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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
VAN WINKLE, BUCK, WALL,
STARNES AND DAVIS, P.A.,
No. 05 CVD 5039
STUART L. REEMS,
Appeal by defendant from judgment entered 10 July 2006 by
Judge Shirley H. Brown in Buncombe County District Court. Heard in
the Court of Appeals 9 May 2007.
Van Winkle, Buck, Wall, Starnes, and Davis, P.A., by W. Perry
Fisher, II, and Brad A. Stark, for plaintiff-appellee.
The McDonald Law Office, by Diane K. McDonald, for defendant-
Stuart Reems (defendant) appeals from an order of summary
judgment entered in favor of plaintiff, the law firm of Van Winkle,
Buck, Wall, Starnes and Davis, P.A. We affirm.
The relevant facts are summarized as follows: Defendant hired
plaintiff to represent him in a lawsuit arising from an automobile
accident. Defendant's claim for damage to his truck was settled
for $10,500.00, and his bodily injury claims were submitted to a
jury, which returned verdicts totaling $335,000.00. Additional
sums were recovered from the tortfeasor and the parties' insurance
policies, for a total recovery of $370,655.53. When the case wasresolved, plaintiff billed defendant for $123,331.65. Defendant
paid only $113,552.66 of this amount, and on 14 November 2005
plaintiff filed suit against defendant to recover $9,835.39.
Plaintiff sought damages for breach of contract and under the
theory of quantum meruit, and alleged in relevant part the
3. Defendant retained the services of Plaintiff
to represent Defendant's interest in a
lawsuit[.] . . . The terms of the
representation were that Defendant would pay
Plaintiff one-third (1/3) of all recovery
obtained plus all costs.
. . . .
6. As a result of Plaintiff's efforts, Defendant
recovered the sum of . . .(370,655.53) for
[his] claims and injuries.
7. Defendant has been billed . . . $123,331.65 .
. . and Defendant has paid . . . $113,552.66
leaving a balance of . . . $9,835.39.
. . . .
12. . . . Defendant is indebted to Plaintiff in
the amount of . . . $9,835.39[.]
13. The entire sum of . . . 9,835.39 together with
interest . . . is due and owing from
Plaintiff brought claims under the parties' agreement for
plaintiff's legal representation of defendant, and on the theory of
In his answer, defendant did not dispute that he hired
plaintiff to represent him and agreed to pay one-third (1/3) of the
total recovery plus costs, and that the amount of recovery was as
stated by plaintiff. However, defendant denied liability for allcosts, and asserted that he was entitled to deduct one of the cost
items, as well as two other specific amounts, totaling $9,835.39:
(See footnote 1)
3. Disagree -
A. Property damage (truck) Mr. Fisher was to
recover 1) value of truck (he did) 2) interest
on that value (he did not calculate or ask for
this) 3) collection fee (he did not calculate
or ask for this)
B. Normal costs yes - major costs we discussed
and agreed or disagreed. He did not have
authorization to incur any cost without my
7. Disagree. Balance of $9,835.39 not due!
a) $3,396.39 (8% interest on $10,000 - not
asked for by Mr. Fisher - related to truck.)
b) $3,465.00 (collection fees - not asked for
by Mr. Fisher - related to truck.)
c) $3,034.00 (Jury Watch charge not agreed to
by S. Reems - original request for $12,000
vigorously objected to by S. Reems - agreed to
50/50 split of $2000 charge.)
$9,835.39 - Total withheld due to Mr. Fisher
In his prayer for relief, defendant asked the trial court to:
1) Review the details involving the $9,835.39 and
recognize what I believe to be the result of
Mr. Fisher's failure to represent me
effectively . . . and deny his request for
judgment against me.
2) It is not about 1/3 of total recovery. It is
in the details for failing to perform that I
differ with Mr. Fisher. Had he handled the
details he would have been paid. Mr. Fisher's
failure to handle the details should not be at
On 3 April 2006 plaintiff filed a motion for summary judgment.
