{ "id": 8957658, "name": "ROBINSON & LAWING, L.L.P., Plaintiff v. CYNTHIA B. SAMS, Defendant", "name_abbreviation": "Lawing v. Sams", "decision_date": "2003-11-18", "docket_number": "No. COA03-76", "first_page": "338", "last_page": "341", "citations": [ { "type": "official", "cite": "161 N.C. App. 338" } ], "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": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736-37" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "726-27" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "241 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "125", "parenthetical": "stating \"absent a request for findings of fact to support his decision on a motion, the judge is not required to find facts . . . and it is presumed that the Judge, upon proper evidence, found facts to support his judgment\"" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548789 ], "year": 1978, "pin_cites": [ { "page": "269", "parenthetical": "stating \"absent a request for findings of fact to support his decision on a motion, the judge is not required to find facts . . . and it is presumed that the Judge, upon proper evidence, found facts to support his judgment\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0267-01" ] }, { "cite": "420 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "430" }, { "page": "429" } ], "opinion_index": 0 }, { "cite": "332 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503935 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "295" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0288-01" ] } ], "analysis": { "cardinality": 410, "char_count": 7931, "ocr_confidence": 0.778, "pagerank": { "raw": 6.553285487460147e-08, "percentile": 0.40171415399121724 }, "sha256": "be726907858f7acbd3905b94672a9855391b8ab66ee20dd33a6bad04641d6bfb", "simhash": "1:a9f396c006964333", "word_count": 1254 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and ELMORE concur." ], "parties": [ "ROBINSON & LAWING, L.L.P., Plaintiff v. CYNTHIA B. SAMS, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant Cynthia B. Sams argues on appeal that the trial court erroneously disqualified her attorney from representing her because the evidence did not show that her attorney was a necessary and material witness for her case, and the trial court made no findings of fact to support its decision. After careful review, we conclude the trial court did not abuse its discretion.\nThe pertinent facts indicate Robinson & Lawing, L.L.P, a law firm, represented Ms. Sams in a domestic action from October 1997 to July 1998. Thereafter, from July 1998 to October 2000, several different attorneys represented Ms. Sams, including Russ Kornegay, J. Calvin Cunningham, Lori Watson Berger, and the Causey Law firm. From November 2000 until July 16, 2001, William J. O\u2019Malley represented Ms. Sams in her domestic action.\nThis matter arises from an action by Robinson & Lawing to recover legal fees ($30,229.69 plus interest) from Ms. Sams. During a July 2002 deposition, Ms. Sams stated that she had discussed Robinson & Lawing\u2019s representation with Mr. O\u2019Malley prior to his representation in this matter. Based upon those statements, Robinson & Lawing moved to disqualify Ms. Sams\u2019 counsel. This appeal followed from the trial court\u2019s order disqualifying Mr. O\u2019Malley from representing Ms. Sams.\nOn appeal, Ms. Sams first contends the trial court erroneously disqualified her defense counsel because Robinson & Lawing failed to show her defense counsel was a necessary and material witness in her case. We disagree.\n\u201cDecisions regarding whether to disqualify counsel are within the discretion of the trial judge and, absent an abuse of discretion, a trial judge\u2019s ruling on a motion to disqualify will not be disturbed on appeal.\u201d Travco Hotels v. Piedmont Natural Gas Go., 332 N.C. 288, 295, 420 S.E.2d 426, 430 (1992).\nIn this case, the nature and value of Robinson & Lawing\u2019s legal services are a contested issue. Indeed, as an affirmative defense, Ms. Sams alleged \u201cRobinson & Lawing did not provide any value or benefit for many of the charges it claims for services rendered, and Ms. Sams asserts lack of consideration as a defense to the debt.\u201d\nDuring Ms. Sams\u2019 deposition, her testimony indicated that her attorney, Mr. O\u2019Malley, may have relevant information regarding the nature and value of Robinson & Lawing\u2019s legal fees obtained prior to his representation of Ms. Sams in this case. According to Ms. Sams: (1) she became reacquainted with Mr. O\u2019Malley in December 1998; (2) Ms. Sams and Mr. O\u2019Malley married in August 2001; (3) between December 1998 and August 2001, she told Mr. O\u2019Malley that Mr. Grantham, an attorney in Robinson & Lawing\u2019s firm, quit and that he had not done a very good job; (4) she showed Mr. O\u2019Malley correspondence between Robinson & Lawing and Ms. Sams; and (5) she asserted attorney-client privilege as to other complaints she made to Mr. O\u2019Malley regarding Robinson & Lawing\u2019s provision of legal services.