Gilbert v. North Carolina State Bar, No. COA06-194 (N.C. App. 12/19/2006)

Decision Date19 December 2006
Docket NumberNo. COA06-194,COA06-194
CourtCourt of Appeal of North Carolina (US)
PartiesWILLIE D. GILBERT, II Plaintiff, v. THE NORTH CAROLINA STATE BAR, Defendant.

Michaux & Michaux, P.A., by Eric C. Michaux, for plaintiff-appellee.

The North Carolina State Bar, by David R. Johnson, Deputy Counsel; and A. Root Edmonson, Deputy Counsel, for defendant-appellant.

LEVINSON, Judge.

The North Carolina State Bar (defendant), appeals an order granting in part the summary judgment motion by plaintiff, Willie D. Gilbert, II. We dismiss the appeal as interlocutory.

The procedural history of the legal proceedings between these parties is summarized as follows: In July 1999 defendant served plaintiff with a grievance alleging that he had engaged in professional misconduct in his representation of a client. On 26 April 2000 defendant filed an amended complaint with its Disciplinary Hearing Commission (DHC). The complaint, 00 DHC 03, alleged that, on a number of occasions between 1997 and 1999, plaintiff engaged in professional misconduct in his representation of several clients. A hearing was conducted on the complaint in July 2000. "In its order filed 1 November 2000, the DHC found [plaintiff] guilty of violating the following rules of the North Carolina Revised Rules of Professional Conduct: 1.5 (collecting an illegal or excessive fee); 1.7 (engaging in a conflict of interest); 8.4(b) (engaging in criminal conduct that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer); 8.4©) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (intentionally prejudicing his clients); and 1.15-2(h) (failing to disburse funds as directed by client)." N.C. State Bar v. Gilbert, 151 N.C. App. 299, 302, 566 S.E.2d 685, 687 (2002), aff'd, 357 N.C. 502, 586 S.E.2d 89 (2003). The DHC ordered that plaintiff's law license be suspended for five years, but allowed the last three years' suspension to be stayed if plaintiff complied with certain requirements. Plaintiff appealed the DHC's order of discipline, which was affirmed by this Court in N.C. State Bar v. Gilbert, id.

On 16 April 2002 the defendant filed a civil suit against plaintiff seeking recovery of monies paid to one of plaintiff's clients from the North Carolina State Bar's Client Security Fund. Judgement was entered against plaintiff on 11 March 2004, from which plaintiff appealed. This Court, in an unpublished opinion, vacated the trial court's order and remanded for entry of a new order. N.C. State Bar v. Gilbert, 2006 N.C. App. LEXIS 483. On 12 September 2003 defendant filed a new complaint with the DHC, in 03 DHC 16. This complaint, which was based on a grievance from 17 July 2000, alleged that in 1998 plaintiff engaged in professional misconduct by mishandling $290 of the money in his business trust fund. Defendant sought plaintiff's disbarment.

On 9 April 2004 plaintiff filed the complaint in the instant case. Plaintiff asserted that defendant's prosecution of the complaint in 03 DHC 16 was unlawful, vindictive, and was brought in bad faith in retaliation for plaintiff's zealous pursuit of appellate relief in the earlier actions against him. Plaintiff alleged violation of his rights under the U.S. and North Carolina constitutions, and sought declaratory and injunctive relief and compensatory damages. Plaintiff moved for summary judgment, and a hearing was conducted on 29 November 2004. On 12 September 2005 the trial court entered an order declaring defendant's prosecution of 03 DHC 16 to be a bad faith and vindictive prosecution brought in violation of plaintiff's constitutional rights. The court denied plaintiff's motion for summary judgment on the issue of whether the prosecution of 03 DHC 16 violated his double jeopardy rights, and granted summary judgment for defendant on that issue. The trial court further ordered that plaintiff was entitled to attorneys' fees and to such compensatory damages as he was able to prove at trial. The court also entered a permanent injunction barring defendant from any further prosecution of 03 DHC 16. From this order defendant has appealed.

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Preliminarily, we must determine if this appeal is properly before us. "A judgment is either interlocutory or the final determination of the rights of the parties." N.C.G.S. § 1A-1, Rule 54(a) (2005). "The distinction between the two was addressed in Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950), wherein the Court stated:

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. . . . An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.

Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001) (quoting Veazey, 231 N.C. at 361-62, 57 S.E.2d at 381 (citations omitted)). In the instant case, the order for summary judgment states that the trial court "expressly retains jurisdiction over this matter for purposes of any further proceedings in this case, including but not limited to proceedings for the enforcement of this Order, for the determination of the attorneys' fees to be awarded, and proceedings (i.e., a trial) for the determination of the compensatory damages to be awarded, if any." We conclude, and defendant concedes, that this is an interlocutory appeal.

"A final judgment is always appealable. However, an interlocutory order is immediately appealable only under two circumstances. `First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an immediate appeal will lie.' Under Rule 54(b), the trial judge must certify that there is no just reason for delay. Since there was no certification in the instant case, this avenue of interlocutory appeal is closed to defendant." Embler, id. (quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)). Moreover, in the present case, the absence of such a certification represents a deliberate decision on the part of the trial court. The defendant asked the court to certify the case for immediate appellate review, and the trial court expressly denied this request, stating that:

I think that the Court ought to have the whole matter. We've gone...

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