# Brundage v. Foye > Court of Appeals of North Carolina · March 7, 1995 · 118 N.C. App. 138 URL: https://www.frixlaw.com/law-library/cases/9594678 ## Case - **Full name:** FLORA S. BRUNDAGE and JAMES A. BRUNDAGE, Plaintiffs v. ROBERT L. FOYE and WILMA FOYE, Defendants - **Court:** Court of Appeals of North Carolina - **Decided:** March 7, 1995 - **Citations:** 118 N.C. App. 138; 454 S.E.2d 669; 1995 N.C. App. LEXIS 88 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Greene, Johnson - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9594678 ## How later opinions describe it (automated extraction) - holding that where a consent judgment is entered against two parties with the consent of only one, the trial court must set the consent judgment aside as to both parties ## Opinion text Judge Johnson dissenting. I respectfully dissent from the first issue discussed in the majority’s opinion. I believe the trial judge properly declined to set aside the consent judgment as to defendant Robert Foye. The judgment which the trial court signed 5 August 1992, based on the representations of defendants’ attorney in open court on 13 July 1992 during which time defendant Robert Foye was present, stated “that the plaintiffs have judgment against the defendants, Robert L. Foye and wife, Wilma B. Foye, jointly and severally, in the amount of One Hundred Ten Thousand and 00/100 Dollars ($110,000.00).” (Emphasis added.) As the majority notes, at the hearing on defendants’ motion to set aside the judgment based upon lack of consent, the trial court found that defendant Wilma Foye was not present in court the day of the hearing of the matter, and the court concluded that the judgment as to her was set aside. The law of joint and several liability is well-settled. (See Kelly v. Muse, 33 N.C. 182 (1850), where our Supreme Court generally discussed the evolving law of joint and several liability.) “[I]t is well established that the term ‘jointly and severally’ implies that one *143 [party] could pay for all of plaintiffs damages[.]” Sheppard v. Zep Manufacturing Co., 114 N.C. App. 25, 35 , 441 S.E.2d 161, 167 (1994). In Owens v. Voncannon, 251 N.C. 351 , 111 S.E.2d 700 (1959), the plaintiffs instituted an action to recover on a promissory note made by defendants Lonnie Voncannon and Doris Voncannon as makers and by defendants Lonnie Voncannon and Alma Brown as endorsers. An answer, signed by attorney Sam W. Miller, purporting to be on behalf of all of the defendants, was filed. At trial, judgment was entered “that the plaintiffs have and recover of the defendants, jointly and severally, the sum of Two Thousand Dollars[.]” Id. at 352 , 111 S.E.2d at 701 . Defendant Doris Voncannon averred that she had not retained Mr. Miller as her attorney and that no valid judgment had been entered against her; the trial court denied this motion. Upon appeal, our Supreme Court said that if defendant Doris Voncannon “did not authorize Mr. Miller, directly or through Lonnie Voncannon, to consent to said judgment of November 25, 1957, the judgment, as to her, is void[.\” Id. at 354 , 111 S.E.2d at 702 . (Emphasis added and retained.) (Compare Nye, Mitchell, Jarvis & Bugg v. Oates, 109 N.C. App. 289 , 426 S.E.2d 291 (1993), where the defendant husband and defendant wife, under the terms of a consent judgment, agreed jointly and severally to pay money due the plaintiffs; the plaintiffs appealed the setting aside of a consent order against the defendant wife, and our Court reversed and remanded the decision of the trial court. Our Court stated that “the dispositive question is whether the attorneys who signed the consent judgment, representing themselves as the attorneys for [defendant wife], had the authority to appear and approve a judgment on behalf of [defendant wife].” Id. at 293 , 426 S.E.2d at 294 .) Overton v. Overton, 259 N.C. 31 , 129 S.E.2d 593 (1963), which the majority relies upon, is distinguishable. The consent judgment therein pertained to a dissent of a will. The Court in Overton noted that “[w]here parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given[.]” Id. at 37 , 129 S.E.2d at 598 , quoting Gardiner v. May, 172 N.C. 192, 194 , 89 S.E. 955, 956 (1916). In Overton , when the consent judgment was vacated as to the respondent heir, the Court noted that the consent judgment had to be set aside in its entirety because “ [i]f that which affects one party is taken out, what is left is not what was agreed to *144 by the others.” Overton, 259 N.C. at 37-38 , 129 S.E.2d at 598 . In the instant appeal, however, when the consent judgment was vacated as to defendant Wilma Foye, what was left was what defendant Robert Foye had agreed to; namely, that he would be “jointly and severally” liable to plaintiffs in the amount of $110,000.00. For these reasons, I dissent from the majority and find that the trial judge properly declined to set aside the consent judgment as to defendant Robert Foye. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9594678. Public record. Not legal advice.