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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JOHNNY ROBERT GUESS, JR., Plaintiff, v. TERRY ANTHONY PARROTT,
BRIDGET CHRISTINA PARROTT, d/b/a PARROTT TRUCKING, Defendants
Filed: 16 September 2003
1. Attorneys_contingent fee_multiple attorneys_quantum meruit claim by attorney
An attorney who has provided a legal service pursuant to a contingency fee agreement
and then been fired has a viable claim in quantum meruit against the former client or its
subsequent representative. The first of plaintiff's two attorneys in this negligence action properly
stated a claim, and the trial court properly denied the second attorney's motion to dismiss.
2. Attorneys_contingency fee_apportionment between attorneys_no right to jury trial
The trial court did not err by denying a law firm's request for a jury trial to apportion a
contingency fee between two attorneys. The right to a trial by jury exists only by statute or if it
existed in the common law at the time the North Carolina Constitution of 1868 was adopted. The
rule of quantum meruit recovery by attorneys is modern, and the apportionment of attorneys' fees
among the various lawyers who have represented a party has not been regulated by statute.
3. Attorneys_contingency fee_apportionment between attorneys_quasi-quantum
A trial court in North Carolina may use the quasi-quantum meruit approach to apportion a
contingency fee between attorneys if it believes that such a method aptly characterizes what the
discharged attorney is entitled to receive. In this case, the trial court's findings were sufficient
and there was no abuse of discretion.
Appeal by plaintiff and the firm of Lloyd T. Kelso &
Associates from order entered 10 April 2002 by Judge Richard D.
Boner in Gaston County Superior Court. Heard in the Court of
Appeals 20 May 2003.
Lloyd T. Kelso & Associates, by Lloyd T. Kelso, for the firm
of Lloyd T. Kelso & Associates and for plaintiff, appellants.
Melrose, Seago & Lay, P.A., by Randal Seago, for the firm of
Melrose, Seago & Lay, P.A., appellees.
This appeal arises out of a dispute between attorneys for the
firms of appellant Lloyd T. Kelso & Associates and appelleeMelrose, Seago & Lay, P.A., as to entitlement to attorneys' fees
stemming from the underlying case. The underlying case involved an
automobile accident that occurred on 24 July 1999 in which
plaintiff Johnny Robert Guess, Jr., was injured when his vehicle
collided with a tractor-trailer driven by defendant Terry Anthony
Shortly after the accident, plaintiff's father and brother, on
26 July 1999, contacted the appellee law firm of Melrose, Seago &
Lay, P.A., and made arrangements with Randal Seago to represent
plaintiff. On 29 July 1999, plaintiff and Randal Seago entered
into a contingency fee agreement in which plaintiff promised to pay
appellee one-third of any recovery. Further, plaintiff would
reimburse appellee for expenses and costs advanced by it.
Mr. Seago went about the task of representing plaintiff. He
filed a complaint on 6 January 2000. The parties negotiated at
mediation, asking for $750,000.00. A settlement could not be
reached as defendants would not go above $200,000.00. Plaintiff
would not lower his demand under $650,000.00. Therefore, this
matter went to trial on 29 January 2001. During the trial, a
high/low agreement was made by the parties that guaranteed
plaintiff $250,000.00, plus $15,000.00 for costs, regardless of the
outcome, but capped recovery at $800,000.00. Defendants increased
their offer to $350,000.00, but it was not accepted. The trial
ended deadlocked at 10-2 in favor of defendants, and a mistrial was
Following the unsuccessful trial, Seago and other attorneys at
appellee law firm were involved in negotiations with their client,plaintiff, and defendants. Plaintiff made a settlement offer of
$500,000.00, while defendants were willing to settle for
$265,000.00. Both offers were rejected by the respective parties.
