{ "id": 11142677, "name": "GABRIELLA MURRAY HIEB and ROBERT NELSON HIEB, Plaintiffs v. WOODROW LOWERY, Defendant", "name_abbreviation": "Hieb v. Lowery", "decision_date": "1999-07-06", "docket_number": "No. COA98-102", "first_page": "1", "last_page": "20", "citations": [ { "type": "official", "cite": "134 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "374 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526975 ], "year": 1988, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0370-01" ] }, { "cite": "512 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "95", "parenthetical": "G.S. \u00a7 97-10.2(f)(l)(c) provides for reimbursement to defendant insurance company \"for all benefits . . . paid or to be paid by the employer under award of the Industrial Commission\" and \"does not state that [insurance company is] entitled to any prejudgment interest\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238743 ], "year": 1999, "pin_cites": [ { "page": "487", "parenthetical": "G.S. \u00a7 97-10.2(f)(l)(c" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0484-01" ] }, { "cite": "463 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "202" }, { "page": "202" } ], "opinion_index": 0 }, { "cite": "342 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795986 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "138" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0133-01" ] }, { "cite": "33 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276298 ], "weight": 3, "year": 1850, "pin_cites": [ { "page": "494" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc/33/0490-01" ] }, { "cite": "366 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "under N.C.G.S. \u00a7 97-90, attorney's fee taken from employee's share of judgment may not exceed one-third of amount recovered" } ], "opinion_index": 0 }, { "cite": "322 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513748 ], "year": 1988, "pin_cites": [ { "parenthetical": "under N.C.G.S. \u00a7 97-90, attorney's fee taken from employee's share of judgment may not exceed one-third of amount recovered" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0106-01" ] }, { "cite": "361 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358710 ], "year": 1987, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0562-01" ] }, { "cite": "480 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866773 ], "year": 1997, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0247-01" ] }, { "cite": "459 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "53" }, { "page": "53" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916395 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0546-01" ] }, { "cite": "202 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "606", "parenthetical": "quoting G.S. \u00a7 97-10.2(f)(1)(b)" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554749 ], "year": 1974, "pin_cites": [ { "page": "634", "parenthetical": "quoting G.S. \u00a7 97-10.2(f)(1)(b)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0632-01" ] }, { "cite": "447 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539104, 2537890, 2538279, 2534383, 2538558 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0602-05", "/nc/336/0602-02", "/nc/336/0602-04", "/nc/336/0602-03", "/nc/336/0602-01" ] }, { "cite": "438 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "469" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522201 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "358" }, { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0354-01" ] }, { "cite": "360 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "\"[o]ur decision in the previous appeal constitutes the law of the case\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723523, 4726053, 4726533, 4730695 ], "year": 1987, "pin_cites": [ { "parenthetical": "\"[o]ur decision in the previous appeal constitutes the law of the case\"" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0638-02", "/nc/320/0638-03", "/nc/320/0638-01", "/nc/320/0638-04" ] }, { "cite": "355 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "259", "parenthetical": "\"[o]ur decision in the previous appeal constitutes the law of the case\"" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169970 ], "year": 1987, "pin_cites": [ { "page": "417", "parenthetical": "\"[o]ur decision in the previous appeal constitutes the law of the case\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0410-01" ] }, { "cite": "210 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "183", "parenthetical": "\"[t]he decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal\"" } ], "opinion_index": 0 }, { "cite": "286 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565054 ], "year": 1974, "pin_cites": [ { "page": "239", "parenthetical": "\"[t]he decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0235-01" ] }, { "cite": "417 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "quoting D & W, Inc., 268 N.C. at 724, 152 S.E.2d at 203" } ], "opinion_index": 0 }, { "cite": "331 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498691, 2499210, 2496875, 2499020, 2499320 ], "year": 1992, "pin_cites": [ { "parenthetical": "quoting D & W, Inc., 268 N.C. at 724, 152 S.E.2d at 203" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0286-01", "/nc/331/0286-03", "/nc/331/0286-04", "/nc/331/0286-05", "/nc/331/0286-02" ] }, { "cite": "411 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "620", "parenthetical": "quoting D & W, Inc., 268 N.C. at 724, 152 S.E.2d at 203" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521516 ], "year": 1992, "pin_cites": [ { "page": "101", "parenthetical": "quoting D & W, Inc., 268 N.C. at 724, 152 S.E.2d at 203" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0098-01" ] }, { "cite": "3 S.E. 515", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "opinion_index": 0 }, { "cite": "98 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273954 ], "year": 1887, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc/98/0225-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "152 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "202" }, { "page": "202", "parenthetical": "\"[a] reversal, when filed in the lower court, automatically sets the lower court's decision aside without further action by that court\"" }, { "page": "203" } ], "opinion_index": 0 }, { "cite": "268 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565339 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "722" }, { "page": "722" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0720-01" ] }, { "cite": "479 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54050, 53956, 53868, 53842, 54108 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0179-04", "/nc/345/0179-05", "/nc/345/0179-02", "/nc/345/0179-01", "/nc/345/0179-03" ] }, { "cite": "472 