Pritchett & Burch, PLLC v. Boyd

• Decision Date: 15 March 2005
• Docket Number: No. COA04-420.,COA04-420.
• Citation: 609 S.E.2d 439,169 NC App. 118
• Court: North Carolina Court of Appeals
• Parties: PRITCHETT & BURCH, PLLC, Plaintiff, v. Rebecca H. BOYD, W.B. Long, John Hunter Dailey, and Olivia Dailey Alberti, Defendants.

609 S.E.2d 439

169 NC App. 118

PRITCHETT & BURCH, PLLC, Plaintiff, v. Rebecca H. BOYD, W.B. Long, John Hunter Dailey, and Olivia Dailey Alberti, Defendants.

No. COA04-420.

Court of Appeals of North Carolina.

March 15, 2005.

Pritchett & Burch, P.L.L.C., by Lloyd C. Smith, Jr., and Lars P. Simonsen, Windsor, for plaintiff-appellant/cross-appellee.

The Blount Law Firm, P.A., by Marvin K. Blount, Jr., Rebecca Cameron Blount, and Harry H. Albritton, Jr., Greenville, for defendants-appellees/cross-appellants. TYSON, Judge.

Pritchett & Burch, PLLC ("plaintiff") appeals from the trial court's judgment awarding summary judgment to Rebecca H. Boyd ("Boyd"), W.B. Long ("Long"), John Hunter Dailey ("Dailey"), and Olivia Dailey Alberti ("Alberti") (collectively, "defendants") on its breach of contract claim. Defendants' cross-appeal the award of summary judgment for plaintiff on its quantum meruit claim. We affirm in part, reverse in part, and remand.

I. Background

In 1998, defendants entered into a contingency fee contract with plaintiff to perform legal services and to represent them in a caveat proceeding involving the purported Last Will and Testament of Francis M. Barnes ("Barnes"), deceased, a native of Martin County. The parties executed an employment contract in which defendants agreed to pay plaintiff a contingent fee in the amount of thirty-three percent of "any settlement, verdict or recovery" from the caveat.

A. The Initial Action

Barnes died purportedly testate on or about 17 October 1996. Defendants contested the propounded Last Will and Testament of Barnes dated 22 November 1989 ("the 1989 Will"). Defendants are named beneficiaries under an earlier Last Will and Testament of Barnes dated 25 May 1967 ("the 1967 Will").

On 21 September 1998, plaintiff filed a caveat to the 1989 Will on behalf of defendants. Plaintiff conducted discovery, including taking numerous depositions in and outside of North Carolina. Plaintiff advanced costs incurred for conducting those depositions. Plaintiff, as defendants' agent, also retained the services of a certified public accountant, Richard Cox ("Cox"), to conduct an audit of Barnes's estate and trust. Cox performed the audit and issued a memorandum of his findings. Plaintiff advanced payment for Cox's services.

The propounders of the 1989 Will moved for summary judgment. The motion was calendared for hearing on 1 September 2000. At the hearing, the parties entered into settlement negotiations, which plaintiff alleges resulted in a settlement agreement. The settlement terms were reduced to writing and signed by: (1) William W. Pritchett, Jr., ("Pritchett"), a member of the plaintiff law firm; (2) the propounders of the 1989 Will; and (3) the presiding trial judge. Plaintiff contends that defendants accepted the settlement. Defendants did not sign the agreement and deny they agreed to the settlement offer.

Under the "settlement" terms, Barnes's estate agreed to pay a total amount of $1,200,000.00 to defendants. Based on the agreement, $332,053.67 was to be paid to plaintiff: $300,000.00 in attorney's fees and $32,053.67 in advanced costs and expenses.

On or about 20 September 2000, defendants notified plaintiff that they refused to sign the Settlement Agreement and discharged plaintiff from further representation. Defendants retained the services of The Blount Law Firm to represent them further in the caveat proceeding.

The propounders of the 1989 Will moved to enforce the settlement agreement purportedly agreed to by the parties on 1 September 2000. Following a hearing, the trial court denied the propounders' motion by order entered 24 January 2001. Although Pritchett testified at that hearing, neither plaintiff nor Pritchett joined the motion to enforce or were parties to the caveat proceeding.

Defendants, now represented by The Blount Law Firm, tried the caveat proceeding before a jury on 29 January 2001. The jury found that the 1989 Will was invalid due to Barnes's lack of testamentary capacity at the time she executed the Will. Defendants proceeded to probate in solemn form the 1967 Will wherein they were named beneficiaries. The jury rendered a verdict that Barnes had revoked the 1967 Will. Defendants recovered nothing from the Barnes's estate and exhausted all appeals. The jury's verdict was favorable to defendants on the 1989 Will, but adverse to defendants on the 1967 Will. The jury's verdict determined Barnes died intestate. That determination became the final judgment in the underlying case, after all appeals were exhausted.