Plaintiff became dissatisfied with the representation provided
to him by appellee law firm and informed them of such. Acceding to
plaintiff's wishes, appellee filed a motion to withdraw on 23 April
2001. An order granting such was entered on 20 April 2001.
Thereafter, plaintiff secured the services of appellant Lloyd
Kelso of Lloyd T. Kelso & Associates. Plaintiff entered into a
contingency fee agreement with Kelso, promising to pay 35% of the
amount recovered. Once retained, Kelso reviewed plaintiff's file
that he had brought over from appellee. Kelso developed a strategy
and hired several new experts. Kelso also revisited witnesses,
including some who did not testify in the previous trial.
By September 2001, Kelso approached defendants about
settlement. Kelso made a new request on behalf of plaintiff in the
amount of $1,286,421.30. On 14 January 2002, a hearing was held as
to the validity of the high/low agreement from the first trial
and the issue of apportioning attorneys' fees between plaintiff's
attorneys. The parties were ordered into mediation and eventually
settled plaintiff's case for $525,000.00 on 22 January 2002. This
amount was able to be procured, appellant contends, largely because
of its work on the case. Further, appellant contends that had the
high/low agreement not been in effect, the recovery could have
been more. Either way, this amount was in excess of what plaintiff
was offered during appellee's representation of plaintiff. The
attorneys' fees issue was not resolved in mediation. On 4 February 2002, appellee filed a motion requesting a
portion of the attorneys' fees in the case. Appellant filed its
motion in opposition on 15 February 2002, requesting a jury trial
on the issue of the reasonable value of appellee's services. A
hearing was held during the 25 February 2002 Mixed Session of
Cleveland County Superior Court on 28 February 2002 before The
Honorable Richard D. Boner as to whether a jury trial should be
had. It was determined that the trial court would conduct a bench
trial on the attorneys' fees issue during the 26 March 2002 Civil
Session of Gaston County Superior Court before the same judge.
After the trial court heard the arguments and evidence on that
date, it filed its order on 17 April 2002. In this order and in
addition to the facts already discussed herein, the trial court
found that both firms entered into contingency fee agreements with,
provided competent legal services to, and advanced costs and
expenses on behalf of plaintiff. In finding of fact #12, the trial
court found that
[p]rior to the Plaintiff's discharge of
Melrose, Seago & Lay, P.A., the law firm had
244.72 hours in attorney and staff time
invested in the case and this amount of time
was reasonable and necessary to competently
represent the Plaintiff's interests in this
matter. Prior to its discharge by the
Plaintiff, Melrose, Seago & Lay, P.A. had
provided significant services to the Plaintiff
in this matter.
As to appellant's time in the case, the trial court found that it
had invested 332.02 hours of attorney and staff time in this
case. The trial court then found that:
The case between the Plaintiff and the
Defendants was ultimately settled by Lloyd T.
Kelso & Associates on behalf of the Plaintiff
in the amount of $525,000.00, thereby
generated a contingency fee of $183,750.00.
During 2000, both Lloyd T. Kelso & Associates
and Melrose, Seago, & Lay, P.A. charged
$200.00 per hour for litigation services.
Lloyd T. Kelso & Associates incurred
$40,565.73 in advanced costs and expenses on
behalf of the Plaintiff during the time it
represented the Plaintiff in this case. Lloyd
T. Kelso & Associates performed additional and
different work in preparing the case for trial
including having additional medical
evaluations performed of the Plaintiff, hiring
another accident re-construction expert and
After Lloyd T. Kelso & Associates
undertook representation of the Plaintiff, it
was able to settle the case for $150,000.00
over the Defendants' previous high offer made
during the first trial in this matter, and
$260,000.00 more than the Defendants offer
made immediately after the first trial
Although Lloyd T. Kelso & Associates
undertook additional and different work on
behalf of the Plaintiff in preparing the case
for trial, this does not change the fact that
Melrose, Seago & Lay, P.A. did a competent job
of representing the Plaintiff at the first
trial, and that Melrose, Seago, & Lay P.A.'s
performance during the first trial on behalf
of the Plaintiff was within the range of
competence to be expected of attorneys
practicing personal injury law in North
Based on these findings, the trial court concluded that:
4. The representation of Melrose, Seago, &
Lay P.A. conferred a valuable benefit
upon the Plaintiff for which it has not
5. Melrose, Seago & Lay, P.A. is entitled to
recover the reasonable value of itsservices in quantum meruit from the
Plaintiff from the contingency fee funds
generated by the successful settlement of
his case for the work it performed on
behalf of the Plaintiff until
unilaterally discharged by the Plaintiff
on April 20, 2001.
