ARMSTRONG & ARMSTRONG, P.A.,
Plaintiff,
v
.
Johnston County
No. 03 CVS 00915
COLEY RHODES,
Defendant.
Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb and Barbara
B. Weyher, for plaintiff-appellee.
Hayes Hofler, P.A., by R. Hayes Hofler, for defendant-
appellant.
ELMORE, Judge.
This appeal arises from an attorney's claim for fees and a
client's counterclaim for legal malpractice. The trial court
granted summary judgment in the attorney's favor allowing the
collection of fees and precluding the legal malpractice action. We
affirm the orders of the trial court.
In July of 1999, Coley Rhodes was separating from her husband
and retained Marcia H. Armstrong of Armstrong & Armstrong, P.A., to
represent her in any equitable distribution matters concerning the
couple's marital estate. Coming to the forefront of those matters
was control of one asset in particular: Rhodes Chevrolet, a familycar dealership. Early during the couple's separation, Ms. Rhodes
entered into a consent judgment with her husband giving him
possession of the dealership. That same order also entitled Ms.
Rhodes to monthly reports on the business, and she became
increasingly concerned that her husband was mismanaging the
dealership and squandering its value. During this period, Ms.
Rhodes began asking Ms. Armstrong's advice on obtaining ownership
of the dealership for herself. Later in the representation, Mr.
Rhodes issued Rhodes Chevrolet stock certificates to Ms. Rhodes and
claimed he wanted her to have ownership of the dealership. Ms.
Armstrong had some concern about the validity of the stock
certificates and what impact the supposed transfer of ownership
after the date of separation would have on the equitable
distribution claims.
Ms. Armstrong was unable to settle the issue of ownership
satisfactorily to Ms. Rhodes, and on 30 December 2001, Ms. Rhodes
and her husband entered into a consent judgment regarding all
issues of the separation_including equitable distribution and
ownership of the dealership. Ms. Rhodes entered into the agreement
on her own and without Ms. Armstrong's knowledge. At the point she
entered into the voluntary agreement, the dealership's value had
been substantially eroded.
Following the close of Ms. Armstrong's relationship with Ms.
Rhodes, on 7 February 2002 Ms. Armstrong sent a letter and invoice
to Ms. Rhodes for her services. Despite receiving periodic
billing, Ms. Rhodes failed to pay the bill in full and theoutstanding balance as of that date was just over $17,000.00. Ms.
Armstrong's letter advised that after great deliberation she would
not pursue litigation to collect the fee but would instead accept
tender of any payment Ms. Rhodes felt she owed. Ms. Rhodes paid
nothing pursuant to the letter.
Thereafter, Ms. Armstrong received word that Ms. Rhodes had
retained counsel to file suit against her for malpractice if the
two could not come to an agreement over the way the issues
surrounding the representation resolved. This letter from Ms.
Rhodes's counsel advised that he would file an action in Onslow
County on 23 March 2003 if he did not hear back from Ms. Armstrong.
Ms. Armstrong, through another attorney, filed an action to collect
her fee in Johnston County on 20 March 2003. One day later, Ms.
Rhodes's counsel filed an action for malpractice and other claims
in Onslow County. Pursuant to Ms. Armstrong's motion, the Onslow
County action was dismissed as a compulsory counterclaim to the
previously filed action to collect fees. This order of dismissal
was not appealed. Rather, Ms. Rhodes answered the complaint in the
Johnston County action and counterclaimed for malpractice as well
as other claims previously asserted in the Onslow County action.
During the pending litigation in Johnston County, Ms. Rhodes
made several motions: a motion in open court to have Judge Jenkins
recused, and a motion to appoint a special judge and consolidate
the two actions (the Johnston County and Onslow County actions).
The trial court denied these motions. The trial court also entered
orders awarding summary judgment to Ms. Armstrong on her action forthe collection of fees and dismissing the malpractice counterclaims
of Ms. Rhodes. From all these orders, Ms. Rhodes appeals.
First, we will address Ms. Rhodes argument that Judge Jenkins
erred by failing to grant her oral motion for recusal.
The burden is on the party moving for recusal
'to demonstrate objectively that grounds for
disqualification actually exist.' In re
Nakell, 104 N.C. App. 638, 647, 411 S.E.2d
159, 164 (1991), appeal dismissed and disc.
review denied and stay dissolved, 330 N.C.
851, 413 S.E.2d 556 (1992) (citation omitted).
The moving party, supported by affidavits, may
meet his burden by presenting 'substantial
evidence that there exists such a personal
bias, prejudice or interest on the part of the
judge that he would be unable to rule
impartially.' Id. at 647, 411 S.E.2d at 164.
County of Johnston v. City of Wilson, 136 N.C. App. 775, 778, 525
S.E.2d 826, 828 (2000). Ms. Rhodes first argued that Judge Jenkins
should recuse himself because Ms. Armstrong was a party in the case
and practiced law in Johnston County. Ms. Rhodes later argued that
Judge Jenkins lived in Ms. Armstrong's neighborhood and could not
rule impartially on a matter involving Ms. Armstrong. We find
these arguments without merit.