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "212" }, { "page": "212" }, { "page": "211" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11911649 ], "weight": 4, "pin_cites": [ { "page": "66-67" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0061-01" ] }, { "cite": "474 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1996, "pin_cites": [ { "page": "326-27", "parenthetical": "Lowery" }, { "page": "409-10" }, { "page": "326-27" }, { "page": "326", "parenthetical": "observing that this Court in Hieb I \"unanimous [ly] . . . affirm[ed] that portion of Judge Johnston's order relating to the workers' compensation lien of St. Paul\"" }, { "page": "326" }, { "page": "326-27" }, { "page": "327" } ], "opinion_index": 0 }, { "cite": "344 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867649 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "409", "parenthetical": "Lowery" }, { "page": "408" }, { "page": "408" }, { "page": "409" }, { "page": "409-10" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0403-01" ] }, { "cite": "464 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "parenthetical": "Hieb II" }, { "page": "311" }, { "page": "311" }, { "page": "312" }, { "page": "312" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915167 ], "weight": 5, "year": 1995, "pin_cites": [ { "parenthetical": "Hieb II" }, { "page": "38" }, { "page": "39" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0033-01" ] }, { "cite": "434 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520040 ], "year": 1993, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0047-01" ] }, { "cite": "495 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "loss of consortium judgment not recoverable where judgment by primary plaintiff exhausts policy coverage" } ], "opinion_index": 0 }, { "cite": "347 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551073 ], "weight": 3, "year": 1998, "pin_cites": [ { "parenthetical": "loss of consortium judgment not recoverable where judgment by primary plaintiff exhausts policy coverage" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0560-01" ] }, { "cite": "435 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "parenthetical": "Hieb I" }, { "page": "828" }, { "page": "828" }, { "page": "828", "parenthetical": "emphasis added" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522276 ], "year": 1993, "pin_cites": [ { "parenthetical": "Hieb I" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0502-01" ] } ], "analysis": { "cardinality": 1248, "char_count": 44060, "ocr_confidence": 0.756, "pagerank": { "raw": 3.985698087965954e-07, "percentile": 0.9052039327389357 }, "sha256": "8d17142330dcb00fdab8412100b00352c481b88360dc8edbbf61d6ed118bb28a", "simhash": "1:6d2bd5685cbfed06", "word_count": 7151 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HORTON concur." ], "parties": [ "GABRIELLA MURRAY HIEB and ROBERT NELSON HIEB, Plaintiffs v. WOODROW LOWERY, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs appeal the trial court\u2019s grant of defendant\u2019s \u201cMotion for Judicial Assistance,\u201d and assert the trial court erred, inter alia, in: 1) \u201cdeterminfing] [Gabriella Hieb\u2019s] and her employer\u2019s workers\u2019 compensation insurance carrier\u2019s respective rights to judgment proceeds, and ordering] how those judgment proceeds were to be disbursed\u201d; 2) holding that attorney\u2019s fees paid to [Charles G. Monnett, III (Monnett)] were not proper; 3) \u201cholding [Monnett] personally liable for the repayment of judgment proceeds\u201d; and 4) requiring Mrs. Hieb and \u201cher attorney to pay interest on a worker\u2019s compensation lien.\u201d We affirm in part, vacate in part, and remand with instructions.\nPertinent facts and procedural history include the following: On 20 July 1990, plaintiffs Gabriella Hieb (Mrs. Hieb) and her husband, Robert Hieb, filed suit against defendant Woodrow Lowery and unnamed defendant Hartford Accident and Indemnity Company (Hartford), Mrs. Hieb\u2019s underinsured motorist (UIM) insurance carrier. Plaintiffs sought damages for personal injury and loss of consortium resulting from a 17 October 1992 automobile collision in which Mrs. Hieb was injured while in the scope and course of her employment by Howell\u2019s Child Care Center. At trial during the 12 October 1992 Civil Session of Mecklenburg County Superior Court, the jury returned a verdict against defendants and awarded Mrs. Hieb $1,279,000.00 and her husband the sum of $40,000.00.\nThe 20 November 1992 judgment of the trial judge, Judge Robert E. Gaines (the judgment of Judge Gaines), included the following findings of fact:\n6. St. Paul Fire and Marine [(St. Paul), the workers\u2019 compensation carrier for plaintiff\u2019s employer,] contends that it is entitled to a worker\u2019s [sic] compensation lien pursuant to North Carolina General Statute[s] [s]ection 97-10.2 against any amounts payable to Plaintiff Gabriella Murray Hieb under the Hartford policy.\n7. The Plaintiffs have instituted a second action against St. Paul... and Hartford ... to determine the respective rights of the parties to the benefits of the Hartford underinsured motorist coverage and to determine the amount of such coverage.\n8. That on or about August 28, 1992, an order was entered in that action by the Honorable Robert P. Johnston which holds that the [sic] Hartford is allowed to reduce its limits by the amount of workers\u2019] compensation paid or to be paid to Plaintiff and further holding that the proceeds of the Hartford underinsured policy are subject to the lien of [St. Paul] pursuant to North Carolina General Statute[s] [s]ection 97-10.2. That action is now on appeal to the North Carolina Court of Appeals.\nJudge Gaines thereupon ordered that St. Paul was entitled to a lien against proceeds of the Hartford UIM policy (the Hartford proceeds) for \u201call amounts paid or to be paid\u201d to plaintiff as workers\u2019 compensation benefits. Plaintiffs did not pursue an appeal of the judgment of Judge Gaines.\nAs referenced in that judgment, plaintiffs had filed a 4 March 1991 action against Hartford and St. Paul seeking a declaratory judgment determining the rights of the parties to the Hartford proceeds. Hartford contended its policy contained language allowing it to reduce its policy limits by the amount of any workers\u2019 compensation benefits paid or to be paid to Mrs. Hieb. St. Paul disagreed, maintaining it was entitled to a lien against the Hartford proceeds.\nIn this second action, Judge Robert P. Johnston entered a 28 August 1992 order (Judge Johnston\u2019s order), permitting reduction of Hartford\u2019s policy limits by the amount of workers\u2019 compensation paid or to be paid to Mrs. Hieb and according St. Paul a lien against the Hartford proceeds for \u201call amounts paid or to be paid to [Mrs. Hieb].\u201d Judge Johnston\u2019s order further provided that:\n[a]ny payments which may be made by [Hartford], pursuant to its underinsured motorist coverage, shall be disbursed subject to the provisions of N.C.G.S. \u00a7 97-10.2.