6. It would be unjust for the Plaintiff
and/or Lloyd T. Kelso & Associates to be
enriched by the legal services and
representation provided by Melrose,
Seago, & Lay P.A. without having to
compensate Melrose, Seago, & Lay P.A. for
7. Considering the totality of the
circumstances of this case, the
reasonable value for services for which
Melrose, Seago, & Lay P.A. is entitled to
recover is $86,500.00 from the
$183,750.00 contingency fee generated by
the ultimate successful settlement of
Appellant was awarded the remaining funds from the generated fee,
and both parties were awarded their costs. Appellant Lloyd T.
Kelso & Associates appeal from this order.
Appellant makes several assignments of error and presents the
following questions on appeal: Did the trial court commit
reversible error (I) by denying its motion to dismiss appellee's
motion to determine attorneys' fees; (II) by entering judgment
after conducting the hearing without a jury after a request was
made for such; (III) in finding that appellee was entitled to
recover attorneys' fees of $86,500.00 pursuant to quantum meruit;
and (IV) by abusing its discretion by awarding $86,500.00 as that
amount was not supported by the evidence.
 Appellant contends that the trial court erred by denying
its motion to dismiss for several reasons, including that appelleefailed to state a claim upon which relief could be granted. We
On a Rule 12(b)(6) motion to dismiss, the
question is whether, as a matter of law, the
allegations of the complaint, treated as true,
state a claim upon which relief can be
granted. Dismissal under Rule 12(b)(6) is
proper when one of the following three
conditions is satisfied: (1) the complaint on
its face reveals that no law supports the
plaintiff's claim; (2) the complaint on its
face reveals the absence of facts sufficient
to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats
the plaintiff's claim.
Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494
(2002) (citations omitted).
Appellee's motion alleges that it provided valuable legal
services to plaintiff pursuant to its contingency fee agreement.
Subsequent to the agreement and services, appellee was unilaterally
discharged by plaintiff. The case was settled afterward by another
law firm, appellant, which has received compensation. Appellee's
motion asked for three alternative remedies, two of which based an
award of attorneys' fees in quantum meruit.
The first inquiry is whether such a claim exists. This Court
has had occasion to address the issue of whether an attorney may
recover on a contingent fee contract when his clients have
discharged him prior to final disposition of the case. Covington
v. Rhodes, 38 N.C. App. 61, 63, 247 S.E.2d 305, 307 (1978), disc.
review denied, 296 N.C. 410, 251 S.E.2d 468 (1979). In holding
that an attorney may not recover on the contract but only the
reasonable value of his services, this Court stated:
A contract for legal services is not like
other contracts. The client has the right todischarge his attorney at any time, and it is
our view that upon such discharge the attorney
is entitled to recover the reasonable value of
the services he has already provided. As the
New York Court noted . . .: The rule secures
to the attorney the right to recover the
reasonable value of the services which he has
rendered, and is well calculated to promote
public confidence in the members of an
honorable profession whose relation to their
clients is personal and confidential.
Id. at 66, 247 S.E.2d at 309.
Further, in a more recent case, this Court allowed a
discharged attorney to pursue an action in quantum meruit against
the settling attorney itself, and not the client. See Pryor v.
Merten, 127 N.C. App. 483, 485-87, 490 S.E.2d 590, 592-93 (1997),
disc. review denied, 347 N.C. 578, 502 S.E.2d 597 (1998).
North Carolina has not addressed the
issue of whether an attorney, who before being
discharged performed significant services for
a client in a contingent fee relationship, may
recover from the settling attorney in quantum
meruit. Other courts have addressed and
resolved the issue. Joye v. Heuer, 813 F.Supp.
