O'Herron v. Jerson

Court of Appeals of North Carolina

O'Herron v. Jerson

346 S.E.2d 298, 82 N.C. App. 434, 1986 N.C. App. LEXIS 2463

CourtCourt of Appeals of North Carolina

DecidedAugust 5, 1986

DocketNo. 8520SC1051

StatusPublished

Cited by1 cases

This text of 346 S.E.2d 298 (O'Herron v. Jerson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Herron v. Jerson, 346 S.E.2d 298, 82 N.C. App. 434, 1986 N.C. App. LEXIS 2463 (N.C. Ct. App. 1986).

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Opinion

PARKER, Judge.

In his first assignment of error, petitioner contends the judgment should be vacated because there was insufficient evidence presented at trial to support the trial court’s findings of fact and conclusions of law. We agree.

Findings of a trial judge sitting as the trier of fact will not be disturbed on appeal on the theory that the evidence did not support the findings if there is any competent evidence to support them. Mayo v. Mayo, 73 N.C. App. 406, 326 S.E. 2d 283 (1985). As appears from the record before this Court, the only competent evidence presented was the verified supplemental petition, Schoolfield v. Collins, 281 N.C. 604, 189 S.E. 2d 208 (1972) (verified pleadings can be considered as affidavits in the cause) and the sworn testimony of petitioner and his wife. Assuming arguendo that respondent’s letters may have constituted an answer within the meaning of the North Carolina Rules of Civil Procedure, see N.C. State Bar v. Wilson, 74 N.C. App. 777, 330 S.E. 2d 280 (1985), the trial court was precluded from considering them as affidavits in the cause because they were not verified. Schoolfield, supra.

In Brown v. Brown, 19 N.C. App. 393, 198 S.E. 2d 756 (1973), this Court vacated a judgment which was based upon an unverified complaint and letters and statements that were not made under oath. The court in the case sub judice did not strike respondent’s letters which were not under oath. As in Brown, “[i]t is obvious that some of the material findings of fact could not be based on competent evidence and could not support the judgment.” Id. at 394, 198 S.E. 2d at 758.

[438]*438The case must, therefore, be remanded for further proceedings and the judgment vacated.

Vacated and remanded.

Chief Judge HEDRICK and Judge WEBB concur.

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PARKER, Judge.

In his first assignment of error, petitioner contends the judgment should be vacated because there was insufficient evidence presented at trial to support the trial court’s findings of fact and conclusions of law. We agree.

Findings of a trial judge sitting as the trier of fact will not be disturbed on appeal on the theory that the evidence did not support the findings if there is any competent evidence to support them. Mayo v. Mayo, 73 N.C. App. 406, 326 S.E. 2d 283 (1985). As appears from the record before this Court, the only competent evidence presented was the verified supplemental petition, Schoolfield v. Collins, 281 N.C. 604, 189 S.E. 2d 208 (1972) (verified pleadings can be considered as affidavits in the cause) and the sworn testimony of petitioner and his wife. Assuming arguendo that respondent’s letters may have constituted an answer within the meaning of the North Carolina Rules of Civil Procedure, see N.C. State Bar v. Wilson, 74 N.C. App. 777, 330 S.E. 2d 280 (1985), the trial court was precluded from considering them as affidavits in the cause because they were not verified. Schoolfield, supra.

In Brown v. Brown, 19 N.C. App. 393, 198 S.E. 2d 756 (1973), this Court vacated a judgment which was based upon an unverified complaint and letters and statements that were not made under oath. The court in the case sub judice did not strike respondent’s letters which were not under oath. As in Brown, “[i]t is obvious that some of the material findings of fact could not be based on competent evidence and could not support the judgment.” Id. at 394, 198 S.E. 2d at 758.

[438]*438The case must, therefore, be remanded for further proceedings and the judgment vacated.

Vacated and remanded.

Chief Judge HEDRICK and Judge WEBB concur.

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Bluebook (online)

346 S.E.2d 298, 82 N.C. App. 434, 1986 N.C. App. LEXIS 2463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oherron-v-jerson-ncctapp-1986.

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