Converted WP file 061350-1

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- appellant.

    LEVINSON, Judge.

    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 following:
    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 Defendant.

    Plaintiff brought claims under the parties' agreement for plaintiff's legal representation of defendant, and on the theory of quantum meruit.
    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 “all”costs, 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 approval.

    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 caused problems.
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 my expense!

    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 appealed.

    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. We disagree.
    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- approves.
    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
    Affirmed.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1