\nPlaintiffs appealed Judge Johnston\u2019s order to this Court. In the first of multiple opinions involving plaintiffs, we reversed the provision of the order allowing Hartford to reduce its UIM policy limits, but affirmed that portion pertaining to St. Paul\u2019s workers\u2019 compensation lien against the Hartford proceeds. See Hieb v. St. Paul Fire & Marine Ins. Co., 112 N.C. App. 502, 435 S.E.2d 826 (1993) (Hieb I), overruled on other grounds, McMillian v. N.C. Farm Bureau Mutual Ins. Co., 347 N.C. 560, 495 S.E.2d 352 (1998). Specifically, we held St. Paul was entitled to a lien on \u201call amounts paid or to be paid to [Mrs. Hieb]\u201d from the Hartford proceeds because\nN.C. General Statute Section 97-10.2 provides for the subrogation of the workers\u2019 compensation insurance carrier ... to the employer\u2019s right, upon reimbursement of the employee, to any payment, including uninsured/underinsured motorist insurance proceeds, made to the employee by or on behalf of a third party as a result of the employee\u2019s injury.\nSee id. at 507, 435 S.E.2d at 828 (quoting Bailey v. Nationwide Mutual Ins. Co., 112 N.C. App. 47, 54, 434 S.E.2d 625, 630 (1993), overruled on other grounds, McMillian, 347 N.C. 560, 495 S.E.2d 352 (1998)); see also N.C.G.S. \u00a7 97-10.2 (1991). Hieb I was not further appealed.\nOn or about 20 December 1993 and pursuant to Judge Johnston\u2019s order, our decision in Hieb I, and the judgment of Judge Gaines, Hartford tendered its UIM policy limits ($475,000.00) to the Office of the Mecklenburg County Clerk of Superior Court (the Clerk). As of 18 December 1993, St. Paul had paid $259,042.77 in workers\u2019 compensation benefits to Mrs. Hieb. However, plaintiffs and St. Paul disagreed as to disbursement of the Hartford proceeds, the latter contending no portion thereof could be disbursed either to Mrs. Hieb or her husband until the workers\u2019 compensation lien of St. Paul was calculated and satisfied in full.\nPlaintiffs consequently filed a Motion to Modify Judgment, Enforce Judgment and Set Workers\u2019 Compensation Lien. By order entered 28 July 1994, Judge Claude Sitton (Judge Sitton\u2019s order), acting pursuant to N.C.G.S. \u00a7 97-10.2, ruled that St. Paul was entitled to recover $241,677.77 as full satisfaction of any workers\u2019 compensation lien it might have on benefits paid or to be paid to Mrs. Hieb, and that the remaining Hartford proceeds were to be paid to plaintiffs. St. Paul appealed Judge Sitton\u2019s order to this Court. See Hieb v. Lowery, 121 N.C. App. 33, 464 S.E.2d 308 (1995) (Hieb II), aff'd, 344 N.C. 403, 474 S.E.2d 323 (1996).\nOn 12 August 1994, while awaiting disposition of Hieb II, St. Paul contacted\nall treating physicians and advised that [it] would no longer pay plaintiffs medical expenses . . . [and thereafter] stopped paying plaintiff her permanent and total disability compensation.\nFurther, St. Paul filed with the North Carolina Industrial Commission (the Commission) a 4 October 1994 \u201cMotion to Stop Payment of Compensation and Motion to Stay Distribution of Third Party Proceeds.\u201d On 12 May 1995, the Full Commission filed an opinion and award requiring, inter alia, St. Paul to resume payments to Mrs. Hieb. The Commission further stated in pertinent part:\n7. Deputy Commissioner [Nance] considered [St. Paul\u2019s] Motion to Stop Payment of Compensation and Motion to Stay Distribution of Third Party Proceeds. Deputy Commissioner Nance, in an order filed on October 4, 1994, determined that the Industrial Commission does not have jurisdiction to act now, and effectively overrule Judge Sitton, until such time as the Court of Appeals rules on defendants\u2019 appeal from Judge Sitton\u2019s Order.\nCONCLUSIONS OF LAW\n1. The Industrial Commission does not have jurisdiction over the disbursement of the third-party funds [i.e., the Hartford proceeds] in this case.\n. . . The Industrial Commission is not a court of general jurisdiction, and any jurisdiction it exercises must be conferred by statute. The statutory authority for distribution of third-party funds for the Industrial Commission is [G.S. \u00a7] 97-10.2(f).... The Industrial Commission has no authority to distribute funds under [G.S. \u00a7] 97-10.2Q). Authority for distribution of funds under that subsection is granted exclusively to the General Court of Justice. The Court must accept jurisdiction to distribute funds when: a) Judgment is obtained which is insufficient to compensate the subrogation claim of the workers\u2019 compensation insurance carrier; or b) There is a settlement, and the parties apply to the Superior Court judge for distribution for determination of how the funds ought to be distributed.\n2. [Judge Sitton] in the instant case decided that the judgment was insufficient to compensate the subrogation claim of the workers\u2019 compensation carrier and assumed jurisdiction over the distribution of funds under [G.S. \u00a7] 97-10.2Q). Whether the judge\u2019s exercise of discretion was correct or incorrect is not a question for the Industrial Commission to decide. The matter is properly on appeal to the Court of Appeals at this time, and the Industrial Commission will abide accordingly with any of the Court\u2019s determinations or directions with regard to this matter.\nSt. Paul subsequently appealed the Commission\u2019s opinion and award to this Court. See Hieb v. Howell\u2019s Child Care Center, 123 N.C. App. 61, 472 S.E.2d 208 (Hieb III), disc. review denied, 345 N.C. 179, 479 S.E.2d 204 (1996).\nOn 5 December 1995, a divided panel of this Court in Hieb II reversed Judge Sitton\u2019s order, holding that, in view of Judge Johnston\u2019s order specifying that \u201cSt. Paul could assert a lien pursuant to \u00a7 97-10.2 against all of the [Hartford] proceeds,\u201d Hieb II, 121 N.C. App. at 38, 464 S.E.2d at 311, the trial court was without authority to exercise its discretion under G.S. \u00a7 97-10.2Q) to determine the amount of the lien and order the balance of the Hartford proceeds to be paid to plaintiffs. Id. We stated that the trial court could not modify the order of another superior court judge because the \u201cjudgment\u201d exceeded the amount necessary to reimburse the workers\u2019 compensation insurance carrier and that the court was prohibited from speculating upon what might happen in the future. Id. at 37-8, 464 S.E.2d at 311.\nOn appeal, our Supreme Court elaborated that but two events \u201ctrigger the authority of a judge to exercise discretion in determining or allocating the amount of lien or disbursement\u201d under G.S. \u00a7 97-10.20):\n(1) a judgment insufficient to compensate the subrogation claim of the workers\u2019 compensation insurance carrier or (2) a settlement.