1171 (D.S.C. 1993)(court approved of a quantum
meruit distribution of the fees among the
attorneys in direct proportion to the hours
worked in the case); see also Potts v.
Mitchell, 410 F.Supp. 1278 (W.D.N.C. 1976)
(discharged attorney's quantum meruit recovery
was granted from funds being held as the
contingency fee). We find these federal
decisions persuasive and accordingly we
conclude the trial court properly allowed the
quantum meruit action by [the discharged
attorney] to proceed. To require [the
discharged attorney] to proceed against party
plaintiffs would unfairly require plaintiffs
to pay attorney's fees in excess of the
one-third contingency fee to which they
agreed. See Covington, 38 N.C. App. at 65,
247 S.E.2d at 308. We believe the more
equitable result is to allow the discharged
attorney to proceed against the new attorney
for the prior attorney's rightful share of the
total attorney's fees.
Id. at 487, 490 S.E.2d at 592-93.
Thus, 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. Appellee's motion properly
states a claim, and the supporting facts necessary thereunder.
Appellant's other arguments in support of this assignment of
error are without merit. Thus, this assignment of error is
 Appellant next contends that the trial court erred by
denying its request for a jury trial on the factual issue of
determining the reasonable value of appellee's services rendered to
plaintiff before discharge. Appellant argues that Article I,
Section 25 and Article IV, Section 13 of our state constitution
mandate that this issue be presented to a jury.
Section 25 of our state constitution states: In all
controversies at law respecting property, the ancient mode of trial
by jury is one of the best securities of the rights of the people,
and shall remain sacred and inviolable. N.C. Const. art. I, § 25
[A]rticle I, section 25 contains the sole
substantive guarantee of the important right
to trial by jury under the state constitution
while article IV, section 13 ensures that the
right as defined in article I will be
available in all civil cases, regardless of
whether they sound in law or equity.
Kiser v. Kiser, 325 N.C. 502, 507, 385 S.E.2d 487, 489 (1989). We disagree with appellant, however, and hold that
determinations of the reasonable value of services rendered by an
attorney, in situations such as the one before us, is the duty of
the trial court, reviewable on appeal only for abuse of discretion.
In Kiser, our Supreme Court further stated the law pertaining
to the right to a jury trial:
The right to trial by jury under article
I has long been interpreted by this Court to
be found only where the prerogative existed by
statute or at common law at the time the
Constitution of 1868 was adopted. Conversely,
where the prerogative did not exist by statute
or at common law upon the adoption of the
Constitution of 1868, the right to trial by
jury is not constitutionally protected today.
Where the cause of action fails to meet these
criteria and hence a right to trial by jury is
not constitutionally protected, it can still
be created by statute.
Id. at 507-08, 385 S.E.2d at 490 (citations omitted).
Appellee argues that it is entitled to reasonable compensation
under the theory of quantum meruit, an equitable remedy, which is
defined by Black's Law Dictionary to mean as much as deserved.
Black's Law Dictionary, 1243 (6th ed. 1990). Under current North
Carolina law, discussed above, an attorney, working pursuant to a
contingency fee contract, who is discharged without cause by his or
her client, is entitled to recover the reasonable value of his or
her services. This is the so-called modern rule. See Covington,
38 N.C. App. at 64, 247 S.E.2d at 308; see also George L. Blum,
Annotation, Limitation to Quantum Meruit Recovery, Where Attorney
Employed Under Contingent-Fee Contract is Discharged Without Cause,
56 A.L.R. 5th 1 (1998). As can be gathered by the name, this was not always so.
Covington, examining the law of other jurisdictions, noted that the
older rule, and still the rule in some jurisdictions, allowed an
attorney so positioned to recover the entire contingent fee. Id.
at 64, 247 S.E.2d at 307; see, e.g., Higgins v. Beaty, 242 N.C.
