Dep't of Transp.ation v. Evans
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-376 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 DEPARTMENT OF TRANSPORTATION, Plaintiff Cumberland County No. 11 CVS 3044 v. PETER R. EVANS, JR. and wife, DELORES L. EVANS, Defendants Appeal by defendants from order entered 30 October 2013 by Judge James Gregory Bell in Cumberland County Superior Court. Heard in the Court of Appeals 8 September 2014. Attorney Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for Plaintiff. Spurgeon Fields, III, for Defendants. Yarborough, Winters & Neville, Yarborough, pro se, amicus curiae. P.A., by Garris Neil ERVIN, Judge. Defendants Peter Evans and his wife, Delores Evans, appeal from an order allowing a motion filed by Garris Neil Yarborough seeking an award of attorney’s fees. contend that the trial court lacked On appeal, Defendants the authority attorney’s fees to Mr. Yarborough in this case. to award After careful -2consideration of Defendants’ challenge to the trial court’s order in light of the record and the applicable law, we conclude that the trial court’s order should be affirmed. I. Factual Background On 1 April 2011, Plaintiff North Carolina Department of Transportation filed a complaint and declaration of taking, along with a deposit of $15,231, for the purpose of obtaining a fee simple interest in and certain easement authorizing the use of a tract of real property owned by Defendants. On 15 February 2012, Defendants hired Mr. Yarborough to represent them in this condemnation proceeding. At that time, Defendants signed a contingency fee agreement under which they agreed to pay Mr. Yarborough an amount Defendants received equal from to one-third Plaintiff in of excess any of monies the that $15,231 deposit that was made simultaneously with the filing of the complaint. On 16 February 2012, Mr. Yarborough filed an answer on behalf of Defendants alleging that the State had not offered just compensation to Defendants for the loss of their property and asserting Defendants’ right to a trial by jury. At the conclusion of a mediation conference, the parties entered into a mediated settlement agreement under which Plaintiff agreed to pay Defendants an additional $25,769 over and above the amount -3of the initial payment of Plaintiff, deposit, $41,000. resulting After Defendants in reaching became a total this compensation agreement dissatisfied with with the representation that they had received from Mr. Yarborough and questioned the fairness of the mediated settlement agreement. The parties never completed the process of implementing the mediated settlement agreement given that Plaintiff subsequently determined that the scope of the taking needed to be expanded to include an additional 11/100ths of an acre of Defendant’s property. Although this case was calendared for trial on 17 December 2012, Defendants sought a continuance and requested that Mr. Yarborough withdraw as their counsel of record. After Mr. Yarborough complied with Defendants’ request, Judge Richard T. Brown entered an order granting the requested continuance and Mr. Yarborough’s withdrawal motion on 17 December 2012. On the same date, Mr. Yarborough sent a copy of Judge Brown’s order to Defendants and requested payment for his services. On 26 April 2013, Spurgeon Fields, III, filed a notice that he was appearing Yarborough. On 3 on May Defendants’ 2013, Mr. behalf in Yarborough lieu filed of a Mr. motion seeking an award of attorney’s fees relating to the services that he had provided to Defendants in this case. On 17 June -42013, Judge Claire V. Hill entered a consent judgment that reflected an agreement between Plaintiff and Defendants under which Plaintiff took certain property interests previously owned by Defendants, including the additional 11/100ths of an acre that had been identified mediated $1,000 settlement in after the parties entered into the agreement; compensation over Plaintiff and above was the required amount to agreed pay to during the mediated settlement conference, resulting in a total compensation payment of $42,000; and the additional deposit of $26,769 was to “be disbursed pursuant to further order of the Court after determination of what portion of the additional deposit, if any, should be paid as attorney’s fees.” On 15 July 2013, Defendants filed a response to Mr. Yarborough’s motion for an award of attorney’s fees in which they requested, among other things, that Mr. Yarborough’s motion be dismissed. Defendants in On 16 July 2013, Mr. Yarborough sent a letter to which he suggested that the attorney’s fee controversy be resolved on the basis of either (1) an agreement as to the amount of fair attorney’s fee; (2) a fee arbitration proceeding initiated determination Defendants following failed to by Defendants; a hearing respond Yarborough wrote Defendants to or on this (3) his a judicial motion. communication, After Mr. on 11 October 2013 asking for a -5response to his 16 July 2013 letter. On the same day, Defendants responded by indicating that the only way in which the attorney’s fee controversy could be resolved would be by having Mr. Yarborough’s motion heard and decided. As a result, Mr. Yarborough’s motion was set for hearing on 28 October 2013. At the 28 October 2013 their counsel were present.1 hearing, neither Defendants nor After expressing his readiness to proceed, Mr. Yarborough informed the trial court that he had not heard anything from Defendants indicating that they were unable to appear on the scheduled date.2 After the presentation of Mr. Yarborough’s evidence, the trial court entered an order on 30 October 2013 in which it made findings of fact concerning Mr. Yarborough’s credentials, the work that Mr. Yarborough performed for Defendants, and the results that Mr. Yarborough had obtained for Defendants in this case; determined that Defendants owed Mr. Yarborough $8,589 for the services that he had provided to them in this case; and ordered that the attorney’s fee amount specified in the 30 October 2013 order be paid to Mr. Yarborough 1 Although Plaintiff was present at the 28 October 2013 hearing, it indicated that it had no interest in the outcome of the attorney’s fee dispute and elected not to actively participate in the hearing. 