\nHieb v. Lowery, 344 N.C. 403, 409, 474 S.E.2d 323, 326-27 (1996) (Lowery). In that neither event was present in Hieb II, the Supreme Court upheld our reversal of Judge Sitton\u2019s order. Id. at 409-10, 474 S.E.2d at 326-27.\nSubsequently, on 2 July 1996, this Court issued its opinion in Hieb III, addressing St. Paul\u2019s appeal from the Commission\u2019s Opinion and Award. We affirmed the action of the Commission, but noted that:\n[wjithout the benefit of our decision in Hieb II, the Commission erred in finding that it did not have jurisdiction over the disbursement of the third party funds [since] ... we found in Hieb II that the Commission, not the superior court, has jurisdiction to disburse third party proceeds in this case ....\nHieb III, 123 N.C. App. at 66-67, 472 S.E.2d at 212.\nDuring the pendency of these multiple appeals, Monnett secured from the Clerk disbursement of the proceeds deposited by Hartford, $424,076.17 thereof being designated as payable to Monnett as attorney for Mrs. Hieb, and $50,923.83 payable to Monnett as attorney for Robert Hieb. Monnett placed the former in an interest-bearing certificate of deposit account in his name as attorney for Mrs. Hieb, and the latter in his law firm\u2019s regular trust account.\nRegarding these funds, Monnett states in his affidavit attendant to the instant appeal:\n8. At the time the funds were deposited in my trust account and in the certificate of deposit, and at all times since, there has been no legitimate question regarding my attorney\u2019s fee. As to St. Paul\u2019s portion of the recovery, in the November 20, 1992, judgment, Judge Gaines determined that [I] was allowed \u201can attorney\u2019s fee of 33.33% of all amounts ... paid to [St. Paul].\u201d As to the Hieb\u2019s portion of the recovery, I had ... [a contingency fee agreement] which allowed an attorney\u2019s fee of one-third of all amounts recovered on behalf of the Hiebs.... St. Paul did not timely seek review of my attorney\u2019s fees by an appeal of The judgment of Judge Gaines. . . .\n9. On March 29, 1994, in accordance with Judge Gaines\u2019 Order and the fee agreement with the Hiebs, I withdrew $142,329.61 from the certificate of deposit. . . for attorney fees.\n11. After entry of Judge Sitton\u2019s Order, [the Hiebs] requested that I pay them their portion of the judgment proceeds to which they were entitled to pursuant to Judge Sitton\u2019s order.\n12. On July 26 and 28, 1994, almost two weeks after the entry of Judge Sitton\u2019s order and in accordance therewith, I disbursed the remaining judgment proceeds as follows:\n7/26/94 [Mrs. Hieb] .$10,000.00\n7/28/94 [Monnett] .$18,344.66\n7/28/94 [Judgment lien against plaintiffs] .$5,112.50\n7/28/94 [Lien for a loan to plaintiffs] .$3,000.00\n7/28/94 [St. Paul] [Representing $241,677.77 less attorney fee of $80,551.20] .$161,126.57\n7/28/94 [TheHiebs].$115,964.72\nBy letter to Monnett dated 10 September 1996 and citing our decision in Hieb II, St. Paul requested that\nall of the proceeds which were taken from the Clerk of Superior Court be returned to the [C]lerk for deposit within ten days less [$161,126.57,] the amount which has already been reimbursed to St. Paul.\nMonnett refused, thus bringing us chronologically to the subject of the instant appeal.\nSt. Paul thereupon filed a \u201cMotion for Judicial Assistance\u201d (St. Paul\u2019s motion) 25 March 1997 seeking an accounting by plaintiffs and Monnett regarding the funds disbursed by the Clerk to Monnett. In an Order filed 5 May 1997, Judge Dennis Winner (Judge Winner\u2019s order I) ruled the trial court was accorded jurisdiction over St. Paul\u2019s motion by N.C.G.S. \u00a7 1-298 (1996) in order\nto effect the rulings of the Court of Appeals and the Supreme Court and . . . the inherent power to enforce the Orders of this Court; in this case, the ruling of Judge Robert Johnston.\nOn 29 October 1997, Judge Winner amplified order I in a directive (Judge Winner\u2019s order II) providing in pertinent part as follows:\n2. . . . Both the Order by Judge Johnston and the Judgment by Judge Gaines specifically directed that St. Paul was entitled to a workers\u2019 compensation lien for all workers\u2019 compensation \u201cpaid or to be paid to the Plaintiff.\u201d These Orders are the law of this case, and this Court is not willing to change the prior rulings of either Judge ....\n3. ... A total of $475,000.00 of money paid by the UIM carrier (Hartford), which was paid in to the Clerk . . . and subsequently taken by Mr. Monnett, is subject to a lien by St. Paul for all payments made and to be made for workers\u2019 compensation benefits in accordance with the Order of Judge Johnston, Judge Gaines, two Court of Appeals orders and the Order of the North Carolina Supreme Court.\nThe prior Order of Judge Sitton accounted for $241,677.77 being disbursed to or on behalf of St. Paul. Of that amount, $161,126.57 was paid directly to St. Paul on July 28, 1994, and $80,551.20 was paid as attorney fees to [Monnett]. This leaves a remaining balance of $233,322.23. Two-thirds of that amount ($155,548.15) is the amount potentially recoverable by St. Paul from the remaining funds after allowing for a one-third attorney\u2019s fee.\n[The] Order of this Court. . . require[s] that only the amount of $155,548.15, with interest at the rate of eight percent from July 28, 1994 until paid, be deposited with the Clerk . . . and to be disbursed in the manner set forth [herein]. . . .\n6. . . .[Moreover, Monnett] has requested that the liability for replacement of the funds be solely that of Mr. and Mrs. Hieb, and that he be relieved of any obligation for payment of these funds. The Court finds from this record that [Monnett] took these funds from the Clerk . . . without the knowledge or consent of St. Paul, prior to the issuance of any Order by Judge Sitton, and refused the requests by St. Paul to return the funds to the Clerk of Court. The Court finds that [Monnett] created a fiduciary obligation to St. Paul by the taking of these funds, and that he, thus, created an obligation to St. Paul to account for such funds.\nRegarding Monnett\u2019s attorney fees, Judge Winner stated:\n4. This Court finds that under the provisions of G.S. \u00a7 97-10.2 any determination with respect to the payment of counsel fees must be made by the Industrial Commission and all attorneys\u2019 fees must be approved by the Industrial Commission. G.S. \u00a7 97-10.2(j) makes no provision for calculation or disbursement of attorneys\u2019 fees. It would appear to this Court that no Order has ever been entered by the North Carolina Industrial Commission approving the disbursement of attorneys\u2019 fees from this recovery. The Court finds that unless and until such an Order from the North Carolina Industrial Commission is entered, the disbursement of attorneys\u2019 fees to [Monnett] was not proper.\nPlaintiffs and Monnett filed timely notice of appeal from Judge Winner\u2019s order I and order II respectively.