\nShortly after the deposition, Robinson & Lawing moved to disqualify Mr. O\u2019Malley based upon Revised Rule of Professional \u2022Conduct 3.7 which in pertinent part states:\n(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:\n(1) the testimony relates to an uncontested issue;\n(2) the testimony relates to the nature and value of legal services rendered in the case; or\n(3 disqualification of the lawyer would work substantial hardship on the client.\nIn its motion, Robinson & Lawing recounted Ms. Sams\u2019 deposition testimony, indicated it considered defense counsel a necessary and material witness, and stated its intention to call defense counsel as a witness during the trial. The trial court\u2019s order disqualifying counsel set a date for defense counsel\u2019s deposition, continued the matter for an additional sixty days from the trial date to allow Ms. Sams to retain replacement counsel, and stated that defense counsel could move for reconsideration of the disqualification order after the deposition. Accordingly, on these facts, we conclude the trial court did not abu$e its discretion in disqualifying counsel.\nMs. Sams also argues the trial court\u2019s order should be vacated for want of findings of fact. Under N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) (2001), \u201cfindings of fact and conclusions of law are necessary on decisions of any motion . . . only when requested by a party and as provided by Rule 41(b).\u201d See also Allen v. Wachovia Bank & Trust Co., N.A., 35 N.C. App. 267, 269, 241 S.E.2d 123, 125 (1978) (stating \u201cabsent a request for findings of fact to support his decision on a motion, the judge is not required to find facts . . . and it is presumed that the Judge, upon proper evidence, found facts to support his judgment\u201d). Our review of the transcript indicates neither party requested the trial court render findings of fact or conclusions of law. Accordingly, we find this argument to be without merit.\nAffirmed.\nJudges TIMMONS-GOODSON and ELMORE concur.\n. Mr. Cunningham and Ms. Berger filed a separate action against Ms. Sams for attorney fees. An appeal arising out of the disqualification of Mr. O\u2019Malley in that matter presents similar issues as this appeal. See Cunningham v. Sams, \u2014 N.C. App. \u2014, -S.E.2d-(2003) (COA02-1623) (Filed 18 November 2004)\n. In August 2001, Mr. O\u2019Malley and Ms. Sams married.\n3. Although interlocutory, an order disqualifying counsel is immediately appeal-able because it affects a substantial right. See Goldston v. American Motors Corp., 326 N.C. 723, 726-27, 392 S.E.2d 735, 736-37 (1990); see also Travco Hotels, 332 N.C. at 292, 420 S.E.2d at 429 (stating \u201cthe granting of a motion to disqualify counsel, unlike a denial of the motion, has immediate and irreparable consequences for both the disqualified attorney and the individual who hired the attorney. The attorney is irreparably deprived of exercising his right to represent a client. The client, likewise, is irreparably deprived of exercising the right to be represented by counsel of the client\u2019s choice. Neither deprivation can be adequately addressed by a later appeal of a final judgment adverse to the client\u201d).\n. Notwithstanding her assertion of privilege, Mr. O\u2019Malley did not file his Notice of Appearance in this matter until January 2002, several months after the Complaint was filed.\nMs. Sams does not argue any of the exceptions to Rule 3.7 are applicable.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Hahn & Chastain, P.A., by William J. O\u2019Malley, for defendant.", "Robinson & Lawing, L.L.P, by James R. Theuer, for plaintiff." ], "corrections": "", "head_matter": "ROBINSON & LAWING, L.L.P., Plaintiff v. CYNTHIA B. SAMS, Defendant\nNo. COA03-76\n(Filed 18 November 2003)\n1. Appeal and Error\u2014 appealability \u2014 order disqualifying counsel \u2014 substantial right\nAn order disqualifying counsel is immediately appealable because it affects a substantial right.\n2. Attorneys\u2014 disqualification \u2014 material witness\nA disqualification of defendant\u2019s counsel was not an abuse of discretion in an action by a prior attorney to recover fees for representation in a domestic action because the evidence showed that defendant\u2019s attorney was a necessary and material witness in her case where defendant alleged that plaintiff did not provide any value or benefit for many of the charges claimed for services rendered; the nature and value of plaintiff\u2019s legal services were a contested issue; and defendant\u2019s deposition testimony indicated that her present attorney may have relevant information regarding the nature and value of plaintiff\u2019s legal fees obtained prior to his representation of defendant. Rule of Professional Conduct 3.7.\n3. Civil Procedure\u2014 findings \u2014 not requested, not required\nAn order disqualifying counsel was not vacated for lack of findings where neither party requested findings of fact or conclusions of law.\nAppeal by defendant from order entered 21 August 2002 by Judge William Z. Wood, Jr., Superior Court, Forsyth County. Heard in the Court of Appeals 14 October 2003.\nHahn & Chastain, P.A., by William J. O\u2019Malley, for defendant.\nRobinson & Lawing, L.L.P, by James R. Theuer, for plaintiff." }, "file_name": "0338-01", "first_page_order": 368, "last_page_order": 371 }