McGee v. Eubanks, 8521SC50

• Decision Date: 15 October 1985
• Docket Number: No. 8521SC50,8521SC50
• Citation: 335 S.E.2d 178,77 N.C.App. 369
• Parties: Bonnie Davis McGEE v. Larry L. EUBANKS and Deborah A. Eubanks v. Curtis Keith McGEE.
• Court: North Carolina Court of Appeals

Page 178

335 S.E.2d 178

77 N.C.App. 369

Bonnie Davis McGEE v. Larry L. EUBANKS and Deborah A. Eubanks v. Curtis Keith McGEE.

No. 8521SC50.

Court of Appeals of North Carolina.

Oct. 15, 1985.

Randolph and Tamer by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff-appellant.

Wilson, Degraw, Johnson & Miller by Dan S. Johnson, Winston-Salem, for defendants-appellees.

JOHNSON, Judge.

The questions presented by appellant primarily focus on whether the trial court's findings of fact were supported by the evidence presented. Ms. McGee's additional assignments of error raise the question of whether attorney Eubanks may be held strictly liable for a breach of DR 9-102 of the Code of Professional Responsibility.

The pertinent findings of fact to which Ms. McGee takes exception are as follows:

17. On November 5, 1982, the plaintiff and the defendant Larry Eubanks, expected that the following events would take place upon authorization, and the plaintiff's authorization was granted on these conditions.

(a) That Eubanks would 'protect the $9,000.00' and pay it to the plaintiff when the draft was cashed by Welborn;

(b) That Eubanks would receive his $3,000.00 when the draft was cashed;

(c) [T]he sum of $7,500 would represent a loan to defendant McGee from the plaintiff McGee;

(d) That $7,500 sum would be used to repay Phillip McGee for his interest in the Belews Creek Road homeplace of the plaintiff arising out of the June transaction with his brother;

(e) That the third party defendant [Curtis Keith McGee] would receive from Garvie Welborn, when the draft was cashed, the sum of $20,000.00 representing the purchase price, down payment on McGee's house arising out of his agreement with his mother for the sale of his house.

In the review of an appeal from a trial court judgment without a jury, we are bound by several salient principles. The cardinal principle is that "... the court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975). Ms. McGee asserts that there is insufficient evidence to support the trial court's findings of fact. "The findings of the court will not be reviewed if there is any competent evidence in the record to support them." Wachovia Bank & Trust Co. v. Bounous, 53 N.C.App. 700, 706, 281 S.E.2d 712, 715 (1981) (emphasis added).

In the case sub judice the evidence supporting finding of fact 17 tended to show that Ms. McGee authorized attorney Larry Eubanks to distribute the insurance funds. In most instances where Ms. McGee has assigned error to the court's findings of fact it was her own testimony which supported the court's findings. Ms. McGee testified that "... at that time, he [Larry L. Eubanks] was to have his $3,000.00, send me a check for nine, and give Keith the twenty for the house plus seven thousand--it was a little over seven thousand he was to give Keith--and Keith was to owe me." There are several other excerpts from Ms. McGee's testimony which support the court's finding that Larry Eubanks was to protect $9,000 for her. Larry Eubanks also testified that Ms. McGee instructed him to keep her $9,000, whereupon he agreed to "protect the $9,000" on her behalf. We conclude there is ample evidence in the record to support the court's finding that at Ms. McGee's request attorney Eubanks was to "protect" $9,000 for her.

The evidence in the record supports the court's findings that it was Curtis Keith McGee who received $12,000 the day the draft was cashed. Garvie Welborn's testimony along with testimony by Larry Eubanks conclusively established this fact.

The court found that Ms. McGee authorized the draft to be cashed with the knowledge that Garvie Welborn had insufficient funds to tender the full amount of the draft; therefore, Curtis Keith McGee would receive the cash that Mr. Welborn tendered. These findings are borne out by Larry Eubanks' testimony with respect to a telephone conversation between him and Ms. McGee about the state of Ms. McGee's affairs.

Ms. McGee also excepted to the court's finding of fact that the sum of $7,500 would represent a loan to Curtis Keith McGee. As pointed out earlier, Ms. McGee testified that "Keith was to owe me,"...