\nPreliminarily, we address plaintiffs\u2019 assertion that Judge Winner\u2019s order I \u201cholding that [the trial court] had jurisdiction [to enter an order] pursuant to N.C. Gen Stat. \u00a7 1-298 [was] in error.\u201d We conclude plaintiffs are mistaken.\nG.S. \u00a7 1-298 states that\n[i]n civil cases, at the first session of the superior or district court after a certificate of the determination of an appeal is received, if the judgment is affirmed the court below shall direct the execution thereof to proceed, and if the judgment is modified, shall direct its modification and performance ....\nPlaintiffs maintain Judge Winner\u2019s order I constituted error in light of the reversal of Judge Sitton\u2019s order by this Court, see Hieb II, 121 N.C. App. 33, 464 S.E.2d 308, and because G.S. \u00a7 1-298 \u201chas no application to a decision of this Court reversing the judgment of the lower court.\u201d D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966). Plaintiffs\u2019 argument is misdirected.\nIn focusing upon Judge Sitton\u2019s order, plaintiffs fail to account for Judge Winner\u2019s explicit finding that the trial court had \u201cjurisdiction pursuant to [G.S. \u00a7] 1-298 to effect the rulings of the Court of Appeals and the Supreme Court and .. . the ruling of Judge Robert Johnston\u201d (emphasis added). As opposed to Judge Sitton\u2019s order which was rendered invalid on appeal, see Hieb II, 121 N.C. App. at 39, 464 S.E.2d at 312; see also D & W, Inc., 268 N.C. at 722, 152 S.E.2d at 202 (\u201c[a] reversal, when filed in the lower court, automatically sets the lower court\u2019s decision aside without further action by that court\u201d) (citation omitted), Judge Winner sought to effect Judge Johnston\u2019s order which had been modified on appeal, see Hieb I, 112 N.C. App. at 506-07, 435 S.E.2d at 828, and which provided for a lien by St. Paul on \u201call [workers\u2019 compensation] amounts paid or to be paid\u201d to Mrs. Hieb. See id. at 506, 435 S.E.2d at 828 (emphasis added); see also Lowery, 344 N.C. at 408, 474 S.E.2d at 326 (observing that this Court in Hieb I \u201cunanimous [ly] . . . affirm[ed] that portion of Judge Johnston\u2019s order relating to the workers\u2019 compensation lien of St. Paul\u201d). The trial court in Judge Winner\u2019s order I thus properly assumed jurisdiction of St. Paul\u2019s motion under G.S. \u00a7 1-298 because Judge Johnston\u2019s prior order, albeit modified, was, in the words of the trial court, \u201cstill in effect.\u201d\nPlaintiffs next assert the trial court erred in \u201cdetermin[ing] the Hiebs\u2019 and St. Paul\u2019s respective rights to judgment proceeds and ordering] the disbursement of those judgment proceeds.\u201d The latter portion of plaintiffs\u2019 argument has merit.\nWithout doubt, it is well established that \u201cone Superior Court judge . . . may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.\u201d Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). Further, \u201cafter an appeal the action becomes final and conclusive.\u201d In re Griffin, 98 N.C. 225, 227, 3 S.E. 515 (1887). Accordingly, any trial court action which varies,\ndisregard^] the decree of this [appellate court], . . . [or] attempts] to postpone its enforcement [is] beyond [the trial court\u2019s] authority and [its] order to that effect is a nullity.\nSeverance v. Ford Motor Co., 105 N.C. App. 98, 101, 411 S.E.2d 618, 620, disc. review denied, 331 N.C. 286, 417 S.E.2d 255 (1992) (quoting D & W, Inc., 268 N.C. at 724, 152 S.E.2d at 203).\nConcerning plaintiffs\u2019 attack upon Judge Winner\u2019s determination of the entitlement of St. Paul to a lien on the Hartford proceeds and the amount of that lien, we note our Supreme Court resolved this identical argument in Lowery as follows:\nPlaintiffs argue that the issue previously decided by Judges Gaines and Johnston was whether [St. Pa\u00fal] could assert a lien ... against the [Hartford] proceeds .. . while the issue before Judge Sitton was the amount of such workers\u2019 compensation lien that should be allowed. . . .\nFrom the plain language of [Judge Gaines\u2019] judgment, it is clear that the amount of the lien is to be the total of all amounts paid or to be paid to plaintiff as workers\u2019 compensation benefits. ... Thus, the issue of amount was dealt with and decided... prior to plaintiffs presenting the matter to Judge Sitton.\nLowery, 344 N.C. at 408, 474 S.E.2d at 326. Likewise, in Hieb I this Court held that \u201cSt. Paul is entitled to a workers\u2019 compensation lien against all amounts paid or to be paid to Mrs. Hieb by Hartford pursuant to its UIM coverage.\u201d Hieb I, 112 N.C. App. at 507, 435 S.E.2d at 828.\nPlaintiffs\u2019 arguments to the contrary, it is indisputably the law of this case that St. Paul is entitled to a workers\u2019 compensation lien in the amount of the total workers\u2019 compensation \u201cpaid or to be paid to the Plaintiff.\u201d See Transportation, Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974) (\u201c[t]he decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal\u201d); see also Stone v. Martin, 85 N.C. App. 410, 417, 355 S.E.2d 255, 259, disc. review denied, 320 N.C. 638, 360 S.E.2d 105 (1987) (\u201c[o]ur decision in the previous appeal constitutes the law of the case\u201d).\nHowever, plaintiff is on surer grounds in asserting the trial court had no authority to direct disbursement of the Hartford proceeds. An employer or its insurance carrier subrogee, St. Paul herein, is entitled to seek reimbursement under the Workers\u2019 Compensation Act from damages recovered by an employee from a third party tortfeasor. See Buckner v. City of Asheville, 113 N.C. App. 354, 358, 438 S.E.2d 467, 469, disc. review denied, 336 N.C. 602, 447 S.E.2d 385 (1994). \u201cThe amount of reimbursement, if any, and the method for seeking that reimbursement is determined by . . . N.C.G.S. \u00a7 97-10.2.\u201d Id.\nG.S. \u00a7 97-10.2 provides in relevant part:\n(f)(1) If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:\na. First to the payment of actual court costs ....\nb. Second to the payment of the fee of the attorney making settlement or obtaining judgment. . . .\nc. Third to the reimbursement of the employer for all benefits by way of compensation of medical compensation expense paid or to be paid by the employer under award of the Industrial Commission.\nd. Fourth to the payment of any amount remaining to the employee ....\nQ) Notwithstanding any other subsection in this section, in the event that a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers\u2019 Compensation Insurance Carrier, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge ... to determine the subrogation amount. . . . [T]he judge shall determine, in his discretion, the amount, if any, of the employer\u2019s lien and the amount of cost of the third-party litigation to be shared between the employee and employer. . . .