C. 683, 252 S.E.2d 792 (1979).
The record on appeal indicates that Attorney Kurdys filed the Motion to Set Aside Default "in the absence and without the knowledge of John Joseph Bartolotta" and that he had been retained by insurer St. Paul Fire and Marine Insurance Company, Amethyst's insuranc
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