B. The Present Action

On 13 September 2002, plaintiff filed a complaint against defendants and alleged claims for breach of contract and quantum meruit. Defendants moved to dismiss for plaintiff's failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. After plaintiff moved for summary judgment and attached supporting documents, defendants also moved for summary judgment. According to the affidavit of plaintiff's bookkeeper and office manager, Virginia Jenkins, attorney Pritchett expended 160.22 hours representing defendants in the underlying caveat proceeding. Pritchett customarily charged an hourly rate of $175.00. Travis Ellis, an associate with plaintiff, expended 15.5 hours on the case and customarily billed an hourly rate of $115.00. Various paralegals and members of plaintiff's staff also worked in the case, including May Robertson, who spent 4.25 hours on the case and was billed at an hourly rate of $85.00.

Plaintiff also advanced costs on behalf of defendants in the prosecution of the caveat proceeding. Virginia Jenkins's uncontradicted affidavit shows that plaintiff advanced $32,689.90 in costs and expenses on behalf of defendants, including: (1) expert witness fees paid to Cox, CPA, in the amount of $29,090.50; (2) court reporter costs of $2,549.45; (3) filing fees of $35.00; and (4) $1,014.95 for business meals and travel by Pritchett and other members of the firm.

The trial court granted summary judgment for defendants on plaintiff's breach of contract claim and granted summary judgment for plaintiff on its quantum meruit claim in the amount of $62,872.15. The trial court concluded "the hourly rates charged by the plaintiff for the work of its partners, associates and paralegals are hourly rates that are regularly and customarily charged by attorneys with similar experience and expertise and are reasonable hourly rates...." The trial court also concluded the "expenses advanced by plaintiff for defendants were reasonable and necessary expenses which were incurred on behalf of and for the benefit of defendants." Both parties appeal.

II. Issues

We must determine whether the trial court erred by: (1) granting summary judgment for defendants on its discharged attorney's claim for breach of contract; and (2) granting summary judgment for plaintiff on its quantum meruit claim.

III. Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2003).

A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense.... Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.

Draughon v. Harnett Cty. Bd. of Educ., 158 N.C.App. 705, 708, 582 S.E.2d 343, 345 (2003), aff'd, 358 N.C. 137, 591 S.E.2d 520, reh'g denied, 358 N.C. 381, 597 S.E.2d 129 (2004) (internal citations and quotations omitted).

IV. Breach of Contract

Plaintiff contends the trial court erred in granting summary judgment for defendants and denying its motion for summary judgment on its claim for breach of contract. We disagree.

A. Settlement Agreement

Plaintiff argues defendants are contractually obligated to pay plaintiff thirty-three and one-third percent of the "settlement" amount even though the written settlement agreement was never executed by defendants. In its brief, the only authority cited regarding this assignment of error is Clerk of Superior Court of Guilford County v. Guilford Builders Supply Co., 87 N.C.App. 386, 361 S.E.2d 115 (1987),disc. rev. denied, 321 N.C. 471, 364 S.E.2d 918. 321 N.C. 471, 364 S.E.2d 918 (1988), which plaintiff concedes is contrary to its argument and attempts to distinguish. We are bound by prior decisions of this Court. In the Matter of Appeal from the Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).

Plaintiff presents no authority to support its argument in violation of the mandatory requirements of our appellate rules. See N.C.R.App. P. 28(b)(6) (2004); Holland v. Heavner, 164 N.C.App. 218, 595 S.E.2d 224, 226 (2004) (holding that appellate rules are mandatory and "`failure to follow [them] will subject an appeal to dismissal'") (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999) (citations omitted)). Plaintiff's assignment of error that defendants accepted the terms of the settlement is dismissed. N.C.R.App. P. 28(b)(6); see State v. Walters, 357 N.C. 68, 85-86, 588 S.E.2d 344, 355,

cert. denied, 540 U.S. 971, 124 S.Ct. 442, 157 L.Ed.2d 320 (2003); Byrne v. Bordeaux, 85 N.C.App. 262, 265, 354 S.E.2d 277, 279 (1987) (citing Groves & Sons v. State, 50 N.C.App. 1, 273 S.E.2d 465 (1980),

cert. denied,

302 N.C. 396, 279 S.E.2d 353 (1981)).

B. Costs

Plaintiff cites Scott v. United Carolina...