479, 88 S.E.2d 80 (1955) (involving a fixed fee contract and
holding that an attorney may recover on the contract). This was so
because courts would apply the general law of contract. See
O'Brien v. Plumides, 79 N.C. App. 159, 161, 339 S.E.2d 54, 55,
cert. improvidently allowed, 318 N.C. 409, 348 S.E.2d 805 (1986).
However, as explained in section I of this opinion, the general
contract rules were cast aside in favor of the modern rule for
reasons of public policy dealing with clients and their ability to
maintain their counsel of choice. See also id.
Thus, appellee points out that until the adoption of the
modern rule, clients presumably had no right to unilaterally
discharge an attorney and force him to pursue a quantum meruit
claim, and therefore the right to a jury trial is not protected by
Article I, Section 25. We agree. This case falls within the realm
of a number of claims cited in the Kiser opinion that have been
found to have no right to a jury trial:
See, e.g., In re Huyck Corp. v. Mangum, Inc.,
309 N.C. 788, 309 S.E.2d 183 (no jury trial
right where sovereign immunity would have
prevented the suit at common law); In re
Clark, 303 N.C. 592, 281 S.E.2d 47 (no jury
trial right in case involving parental
rights); In re Annexation Ordinances, 253 N.C.
637, 649, 117 S.E.2d 795, 804 (1961) (The
right to a trial by jury is not guaranteed in
those cases where the right and the remedy
have been created by statute since the
adoption of the Constitution [of 1868]);Utilities Commission v. Trucking Co., 223 N.C.
687, 28 S.E.2d 201 (no jury trial right in
petition for trucking franchise certificate);
Belk's Department Store, Inc. v. Guilford
County, 222 N.C. 441, 23 S.E.2d 897 (no jury
trial right for controversy over tax
valuation); Unemployment Compensation Comm. v.
Willis, 219 N.C. 709, 15 S.E.2d 4 (1941) (no
jury trial right in cases involving
administration of the tax laws); Hagler v.
Highway Commission, 200 N.C. 733, 158 S.E. 383
(1931) (no jury trial right under the
Workmen's Compensation Act); McInnish v. Bd.
of Education, 187 N.C. 494, 122 S.E. 182
(1924) (no jury trial right for discretionary
administrative decision regarding site for
school building); Groves v. Ware, 182 N.C.
553, 109 S.E. 568 (1921) (jury of six
constitutionally acceptable in insanity
hearing); Phillips v. Phillips, 73 N.C. App.
68, 326 S.E.2d 57 (1985) (no jury trial right
for equitable distribution action).
Kiser, 325 N.C. at 508, 385 S.E.2d at 490.
We note the case of Pryor v. Merten, quoted at length above,
as an example. Pryor, 127 N.C. App. at 485-87, 490 S.E.2d at 592-
93. That case involved a motion in the cause by the discharged
attorney and a hearing before the trial court. It is unclear but
doubtful that a request for a jury trial was made. As can be
gleaned from the quote reproduced in section I, the position of the
trial court is central to this inquiry. See also id. at 487, 490
S.E.2d at 592-93. Further, other jurisdictions recognize the role
of the trial court in this situation. See Ingber v. Sabato, 229
A.D.2d 884, 887, 645 N.Y.S.2d 918, 920 (1996) ([T]he courts
clearly 'possess the traditional authority to supervise the
charging of fees for legal services pursuant to their inherent
and statutory power to regulate the practice of law.'). Id.
(quoting Koral v. Koral, 185 A.D.2d 298, 299, 586 N.Y.S.2d 288, 290
(1992) (quoting Matter of First Natl. Bank v. Brower, 42 N.Y.2d471, 474, 368 N.E.2d 240, 1242 (1977))); Wegner v. Arnold, 305 Ill.
App. 3d 689, 693, 713 N.E.2d 247, 250 (1999) ('The trial judge has
broad discretion in matters of attorney fees due to the advantage
of close observation of the attorney's work and the trial judge's
deeper understanding of the skill and time required in the
case.'). Id. (quoting Kannewurf v. Johns, 260 Ill. App. 3d 66, 74,
632 N.E.2d 711, 716 (1994)).
The apportionment of attorneys' fees among the various lawyers
who have represented a party has not been regulated by statute and
is therefore within the province of the trial court. Accordingly,
appellant had no right to have the reasonable value of appellee's
services determined by a jury, as this issue is committed to the
sound discretion of the trial court.