Foremost, Ms. Rhodes offered no evidence or affidavits that
supported her motion for recusal, instead only argued the points
above; thus, without some presentation of evidence, we cannot say
that the trial court erred in failing to objectively find
substantial evidence of bias or prejudice. See id. (Without
affidavits or evidence of bias, the Court cannot adopt a general
standard that bars judges from hearing cases involving the county
where the judge resides); see also Lange v. Lange, 357 N.C. 645,649, 588 S.E.2d 877, 880 (2003) (Noting error for a trial court
judge to determine that recusal was appropriate based on “inferred
perception and not the facts as they were found to exist.”); Lange
v. Lange, 167 N.C. App. 426, 605 S.E.2d 732 (2004) (Upon remand,
this Court held that a judge's co-ownership of a vacation home and
infrequent collection of money from all co-owners, one of which was
an attorney on the case, did not rise to the standard of requiring
recusal.). Also, Ms. Rhodes failed to file a copy of the hearing
transcript in which her motion to recuse was made, heard, and
denied despite noting in the record one would be filed pursuant to
Rule 9(c) of our Appellate Rules. Without the ability to review
this transcript, we cannot say that it was error for the trial
court to deny the motion. Hicks v. Alford, 156 N.C. App. 384,
389-90, 576 S.E.2d 410, 414 (2003) (“It is the duty of the
appellant to ensure that the record is complete. . . . 'An
appellate court is not required to, and should not, assume error by
the trial judge when none appears on the record before the
appellate court.'”) (internal citations omitted)).
Next, Ms. Rhodes challenges the trial court's ruling that Ms.
Armstrong was entitled to summary judgment on her claim for money
owed under the parties' engagement contract. Ms. Rhodes argues
that Ms. Armstrong's 7 February 2002 letter is an accord and
satisfaction. We reject that notion.
'An “accord” is an agreement whereby one of
the parties undertakes to give or perform, and
the other to accept, in satisfaction of a
claim, liquidated or in dispute, and arising
either from contract or tort, something other
than or different from what he is, orconsidered himself entitled to; and a
“satisfaction” is the execution or
performance, of such agreement.' Sharpe v.
Nationwide Mut. Fire Ins. Co., 62 N.C. App.
564, 565, 302 S.E.2d 893, 894, cert. denied,
309 N.C. 823, 310 S.E.2d 353 (1983) (quoting
Allgood v. Trust Co., 242 N.C. 506, 515, 88
S.E.2d 825, 830-831 (1955)).
Zanone v. RJR Nabisco, 120 N.C. App. 768, 772, 463 S.E.2d 584, 587
(1995). The letter from Ms. Armstrong stated that although she
felt entitled to the invoiced amount, in an effort to “put this
[dispute] behind me and move forward,” she would accept any amount
Ms. Rhodes felt was owed and as a result would not pursue
litigation. Ms. Rhodes admitted in her deposition that Ms.
Armstrong had appropriately billed her for the work completed and
she owed the money pursuant to the agreement, yet at no point
before or after receipt of the letter did Ms. Rhodes forward Ms.
Armstrong any money.
Thus, on the facts before us, the question is not whether Ms.
Rhodes's payment pursuant to the letter constitutes an accord and
satisfaction of the underlying contractual obligation to pay, but
instead whether an attorney's offer to forego litigation against a
client for a full fee can be barred by an accord and satisfaction
if the client pays nothing pursuant to the offer. The answer is
no; we cannot find Ms. Rhodes's silence_nothing else appearing_as
evidence of an accord, and also find Ms. Armstrong's receipt of no
money a satisfaction of the underlying undisputed debt.
Accordingly, the trial court did not err by rejecting Ms. Rhodes's
argument that an affirmative defense existed and holding that Ms.Armstrong's forecast of evidence could prove the existence of a
valid undisputed contractual debt.
Ms. Rhodes next challenges the trial court's decision to grant
Ms. Armstrong's motion for summary judgment as to the legal
malpractice claims. We find Ms. Armstrong's argument as to the
doctrine of election of remedies controlling and thereby affirm the
order of the trial court.
In Stewart v. Herring, 80 N.C. App. 529, 531, 342 S.E.2d 566,
567 (1986), this Court discussed election of remedies in the
context of an attorney malpractice suit where the client had
accepted an unfavorable settlement agreement in a divorce action,
allegedly due to the negligence of that party's attorney.
Interpreting previous cases on the subject, this Court held:
if a party contends that he or she was
deprived of a legal claim because of the
action of another and he pursues the claim
against the original defendant he cannot then
make a claim against the party he says caused
him to lose all or part of the original claim.
This is so even if the settlement the
plaintiff is able to make on the original
claim is not as good as it would have been if
there had been no wrongful action by the third
party. In this case the plaintiff contends
she had a claim for permanent alimony which
was lost by the negligence of the defendant.
She then retained another attorney who filed a
counterclaim for alimony. The alimony
agreement negotiated by the defendant was
rescinded and a second alimony agreement
signed. By pursuing her claim for alimony
against her husband the plaintiff lost her
right to make a claim against the defendant
for his negligence in representing the
plaintiff in her original alimony claim.
Id. We see no significant difference between the facts here and
those in Stewart. Here, Ms. Rhodes alleges that the inaction ofher attorney allowed her husband to encumber the dealership with
debt and drain it of its value at the time of separation. However,
regardless of the validity of this claim, and without consultation,
Ms. Rhodes entered into a voluntary settlement agreement of all
aspects of her divorce, including the dealership. That agreement
was later incorporated into a judgment and even modified at the
consent of the parties. As Stewart instructs, this election by Ms.
Rhodes is binding “even if the settlement the plaintiff is able to
make on the original claim is not as good as it would have been if
there had been no wrongful action by the third party.” Id.
Accordingly, we see no error in the trial court's decision to grant
Ms. Armstrong's summary judgment motion against Ms. Rhodes's
allegations of malpractice.
We have carefully reviewed defendant's remaining properly
preserved assignments of error, including the provisional denial by
the trial court of Ms. Rhodes's Rule 60 motion, and find them to be
unpersuasive. Thus we affirm the orders of the trial court
entitling Ms. Armstrong to her earned fee and dismissing Ms.
Rhodes's action for malpractice.
Affirmed.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
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