2 In their brief, Defendants state that they failed to attend the 28 October 2013 hearing because their counsel misplaced the relevant calendaring notice. However, the record contains no support for this contention one way or the other. -6from the additional payment that Defendants had received from Plaintiff Defendants and that and the their remaining current $18,180 counsel. amount be to noted Defendants paid an appeal to this Court from the trial court’s order. II. Substantive Legal Analysis In their brief, Defendants argue that the trial court erred by allowing Mr. Yarborough’s request for an award of attorney’s fees. More specifically, Defendants contend Mr. Yarborough’s motion for an award of attorney’s fees operated as a request for the enforcement of a charging lien and attorney is not entitled to enforce a that a discharged charging lien against funds that were obtained in the same proceeding in which the effort to enforce the charging lien is being made. Defendants’ argument is devoid of any merit. A. Standard of Review The essential gist of the argument advanced in Defendants’ brief is a contention that the trial court lacked the authority to award attorney’s fees to Mr. Yarborough in this proceeding. As a result, the ultimate issue that Defendants have presented for our review is whether the trial court properly concluded as a matter of law that it had the power to award attorney’s fees to Mr. Yarborough in this case. “Conclusions of reviewed de novo and are subject to full review.” law are State v. -7Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). “‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). We will now evaluate the validity of Defendants’ challenges to the trial court’s order utilizing the applicable standard of review. B. Validity of Trial Court’s Order “[A] charging lien is an equitable lien which gives an attorney the right to recover his [contracted-for] fees from a fund recovered by his aid.” Covington v. Rhodes, 38 N.C. App. 61, 67, 247 S.E.2d 305, 309 (1978) (quotation marks and citation omitted), disc. review (1979). denied, 296 N.C. 410, 251 S.E.2d 468 On the other hand, “[q]uantum meruit is a measure of recovery for the reasonable value of services rendered in order to prevent unjust enrichment.” Pritchett & Burch, PLLC v. Boyd, 169 N.C. App. 118, 124, 609 S.E.2d 439, 443 (quoting Paul L. Whitfield, P.A. v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414-15 (1998)), disc. review dismissed, 359 N.C. 635, 616 S.E.2d 543 (2005). According to well-established North Carolina law, an attorney who has entered into a contingent fee contract with a client and is subsequently discharged by his or her client is -8entitled to recover the reasonable value of the legal services that he or she rendered to the client and the expenses that he or she incurred for the benefit of the client on the basis of a quantum meruit theory. Id. Although Defendants contend that the trial court improperly enforced a charging lien against the fund that was created by their settlement with Plaintiff on the grounds that the amount awarded to Mr. Yarborough equaled the amount that would have been owed under the contingent fee contract, we do not find this argument persuasive. one-third agreed of to conference the pay for Instead of simply awarding Mr. Yarborough additional to the $25,769 Defendants purpose of at payment the enforcing that mediated the Plaintiff settlement contingent fee agreement, the trial court ordered Defendants to pay $8,589 to Mr. Yarborough based upon findings of fact that focused upon Mr. Yarborough’s experience, his expertise condemnation proceedings, the amount of in the time handling that he of spent working on Defendants’ behalf, and the value of the services that he provided to Defendants in this case. As a result, the trial court’s attorney’s fee award was clearly based upon a quantum meruit theory and did not constitute the enforcement of a charging lien. -9The fact that the trial court’s order involves quantum meruit recovery rather than the enforcement of a charging lien establishes that the trial court properly considered Mr. Yarborough’s attorney’s fee application in the civil action in which the attorney’s fees in question were allegedly earned rather than requiring Mr. Yarborough to assert his claim for attorney’s fees in a separate proceeding. In Guess v. Parrott, 160 N.C. App. 325, 585 S.E.2d 464 (2003), the law firm of a discharged attorney filed a motion seeking an award of attorney’s fees in the underlying civil action on the basis of a quantum meruit theory after the parties to that action entered into a mediated settlement agreement. 466. Id. at 327, 585 S.E.2d at In affirming the trial court’s decision to grant the law firm’s motion, we held that “a claim by an attorney who has provided legal service pursuant to a contingency fee agreement and then fired has a viable claim in North Carolina in quantum meruit against the former client or its subsequent representative,” id. at 331, 585 S.E.2d at 468, and is entitled to assert that claim by means of a motion in the underlying civil action out of which the attorney’s fee claim arose. Thus, the approach adopted by the trial court in addressing the issues raised in Mr. Yarborough’s motion for an award of attorney’s -10fees is expressly authorized by Parrott. As a result, neither of Defendants’ challenges to the trial court’s order has merit.3 III. Conclusion Thus, for the reasons set forth above, we conclude that Defendant’s challenges to the trial court’s order lack merit. As a result, the trial court’s order should be, and hereby is, affirmed. AFFIRMED. Judges MCCULLOUGH and BELL concur. Report per Rule 30(e). 3 Although Defendants’ brief appears to suggest that the trial court should have sanctioned Mr. Yarborough for the filing of his request for an award of attorney’s fees pursuant to N.C. Gen. Stat. § 1A-1, Rule 11, they have not challenged the trial court’s failure to sanction Mr. Yarborough or expressly argued that such sanctions should have been imposed. Aside from the fact that our decision to affirm the trial court’s order establishes that Mr. Yarborough, and not Defendants, correctly understood the applicable law, N.C. R. App. P. 10(a)(1) provides that, “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” As a result, we conclude that Defendants have not properly presented any claim for relief pursuant to N.C. Gen. Stat. § 1A-1, Rule 11 for our review and that any sanctions claim that Defendants might have asserted would have been devoid of merit.
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