\nG.S. \u00a7 97-10.2(f)(l), CD-\nUnder Subsection (f), therefore, the Commission is specifically granted exclusive authority to distribute third party proceeds subject to Subsection (j) which, when applicable, accords that authority to the Superior Court. See Buckner, 113 N.C. App. at 359, 438 S.E.2d at 470. Further, as noted earlier,\nthe two events which will trigger the authority of a judge to exercise discretion [under subsection (j)] in determining or allocating the amount of. . . disbursement are (1) a judgment insufficient to compensate the subrogation claim of the workers\u2019 compensation insurance carrier or (2) a settlement.\nLowery, 344 N.C. at 409, 474 S.E.2d at 326-27.\nAt the time of Judge Winner\u2019s order II, the judgment of Judge Gaines based upon the jury verdict in favor of Mrs. Hieb remained greater than the amount of St. Paul\u2019s lien. The parties also had not reached a settlement. Therefore, neither event \u201ctrigger[ing]\u201d the authority of the trial court to disburse the Hartford proceeds had occurred, and Judge Winner lacked authority to order such disbursements under G.S. \u00a7 97-10.2(j). See Lowery, 344 N.C. at 409-10, 474 S.E.2d at 327 (trial court had no authority for order under [G.S. \u00a7] 97-10.2Q) because of absence of either statutory event). In addition, Judge Winner\u2019s order II deviates from Judge Johnston\u2019s order directing that \u201c[a]ny payments . .. made by [Hartford] ... be disbursed subject to the provisions of [G.S. \u00a7] 97-10.2,\u201d under which disbursement by the Commission is mandated in the absence of either statutorily prescribed event \u201ctriggering\u201d the authority of the trial court.\nIn short, as we observed in Hieb III,\nthe Industrial Commission, not the superior court, has exclusive jurisdiction over distribution of the proceeds recovered from the third party tortfeasor in this case.\nHieb III, 123 N.C. App. at 66, 472 S.E.2d at 212. Accordingly, the sole mechanism for disbursement of the Hartford proceeds in the case sub judice lies with the Industrial Commission acting pursuant to G.S. \u00a7 97-10.2(f), and Judge Winner\u2019s order II directing disbursement of the Hartford proceeds was in excess of the court\u2019s authority and must be vacated.\nPlaintiffs next attack the trial court\u2019s ruling regarding counsel fees to be paid Monnett. Specifically, plaintiffs contend this Court previously addressed \u201cthe issue regarding attorneys\u2019 fees . . . [and] determined [it] to be untimely.\u201d Moreover, plaintiffs also advance the notion that because the judgment of Judge Gaines, which was not appealed, provided that \u201cMonnett is entitled to an attorney\u2019s fee of 33.33% of all amounts paid to St. Paul,\u201d Judge Winner was without authority to \u201creconsider this issue and overrule prior Superior Court orders.\u201d Plaintiffs\u2019 argument misses the mark.\nIn Hieb II, this Court wrote in pertinent part:\n[St. Paul] contends that this Court should review the award of attorney\u2019s fees to [Monnett]. ... As defendant has failed to adequately preserve these issues for appellate review, we need not address [this argument] at this juncture.\nHieb II, 121 N.C. App. at 39, 464 S.E.2d at 312. We thus specifically declined to address counsel fees in Hieb II, and as such, our opinion therein is of no effect regarding the counsel fees portion of Judge Winner\u2019s order II.\nFurther, plaintiffs place inconsistent reliance upon the judgment of Judge Gaines. On the one hand, plaintiffs assert the award of counsel fees therein as justification for disbursement of fees to Monnett and as the basis for claiming later error by Judge Winner. On the other hand, plaintiffs do not appear to view as binding the provision in the judgment of Judge Gaines that St. Paul was entitled to a lien for \u201call amounts paid or to be paid\u201d in workers\u2019 compensation to plaintiffs. As defendant aptly observes,\n[i]t is difficult to understand what basis the plaintiffs have for objecting to Judge Winner\u2019s order that simply confirms the very argument made by [Monnett] in his brief that the only body with authority to [order any disbursements of the Hartford proceeds] is the . . . Industrial Commission.\u201d\nSignificantly, the award of counsel fees by Judge Gaines was based in part upon his finding of fact that:\nan order was entered ... by the Honorable Robert P. Johnston [and] . . . [t]hat action is now on appeal to the North Carolina Court of Appeals. This Court is bound by the Order of Judge Johnston unless and until said Order is modified by the Court of Appeals or any other court of competent jurisdiction (emphasis added).\nOn appeal in Hieb I, Judge Johnston\u2019s order was indeed modified by this Court, but we did not disturb the portion thereof requiring the Hartford proceeds to \u201cbe disbursed subject to the provisions of N.C.G.S. \u00a7 97-10.2.\u201d We have held above and stated previously in Hieb III that it is Subsection (f) of G.S. \u00a7 97-10.2 which governs disbursement of the Hartford proceeds. See Hieb III, 123 N.C. App. at 66, 472 S.E.2d at 211. Therefore, \u201cthe Industrial Commission can award an attorney\u2019s fee not to exceed \u2018one third of the amount obtained or recovered of the third party.\u2019 \u201d Westmoreland v. Safe Bus, Inc., 20 N.C. App. 632, 634, 202 S.E.2d 605, 606 (1974) (quoting G.S. \u00a7 97-10.2(f)(1)(b)). However, \u201c[t]his action is within the exclusive province of the Industrial Commission, [and] a [trial] court\u2019s award of attorney\u2019s fees [is] improper.\u201d Id.\nConsistent with the directive in Judge Johnston\u2019s order that the Hartford proceeds be \u201cdisbursed subject to . . . G.S. \u00a7 97-10.2,\u201d Judge Winner properly ruled that \u201cany determination with respect to the payment of counsel fees must be made by the Industrial Commission,\u201d and that \u201cunless and until such an Order from the [Industrial Commission] is entered, the disbursement of attorneys\u2019 fees to [Monnett] was not proper.\u201d Because the judgment of Judge Gaines provided on its face that it was \u201cbound\u201d by Judge Johnston\u2019s earlier order \u201cunless and until\u201d modified on appeal, and because this Court indeed modified Judge Johnston\u2019s order, plaintiffs\u2019 reliance upon the judgment of Judge Gaines is ineffectual and Judge Winner did not err in his directive addressing counsel fees.\nPlaintiffs next assert that the trial court erred in \u201cholding [Monnett] personally liable for the repayment of judgment proceeds,\u201d citing our decision in Poore v. Swan Quarter Farms, Inc., 119 N.C. App. 546, 459 S.E.2d 52 (1995). Plaintiffs\u2019 reliance upon Poore is unavailing.