This assignment of error is overruled.
III. & IV.
 Appellant's final two arguments contend that the trial
court erred in determining and awarding the $86,500.00 amount to
appellee. We disagree.
We recognize that no case in North Carolina dealing with the
discharge of an attorney who is rendering legal services pursuant
to a contingency fee contract has specifically set forth any
guidelines for the trial court to follow when determining the
reasonable value of the discharged attorney's services. It is
noted that North Carolina trial courts are not unfamiliar with such
a position. Trial courts are often asked to exercise their
discretion in awarding attorneys' fees. See, e.g.
, N.C. Gen. Stat.
§ 6-21.1 (2001) (allows trial court to award, in its discretion,attorneys' fees in a personal injury case when there was an
unwarranted refusal by an insurance company in a suit and the
recovery was less than $10,000.00); Washington v. Horton
, 132 N.C.
App. 347, 357, 513 S.E.2d 331, 334-35 (1999) (setting forth factors
for the trial court to consider in making its award). The factors
set forth in Horton
do not necessarily set forth a proper guide in
the current context as it deals with a much narrower determination
because of the parameters set forth in the statute.
Courts from other jurisdictions have set forth factors helpful
in the current situation. The New York case of Ingber v. Sabato
It is equally clear that the proper measure of
plaintiffs' compensation is quantum meruit and
that the amount to which they, as discharged
attorneys who had been employed under a
contingent fee contract, are entitled depends
on the court's interpretation of various
factors in its determination of the reasonable
value of the services rendered. Such factors
include, inter alia
, the terms of the
percentage agreement, the nature of the
litigation, difficulty of the case, time
spent, amount of money involved, results
achieved and amounts customarily charged for
similar services in the same locality.
, 229 A.D.2d at 887, 645 N.Y.S.2d at 920 (citations omitted).
See also Wegner
, 305 Ill. App. 3d at 693, 713 N.E.2d at 250 (In
making its determination, the trial court should assess all of the
relevant factors, including the time and labor required, the
attorney's skill and standing, the nature of the cause, the novelty
and difficulty of the subject matter, the attorney's degree of
responsibility in managing the case, the usual and customary charge
for that type of work in the community, and the benefits resulting
to the client.). These factors are consistent with our own case law when trial
courts have discretion to award attorneys' fees. For example, N.C.
Gen. Stat. § 75-16.1 (2001) authorizes attorneys' fees in unfair
and deceptive trade practices cases. See United Laboratories, Inc.
, 335 N.C. 183, 437 S.E.2d 374 (1993). In Kuykendall
our Supreme Court held:
The Court of Appeals held that there was
sufficient evidence before the trial court to
support an award of attorneys fees pursuant to
N.C.G.S. § 75-16.1, but it concluded the trial
court made insufficient findings on the
question of the reasonableness of the amount
awarded. The Court of Appeals, therefore,
remanded the case for findings of fact as to
the time and labor expended, the skill
required, the customary fee for like work, and
the experience or ability of the attorney.
. . .
In addition to these findings suggested
by the Court of Appeals, the trial court
should consider and make findings concerning
the novelty and difficulty of the questions
of law; the adequacy of the representation,
the difficulty of the problems faced by the
attorney, especially any unusual
difficulties, and the kind of case . . . for
which the fees are sought and the result
obtained[.] The court may also in its
discretion consider and make findings on the
services expended by paralegals and
secretaries acting as paralegals if, in [the
trial court's opinion], it is reasonable to do
at 195, 437 S.E.2d at 381-82 (citations omitted). See also
Owensby v. Owensby
, 312 N.C. 473, 475-77, 322 S.E.2d 772, 774-75
(1984) (same factors for attorneys' fees in divorce and alimony
actions); Lowder v. All Star Mills, Inc.
