Webster v. Powell

391 S.E.2d 204, 98 N.C. App. 432, 1990 N.C. App. LEXIS 425
CourtCourt of Appeals of North Carolina
DecidedMay 15, 1990
Docket8921SC499
StatusPublished
Cited by24 cases

This text of 391 S.E.2d 204 (Webster v. Powell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webster v. Powell, 391 S.E.2d 204, 98 N.C. App. 432, 1990 N.C. App. LEXIS 425 (N.C. Ct. App. 1990).

Opinions

ORR, Judge.

On 26 April 1985, plaintiffs filed this complaint which alleges that they contracted with defendant, a licensed attorney, to represent them in several legal matters. When, according to plaintiffs, defendant failed to perform pursuant to the terms of their agreement, this action was brought against him for damages.

In their complaint, plaintiffs allege that they were approached by defendant in February 1981, and that after several meetings with him the parties entered into a contract whereby defendant agreed to act as attorney for them and they agreed to pay him $150,000.00 for his services. According to plaintiffs, defendant agreed to represent them concerning anticipated audits by the Internal Revenue Service (the IRS), and concerning any criminal charges resulting from their prior tax activities. Defendant also allegedly agreed to represent them on any charges which might be filed against them relating to violations of banking laws or regulations. Defendant allegedly contracted to hire an outside Certified Public Accounting (CPA) firm to assist in preparation of the matters for the IRS. Defendant was to pay the CPA firm out of the $150,000.00 [435]*435which plaintiffs were to pay him. Defendant also agreed to hire additional counsel if criminal indictments were returned against plaintiffs. Said counsel was to be paid out of the same $150,000.00 fund referred to above.

Plaintiffs further allege that defendant’s representation of them was inadequate in that he failed to advise them and incorrectly advised them on several occasions. They allege that they ultimately hired replacement counsel to conduct the various negotiations which defendant had agreed to conduct for them. Furthermore, plaintiffs allege that defendant made himself unavailable to them and often absented himself from important meetings. Most importantly, plaintiffs allege that defendant failed to pay the invoices which he had agreed to pay. When defendant failed to respond to plaintiffs’ numerous requests for him to make these payments and/or to return the unearned portions of their advancements, plaintiffs filed this complaint seeking compensatory and punitive damages for: (1) breach of contract, (2) breach of fiduciary duty, (3) professional negligence, and (4) fraud. In the alternative, plaintiffs were also seeking to have a constructive or resulting trust imposed due to the invalidity of the contract which was allegedly procured by fraud and duress.

Defendant filed an answer to this complaint on 11 August 1986. Therein he admitted discussing plaintiffs’ cases with them and contracting with them for his services. He also stated that he negotiated certain advantageous plea bargain and immunity agreements for them. However, he denied all material allegations made against him by plaintiffs.

By way of affirmative defenses, defendant avers that plaintiffs’ claims are barred by the statutes of limitation contained in N.C. Gen. Stat. §§ 145(c) and 1-52. He further avers that plaintiffs’ requests for equitable relief in the form of a constructive or resulting trust are barred by the unclean hands doctrine. According to defendant’s answer, he substantially performed by rendering valuable services; however, plaintiffs refused to make payments as required by their contract. He avers that any actual negligence by him was offset by plaintiffs’ own contributory negligence in failing to fully disclose all facts and circumstances related to their criminal activity. Defendant also raised the defense of satisfaction and accord.

Thereafter, on 2 September 1986, defendant filed a petition for bankruptcy under Chapter 7 of the United States Code, Title 11. A stay was ordered in that action, and on 5 November 1986, [436]*436plaintiffs filed a motion for relief from that stay. They asked the court to modify its stay and allow them to prosecute their claims against defendant to the extent of his coverage under a malpractice liability insurance policy. On 18 May 1987, plaintiffs were authorized to continue their suit and the stay was “modified to the extent of the limits of coverage of any malpractice liability insurance policies issued to the [defendant] which may be applicable to the [plaintiffs’ claims]. . . .”

On 29 May 1987, defendant filed a motion for a judgment on the pleadings requesting a judgment with respect to plaintiffs’ professional negligence and malpractice claims. His motion was denied on 28 September 1987. Defendant then filed a summary judgment motion on or about 11 April 1988. Attached to this motion was his own affidavit and a copy of his insurance policy with Lawyers Mutual Liability Insurance Company which was in effect during the time period in which the subject of this suit arose. Plaintiffs filed several affidavits in opposition to defendant’s motion.

On 29 April 1988, the court granted defendant’s summary judgment motion with regard to the following claims: “(a) imposition of a constructive or resulting trust; (b) breach of fiduciary duty; (c) fraud, including double damages and punitive damages; (d) restitution, unjust enrichment and ‘money had and received’; (e) return of fee; and (f) recovery of fee because the fees were allegedly unreasonable, oppressive and excessive.”

Defendant’s motion was denied as to plaintiffs’ claims for professional negligence and breach of contract as that claim relates to their cause of action for professional negligence.

On or about 4 October 1988, defendant filed a motion in limine with the trial court to exclude testimony or argument about claims which had already been summarily dismissed in his favor. Defendant sought to exclude any reference to and evidence of his alleged violations of certain professional rules of conduct, his alleged use of illegal drugs, and the existence of a professional malpractice liability insurance policy.

The court granted defendant’s motion in limine, and plaintiffs thereafter filed a motion to correct an alleged clerical error in the court’s order granting defendant partial summary judgment. The court denied plaintiffs’ motion.

[437]*437Thereafter, the court entered a directed verdict in favor of defendant on plaintiffs’ claims for malpractice and contractual breach arising from that malpractice. Plaintiffs now appeal the adverse judgments and decisions which were entered below.

I.

Plaintiffs have raised numerous issues some of which we have consolidated for our discussions herein. We will first address the question of whether the trial court erred in granting partial summary judgment in favor of defendant thereby dismissing plaintiffs’ claims for breach of fiduciary duty, fraud, unjust enrichment, return of fee, recovery of fee, restitution, and for the imposition of a constructive or resulting trust.

Summary judgment is appropriate when the pleadings, depositions, and other relevant discovery materials 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) (1983). In the case at bar, defendant filed a petition in bankruptcy court in 1986. On 17 April 1987, the bankruptcy court granted that petition and entered an order discharging all of defendant’s dischargeable debts. Plaintiffs’ claims against defendant were therefore discharged by this order. However, the bankruptcy court later granted plaintiffs’ motion for relief from its stay and gave them express authority to continue their action against defendant for damages:

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Webster v. Powell
391 S.E.2d 204 (Court of Appeals of North Carolina, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
391 S.E.2d 204, 98 N.C. App. 432, 1990 N.C. App. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-powell-ncctapp-1990.