\nIn Poore, we upheld the trial court\u2019s refusal to direct the plaintiffs\u2019 attorney therein to return certain rental proceeds to which the defendants were entitled. Poore, 119 N.C. App. at 548, 459 S.E.2d at 53. The funds had previously been released by the clerk of court to plaintiffs and said attorney. Id. We observed that\nplaintiffs\u2019 attorney is not a party to this action, and the trial court therefore had no authority to require him to account for the funds the plaintiffs received.\nId. at 549, 459 S.E.2d at 53.\nHowever, the circumstances sub judice stand in marked contrast. Prior to Judge Sitton\u2019s order upon which plaintiffs rely as justifying the majority of the disbursements to Monnett, the latter assured Judge Sitton by letter that:\nI am the Plaintiffs\u2019 attorney of record in this case. . . . My office routinely satisfies liens against personal injury settlement proceeds. I take full responsibility for those funds that are in my possession.\n(emphasis added).\nFurther, notwithstanding plaintiffs\u2019 argument that \u201c[t]he money was . . . distributed ... in strict compliance with the terms ... of a then valid Order of [Judge Sitton],\u201d review of the record reveals that substantial funds were disbursed by Monnett prior to Judge Sitton\u2019s order. For instance, on 29 March 1994, subsequent to the orders of Judges Johnston and Gaines and our decision in Hieb I, each providing a lien on behalf of St. Paul for all amounts of workers\u2019 compensation \u201cpaid or to be paid\u201d to plaintiff, Monnett \u201cwithdrew $142,329.61 from the certificate of deposit. . . for attorney\u2019s fees.\u201d\nIt must also be noted that the foregoing distribution occurred approximately three weeks subsequent to plaintiffs\u2019 motion before Judge Sitton to.modify that provision of the judgment of Judge Gaines pertaining to the amount of St. Paul\u2019s lien and to determine disbursement of the Hartford proceeds as between plaintiffs and St. Paul. North Carolina Rule of Professional Conduct 1.15-l(e)(2) (1998) (the Rule) provides that\nfunds belonging in part to a client or a third party and in part presently or potentially to the lawyer . . . shall be deposited into the trust account, but the portion belonging to the lawyer shall be withdrawn when the lawyer becomes entitled to the funds unless the right of the lawyer to receive the portion of the funds is disputed . . . .\u201d\nNo violation of the Rule by Monnett is suggested. Indeed, the instant record contains the 15 April 1997 no probable cause dismissal by the North Carolina State Bar of St. Paul\u2019s grievance against Monnett based upon his disbursement of the Hartford proceeds. Nonetheless, the protocol of the Rule is instructive.\nIn addition, the record indicates earlier distributions by Monnett of $2,500.00 on 23 December 1993 and $1,197.17 on 3 February 1994, both on behalf of Mr. Hieb. Cf. McMillian v. N.C. Farm Bureau Mutual Ins. Co., 125 N.C. App. 247, 255, 480 S.E.2d 437, 441 (1997), rev\u2019d on other grounds, 347 N.C. 560, 495 S.E.2d 352 (1998) (loss of consortium judgment not recoverable where judgment by primary plaintiff exhausts policy coverage). Further, on 26 July 1994, Monnett paid Mrs. Hieb $10,000. Finally, on 28 July 1994, the filing date of Judge Sitton\u2019s order, Monnett disbursed the remaining funds, including two additional checks payable to Monnett totaling $98,895.86, bringing the approximate total of counsel fees received by Monnett to $241,225.47. See, e.g., G.S. \u00a7 97~10.2(f)(l)(b) (fee of attorney representing person obtaining judgment shall not exceed one-third of amount recovered of third party); see also Hardy v. Brantley Construction Co. and Wells v. Brantley Construction Co., 87 N.C. App. 562, 567, 361 S.E.2d 748, 751 (1987), rev\u2019d on other grounds, 322 N.C. 106, 366 S.E.2d 485 (1988) (under N.C.G.S. \u00a7 97-90, attorney\u2019s fee taken from employee\u2019s share of judgment may not exceed one-third of amount recovered).\nIn holding Monnett personally liable for the return of disbursed Hartford proceeds, the court in Judge Winner\u2019s order II reasoned:\n[d] espite [Monnett\u2019s] knowledge that two prior Superior Court Judges had ordered that St. Paul had a lien against all proceeds, and that St. Paul had specifically requested that no disbursement of these proceeds be made which were subject to St. Paul\u2019s lien, [Monnett] issued disbursement of these funds. Considering the totality of the circumstances, the equities involved, the notice to [Monnett] of the dispute over these funds, and the conscious choice of [Monnett] to disburse the funds notwithstanding the prior Orders of this Court and the claims by St. Paul, the Court finds that [Monnett should be held personally responsible].\nIn light of our holding herein requiring a Commission order prior to disbursement of counsel fees, the timing of Monnett\u2019s actual disbursements of the Hartford proceeds, and Monnett\u2019s assurance to Judge Sitton of \u201cfull responsibility\u201d for the Hartford proceeds, we cannot say the trial court erred in its directive that Monnett be \u201cpersonally liable for repayment of [the Hartford] proceeds.\u201d Plaintiffs\u2019 challenge to that portion of Judge Winner\u2019s order II is thus unfounded.\nFinally, plaintiffs except to the amount of monies ordered returned to the Clerk. Plaintiffs maintain the trial court improperly assessed interest thereon and submit the court\u2019s failure to account for certain tax and judgment liens was in error. We agree in part.\nIn support of their argument, plaintiffs cite our Supreme Court\u2019s decision in Devereaux v. Burgwin, 33 N.C. 490 (1850) and assert \u201cthat interest, as interest, is allowed when expressly given by statute or by express or implied agreement between the parties.\u201d See id. at 494. In this regard, we note that prejudgment interest is allowable pursuant to N.C.G.S. \u00a7 24-5 (1991) from the \u201cdate of the breach\u201d in suits for breach of contract, and in other actions \u201cfrom the date the action is instituted\u201d upon that amount \u201cdesignated by the fact finder as compensatory damages.\u201d G.S. \u00a7 24-5 (a)(b). G.S. \u00a7 24-5 also provides for post-judgment interest on judgments for money damages until the judgment is paid. See Custom Molders, Inc. v. American Yard Products, Inc., 342 N.C. 133, 138, 463 S.E.2d 199, 202 (1995).\nUnder the specific facts herein, St. Paul\u2019s workers\u2019 compensation lien on the Hartford proceeds is neither derived from an action in contract nor from an amount \u201cdesignated by the fact-finder as compensatory damages.\u201d See G.S. \u00a7 24-5; cf. Bartell v. Sawyer, 132 N.C. App. 484, 487, 512 S.E.2d 93, 95 (1999) (G.S. \u00a7 97-10.2(f)(l)(c) provides for reimbursement to defendant insurance company \u201cfor all benefits . . . paid or to be paid by the employer under award of the Industrial Commission\u201d and \u201cdoes not state that [insurance company is] entitled to any prejudgment interest\u201d).