, 82 N.C. App. 470, 479-80,
346 S.E.2d 695, 700-01 (1986) (Attorneys' fees for derivative
shareholder action awarded by N.C. Gen. Stat. § 55-55(d) use the
same factors); see generally, Middleton v. Russell Group, Ltd.
, 126N.C. App. 1, 15-19, 483 S.E.2d 727, 735-37, disc. review denied
346 N.C. 548, 488 S.E.2d 805 (1997) (ERISA actions); see also
State Bar, Rule 1.5 (2002).
We hold that the factors set forth above are proper guidelines
for the trial courts to follow when determining the reasonable
value of a discharged attorney's services. These determinations are
reviewable upon appeal only for abuse of discretion.
In the present case, the trial court made several findings of
fact and conclusions of law. These noted that: (1) appellee hired
an accident reconstruction expert and two other experts to evaluate
the client's physical condition; (2) the amount promised to
appellee under the contingency fee contract was 1/3; (3) proof of
liability in this case was difficult; (4) defendant and insurer
vigorously defended the case; (5) settlement offers from defendant;
(6) it was reasonable for the Plaintiff to have two (2) attorneys
at trial given the questionable issue of liability, and the fact
that the case had the potential of a very large award for the
Plaintiff if the jury found the Defendants to be liable; (7) the
hours worked by appellee, reproduced above in finding of fact #12;
(8) the hours worked by appellant and its contingency fee contract
amount of 35%; (9) the amount charged by the attorneys; (10)
settlement offers and results obtained by appellant; (11) the
competency of appellee; and (12) the work provided by each firm.
The trial court awarded appellee $86,500.00. This amount
represents its proportionate amount, based upon hours of work put
into the case, of the total contingency fee, $183,750.00, generated
by plaintiff's case. First, we hold that the trial court made sufficient findings
to support its award of attorneys' fee. The trial judge presiding
over the hearing on attorneys' fees was the same judge that
presided over the mistrial. He was in the best position to make
the determination of ability and skill of the parties, as well as
to the difficulty of the case.
Secondly, the trial court did not abuse its discretion in
awarding to appellee the amount that it did, using the method that
it did. As we have said, the trial court has broad discretion in
awarding attorneys' fees in the present situation, capped only by
the principle that a client cannot be required to pay more than the
contingent fee to which he agreed with his current counsel (35%).
, 127 N.C. App. at 487, 490 S.E.2d at 592-93. Thus, the
trial court could have awarded a fee based on charges for hourly
work (X hours at X price = reasonable services). Further, the
trial court could have adjusted the award up or down, considering
what the true value of the services to the client amounted to in
In the present case, the trial court employed a method
described by other jurisdictions as quasi-quantum meruit
56 A.L.R. 5th at 102-03.
[T]he court seemed to employ a quasi-quantum
meruit approach in that it held that the
attorney was entitled to a percentage of the
amount awarded the client but that the
percentage was to be determined by limiting
the sum due from the client to that recovered
by the successor attorney and apportioning it
by comparing the nature and amount of the work
done by the subject attorney to that performed
by the successor attorney.
(referring to Saucier v. Hayes Dairy Products
, 373 So.2d
102 (La. 1978)); see also Goldstein and Price, P.C. v. Tonkin &
, 974 S.W.2d 543 (Mo. Ct. App. 1998); Gary E. Rosenberg,
P.C. v. McCormack
, 250 A.D.2d 679, 672 N.Y.S.2d 892 (1998). But
see Jones & Granger v. Johnson
, 788 So.2d 381 (Fla. Ct. App. 2001))
(attorney not entitled to portion of award, but only quantum
We hold that in North Carolina, a trial court situated as the
one in the present case may employ such a method if it believes, in
its discretion, that such a method aptly characterizes what the
discharged attorney is entitled, or is as much as he deserves.
Therefore, as we find that the trial court did not abuse its
discretion in any manner in handling the present matter, its ruling
and order is
Judges WYNN and ELMORE concur.
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