In response defendant submitted an affidavit consisting of (1) hisanswer to plaintiff's complaint; (2) copies of two emails from
defendant to the chairman of the Fee Dispute Resolution Center,
expressing the same contentions contained in his answer; and (3)
copies of several faxes from defendant to plaintiff, also
expressing defendant's dissatisfaction with plaintiff's handling of
the settlement of his property damage claim, and repeating his
assertion that he should not have to pay for the jury selection
expert because he did not agree in advance to this expense. On 10
July 2006 the trial court entered an order granting plaintiff's
motion for summary judgment. From this order defendant timely
Standard of Review
Summary judgment is properly entered if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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)
(2005). On appeal from a summary judgment order, the standard of
whether there is any genuine issue of material
fact and whether the moving party is entitled
to a judgment as a matter of law. The burden
is upon the moving party to show that no
genuine issue of material fact exists and that
the moving party is entitled to judgment as a
matter of law. If the moving party satisfies
its burden, the burden shifts to the
non-movant to set forth specific facts showing
there exists a triable issue of fact.
McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430
(2005)(internal quotation marks and citations omitted).
Defendant argues that the trial court erred by entering
summary judgment, on the grounds that the evidence raises a genuine
issue of material fact regarding defendant's obligation to pay the
remaining $9,835.39 balance owed to plaintiff for legal services.
Plaintiff asserts that it was hired by defendant to provide
legal representation and that the terms of the representation were
that Defendant would pay Plaintiff one-third (1/3) of all recovery
obtained plus all costs. Defendant concedes that (1) he retained
plaintiff to provide legal services; (2) he agreed to pay one third
(1/3) of all recovery on defendant's claims; and that (3) plaintiff
accurately stated the total amount recovered. Defendant also
acknowledges his general obligation to pay costs in the action.
However, he asserts that he is entitled to subtract $9,835.39 from
the amount he owes plaintiff.
Defendant first contends that he is not liable for $6,801.39.
Defendant asserts that plaintiff should have recovered this amount
as part of the settlement of defendant's property damage claim, and
that not doing so constituted a failure to represent me
effectively[.] On this basis defendant claims that he does not
owe defendant this money. Defendant advances no legal theory or
precedent in support of his position that he has the right to
express displeasure with his attorney by withholding from the moneyhe owes an amount that he believes the attorney should have
recovered. Nor does defendant allege that he and plaintiff agreed
to such an arrangement. Accordingly, we reject defendant's
argument in this regard.
Defendant also asserts that he is entitled to deduct $3,034.00
from the amount he owes plaintiff. Defendant alleges that this
amount represents part of the fee for jury selection services, and
contends that he is not liable for the jury selection expert fee
because he did not approve it beforehand. Defendant concedes his
general obligation to pay costs, but asserts that this was limited
to normal costs only. Defendant also contends that plaintiff
did not have authorization to 'incur any cost' without my
approval. However, defendant never alleges that plaintiff agreed
to such an arrangement, or that this charge was a breach of the
parties' mutual agreement or contract. Nor does defendant include
in the record a contract for legal representation or other document
limiting his obligation for costs to only the costs that he pre-
A genuine issue of material fact might be raised by evidence
of a written agreement between the parties, or by a sworn statement
that both parties agreed
to limit defendant's obligation by
excluding fees not pre-approved by defendant, or by allowing
defendant to deduct those sums that he believes should have been
recovered. However, in the absence of either a written contract,
or even an affidavit averring that plaintiff agreed to this
arrangement, defendant's argument is supported by no more than hissubjective belief that he should not have to pay this part of the
costs. We conclude that the record does not raise a genuine issue
of material fact on defendant's obligation to pay the remaining
$9,835.39 of his legal fees.
We conclude that defendant has failed to demonstrate the
presence of a genuine issue of material fact, and that the summary
judgment order should be
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
Paragraphs in defendant's answer bear the same paragraph
numbers as the corresponding paragraph in the complaint.
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