\nMoreover, St. Paul\u2019s lien does not represent money damages so as to justify an award of post-judgment interest. See Custom Molders, 342 N.C. at 138, 463 S.E.2d at 202. There being no statutory authority sustaining an award of interest sub judice nor any \u201cexpress or implied agreement\u201d between the parties as to payment of interest, see Devereaux, 33 N.C. at 495, the award of interest in Judge Winner\u2019s order II must be vacated.\nPlaintiffs also assert error in computation of the amount to be returned based upon the trial court\u2019s failure to account for certain tax and judgment liens allegedly having priority over the lien of St. Paul. However, we note that other than copies of checks and Monnett\u2019s statement in his affidavit that said checks were paid toward the alleged liens, the record contains no evidence or device for discerning the respective priority thereof over the lien of St. Paul. Moreover, plaintiffs cite no authority for this argument, see N.C.R. App. P. 28(b)(5) (\u201cassignments of error... in support of which no reason or argument is stated or authority cited, will be taken as abandoned\u201d), and as appellants herein, bear the burden of establishing the record on appeal. See Mcleod v. Faust, 92 N.C. App. 370, 371, 374 S.E.2d 417, 418 (1988). Plaintiffs\u2019 argument in this regard is thus deemed abandoned.\nIn sum, Judge Winner\u2019s order II is affirmed 1) as it pertains to St. Paul\u2019s entitlement to a lien referencing the Hartford proceeds \u201cfor all payments made and to be made\u201d to Mrs. Hieb; 2) in disallowing counsel fees to Monnett; and 3) in holding Monnett personally liable for repayment of the Hartford proceeds. However, those portions of Judge Winner\u2019s order II1) requiring disbursement of the Hartford proceeds; and 2) computing and awarding interest, are vacated. Further, this case is remanded with the instruction that the Superior Court remand to the Industrial Commission for disbursement proceedings and award of counsel fees pursuant to G.S. \u00a7 97-10.2.\nAffirmed in part, vacated in part, and remanded with instructions.\nJudges McGEE and HORTON concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Charles G. Monnett, III, for plaintiffs-appellants Gabriella Murray Hieb and Robert Nelson Hieb.", "Poyner & Spruill, L.L.P., by Cecil W. Harrison, Jr., and Laura B. Russell, for plaintiff-appellant Charles G. Monnett, III.", "Dean & Gibson, by Rodney Dean, for defendant-appellee St. Paul Fire and Marine Company." ], "corrections": "", "head_matter": "GABRIELLA MURRAY HIEB and ROBERT NELSON HIEB, Plaintiffs v. WOODROW LOWERY, Defendant\nNo. COA98-102\n(Filed 6 July 1999)\n1. Workers\u2019 Compensation\u2014 lien on UIM benefits \u2014 motion for accounting \u2014 jurisdiction of trial court\nThe trial court had jurisdiction under N.C.G.S. \u00a7 1-298 to determine a workers\u2019 compensation carrier\u2019s motion for an accounting of judgment proceeds paid by plaintiff\u2019s UIM carrier and disbursed by the clerk of court, although one judge\u2019s order setting the amount of the workers\u2019 compensation lien was reversed on appeal, where the trial court exercised jurisdiction to effect a prior order and appellate rulings that the compensation carrier was entitled to a lien against the UIM proceeds for \u201call amounts paid or to be paid\u201d to plaintiff as workers\u2019 compensation benefits.\n2. Appeal and Error\u2014 law of the case \u2014 workers\u2019 compensation lien\nIt is the law of this case that a workers\u2019 compensation carrier is entitled to a compensation lien on judgment proceeds in the amount of the total workers\u2019 compensation \u201cpaid or to be paid\u201d to the injured employee where both the Supreme Court and the Court of Appeals held in prior appeals that the carrier was enti-tied to this lien pursuant to an unappealed superior court judgment in the employee\u2019s action against the tortfeasor.\n3. Workers\u2019 Compensation\u2014 judgment proceeds \u2014 UIM payment \u2014 distribution\u2014jurisdiction in Industrial Commission\nThe Industrial Commission, rather than the superior court, had exclusive jurisdiction over the distribution of proceeds recovered by an injured employee from a third-party tortfeasor and paid pursuant to a UIM policy where the judgment exceeded the amount of the workers\u2019 compensation carrier\u2019s judgment lien and the parties did not reach a settlement. N.C.G.S. \u00a7 97-10.2(f).\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 judgment proceeds \u2014 jurisdiction in Industrial Commission\nAn award of attorney fees from judgment proceeds recovered by an injured employee from a third-party tortfeasor was within the exclusive jurisdiction of the Industrial Commission, and an award of attorney fees by the trial court was improper.\n5. Workers\u2019 Compensation\u2014 judgment proceeds \u2014 premature distribution by attorney \u2014 personal liability of attorney\nThe trial court did not err in holding the attorney who represented a workers\u2019 compensation claimant in an action against the third-party tortfeasor personally liable for the repayment of judgment proceeds the attorney prematurely disbursed from his trust account to his clients and himself where the attorney assured a judge that he would take full responsibility for funds in his possession; the attorney knew that, pursuant to prior orders and appellate decisions, the workers\u2019 compensation carrier had a lien on the proceeds for compensation \u201cpaid or to be paid\u201d to claimant and that the amount of the lien was in dispute, and no Industrial Commission order for counsel fees had been entered.\n6. Interest\u2014 workers\u2019 compensation lien \u2014 prejudgment and post-judgment interest\nA workers\u2019 compensation carrier\u2019s lien on judgment proceeds from the claimant\u2019s action against the third-party tortfeasor is neither derived from an action in contract nor from an amount \u201cdesignated by the fact finder as compensatory damages\u201d within the meaning of N.C.G.S. \u00a7 24-5; therefore, the carrier was not entitled to prejudgment interest on the amount of its lien. Nor does the lien represent money damages so as to justify an award of post-judgment interest.\nAppeal by plaintiffs Gabriella Murray Hieb, Robert Nelson Hieb, and Charles G. Monnett, III, from orders filed 5 May 1997 and 29 October 1997 by Judge Dennis J. Winner in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 September 1998.\nCharles G. Monnett, III, for plaintiffs-appellants Gabriella Murray Hieb and Robert Nelson Hieb.\nPoyner & Spruill, L.L.P., by Cecil W. Harrison, Jr., and Laura B. Russell, for plaintiff-appellant Charles G. Monnett, III.\nDean & Gibson, by Rodney Dean, for defendant-appellee St. Paul Fire and Marine Company." }, "file_name": "0001-01", "first_page_order": 33, "last_page_order": 52 }