Appeal and Error_jurisdiction_appeal from State Bar
An appeal from a grant of summary judgment for defendant by the State Bar's
Disciplinary Hearing Commission was dismissed for lack of jurisdiction. The Court of Appeals'
jurisdiction is limited to that provided by the General Assembly, and N.C.G.S. § 84-28(h)
provides no appeal from a final order of the State Bar that does not impose discipline. The case
does not present appropriate circumstances for the grant of certiorari, and Rule 2 of the Appellate
Rules may not be construed to limit or extend jurisdiction.
The North Carolina State Bar, by Deputy Counsel A. Root
Edmonson, for plaintiff-appellant.
Tharrington Smith, L.L.P., by Douglas E. Kingsbery, for
defendant-appellee.
CALABRIA, Judge.
The North Carolina State Bar (“the State Bar”) appeals the
order of a panel of the Disciplinary Hearing Commission (“DHC”)
granting summary judgment to J. Richardson Rudisill, Jr.,
(“defendant”). For the reasons stated herein, we hold we do not
have jurisdiction, and accordingly cannot reach the merits of the
case.
On 3 April 2000, Grace Kathleen Urso (“the client”) signed a
fee contract for defendant's services with regard to a domestic
divorce. The fee contract provided, inter alia, the client pay “an
INITIAL NON-REFUNDABLE MINIMUM FEE of $25,000.00. . . to reserve
the Firm's services.” This fee would be the final fee unless thebillable time exceeded $25,000.00, in which case the client would
be billed for the additional time. In accordance with this
contract, the client paid defendant $25,000.00. Three days later,
the client reconciled with her spouse and informed defendant to
cease representation on her behalf. The client requested a refund
of any unearned portion of the fee. Defendant refused to refund
more than $15,000.00, and client declined to accept this
compromise. Although resolution of the fee dispute was sought
through the State Bar's fee dispute program, the State Bar filed a
complaint with the DHC on 15 August 2001.
The State Bar alleged defendant's conduct violated the
Revised Rules of Professional Conduct, specifically, Rule 1.5(a),
which prohibits “clearly excessive” fees, and 1.16(d), which
requires refunds of unearned portions of advanced payments.
Defendant answered, and on 17 June 2002, defendant moved for
summary judgment asserting the fee was a “true retainer” which he
was not obligated to refund, and the fee was not “clearly
excessive.” The DHC granted defendant's motion for summary
judgment, and the State Bar appeals.
This Court's jurisdiction is limited to that which “the
General Assembly may prescribe.” N.C. Const. Art. IV, § 12 (2).
Our statutes provide: “[f]rom any final order or decision of. . .
the North Carolina State Bar under 84-28. . . an appeal of right
lies directly to the Court of Appeals.” N.C. Gen. Stat. § 7A-29(a)
(2001). However, the appeal of right is limited as follows:
There shall be an appeal of right from any
final order imposing admonition, reprimand,
censure, suspension, stayed suspension, or
disbarment upon an attorney, or involuntarilytransferring a member of the North Carolina
State Bar to disability inactive status to the
North Carolina Court of Appeals. Review by the
appellate division shall be upon matters of
law or legal inference.
N.C. Gen. Stat. § 84-28(h) (2001). Since the statute provides no
appeal from a final order which does not impose discipline, the
State Bar has no statutory right to appeal the case at bar.
The State Bar asks this Court to consider its appeal as a
petition for writ of certiorari. Our statutory law provides this
Court with the jurisdiction to grant writs of certiorari as
follows:
The Court of Appeals has jurisdiction. . . to
issue the prerogative writs, including
mandamus, prohibition, certiorari, and
supersedeas, in aid of its own jurisdiction,
or to supervise and control the proceedings of
any of the trial courts of the General Court
of Justice, and of the Utilities Commission
and the Industrial Commission.
N.C. Gen. Stat. § 7A-32(c) (2001). Our appellate rules explain:
The writ of certiorari may be issued in
appropriate circumstances by either appellate
court to permit review of the judgments and
orders of trial tribunals when [(1)] the right
to prosecute an appeal has been lost by
failure to take timely action, or [(2)] when
no right of appeal from an interlocutory order
exists, or [(3)] for review pursuant to G.S.
15A-1422(c)(3) of an order of the trial court
denying a motion for appropriate relief.
N.C.R. App. P. 21(a)(1) (2003). Therefore, where, as here, the
case does not fall within Rule 21, none of the “appropriate
circumstances” are present to “permit the Court to issue a writ of
certiorari. . . .” State v. Wilson, 151 N.C. App. 219, 225, 565
S.E.2d 223, 227 (2002). The State Bar has asked this Court to suspend the requirements
of Rule 21 pursuant to Rule 2, which provides:
[t]o prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly provided by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon application of a party
or upon its own initiative, and may order
proceedings in accordance with its directions.
N.C.R. App. P. 2 (2003). However, our appellate rules “shall not
be construed to extend or limit the jurisdiction of the courts of
the appellate division as that is established by law.” N.C.R. App.
P. 1 (2003). Moreover, our Supreme Court, in addressing a request
to utilize Rule 2 to consider a petition for writ of certiorari
“outside the formal parameters of Rule 21” commented, “even if we
were so inclined, suspension of the appellate rules under Rule 2 is
not permitted for jurisdictional concerns.” Bailey v. State, 353
N.C. 142, 157, 540 S.E.2d 313, 322-23 (2000). Accordingly, where
we have no independent basis for jurisdiction, we may not utilize
Rule 2 to exercise jurisdiction in the case at bar. The appeal is
Dismissed.
Judges McCULLOUGH and STEELMAN concur.
*** Converted from WordPerfect ***