{ "id": 4078985, "name": "NEXSEN PRUET, PLLC, Plaintiff v. KAREN CARTER MARTIN and MARTIN COPE LIVINGSTON III, personal representatives of the Estate of John Van Lindley, Defendants", "name_abbreviation": "Nexsen Pruet, PLLC v. Martin", "decision_date": "2011-06-21", "docket_number": "No. COA10-848", "first_page": "680", "last_page": "684", "citations": [ { "type": "official", "cite": "212 N.C. App. 680" } ], "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": "594 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631267 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/594/0044-01" ] }, { "cite": "378 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528114 ], "year": 1989, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "381", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "354", "parenthetical": "citation omitted" }, { "page": "353" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "337", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "163 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918089 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0397-01" ] } ], "analysis": { "cardinality": 457, "char_count": 8749, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1298419328694453 }, "sha256": "fd916ce6827f1b8f69159ee10a7c243585c7aede8cd0fc8ed216becea134c31b", "simhash": "1:197bed60145d865b", "word_count": 1453 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and ERVIN concur." ], "parties": [ "NEXSEN PRUET, PLLC, Plaintiff v. KAREN CARTER MARTIN and MARTIN COPE LIVINGSTON III, personal representatives of the Estate of John Van Lindley, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nNexsen Pruet, PLLC (plaintiff or Nexsen Pruet), appeals from an order granting a motion by Karen Carter Martin and Martin Cope Livingston III (defendants), for summary judgment. After careful review, we affirm.\nI. Background\nPlaintiff, a law firm, brought this suit to recover legal fees in the amount of $150,258.54 due from the estate of John Van Lindley; defendants are the personal representatives of the estate. The facts of the case underlying this appeal can be found at Livingston v. Adams Kleemeier Hagan Hannah & Fonts, P.L.L.C., 163 N.C. App. 397, 594 S.E.2d 44 (2004); below are the facts relevant to the current appeal.\nThe co-executors of the Estate of John Van Lindley (Estate) filed three separate petitions asking the Guilford County Clerk of Superior Court (Clerk) to approve payment of attorney\u2019s fees and out-of-pocket expenses for the Estate\u2019s law firm, Adams Kleemeier Hagan Hannah & Fouts (the law firm). On 8 October 1991, 12 March 1992, and 8 January 1993, the Clerk entered three separate orders for the payment of those fees and expenses. The last order approved attorney\u2019s fees and expenses through 30 September 1992.\nOn 29 May 2002, one of the co-executors, Walter Hannah, petitioned the superior court for an additional payment of counsel fees and expenses for services rendered since 30 September 1992. The petition stated that there was an unpaid balance of $150,258.54 due on the 1991, 1992, and 1993 orders and asked for the Clerk\u2019s approval of an additional amount of $175,000.00 for services rendered and out-of-pocket expenses incurred by the law firm after 30 September 1992. The petition also asked for the Clerk\u2019s approval of a promissory note and other collateral security agreements that had been executed by the Estate to secure the payment of attorney\u2019s fees and expenses. While the petition was pending, on 29 January 2004, the successor firm, Nexsen Pruet, was substituted as a party for the original law firm of Adams Kleemeier Hagan Hannah & Fouts.\nFrom March to June of 2005, the Clerk entered four orders ruling on all pending matters raised by the co-executor\u2019s petition. In sequence, the orders are:\n1. Order denying motions of Virginia L. Livingston to modify prior orders and to dismiss petition as barred by statute of limitations,\n2. Order allowing co-executors to file special proceeding to sell land,\n3. Order denying approval of additional $175,000.00 in attorney\u2019s fees and costs,\n4. Order denying Virginia L. Livingston\u2019s request that the estate be allowed a credit of $43,961.20 against payments of its attorney\u2019s fees.\nIn the order at issue on this appeal (number 4 in the above list), the Clerk denied the credit of $43,961.20 requested by the Estate\u2019s heirs and awarded Nexsen Pruet the unpaid principal balance of $150,258.54 due in attorney\u2019s fees and expenses.\nAll four orders were appealed, first to the superior court of Guilford County and then to this Court. The superior court\u2019s orders denying recovery of the additional $175,000.00 in fees and denying the request for a $43,961.20 credit against the approved attomeys\u2019s fees amount were upheld by this Court on 7 August 2007. See In re Estate of Lindley, 2007 N.C. App. LEXIS 1774 (N.C. Ct. App., Aug. 7, 2007).\nThe principal balance due to Nexsen Pruet remained unpaid until 27 October 2009 when Nexsen Pruet received a check for $150,258.54 dated 26 October 2009 paid on behalf of the Estate.\nOn 16 December 2009, Nexsen Pruet filed its complaint in the present action in Guilford County Superior Court. Nexsen Pruet seeks post-judgment legal interest on the principal balance of $150,258.54 at the legal rate of eight percent per annum from the date of entry of the order of 2 June 2005 until 27 October 2009, when the debt of the Estate was paid.\nThe Estate responded to Nexsen Pruet\u2019s complaint with a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Rules of Civil Procedure and with other motions. Nexsen Pruet moved for summary judgment on 12 March 2010. The Estate\u2019s motion to dismiss for failure to state a claim was properly treated as a cross-motion for summary judgment by virtue of the trial court\u2019s consideration of matters outside the pleadings. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (2009).\nOn 21 May 2010, the superior court denied Nexsen Pruet\u2019s motion for summary judgment and granted the Estate\u2019s motion for summary judgment. Nexsen Pruet filed notice of appeal on 26 May 2010.\nII. Motion to dismiss\nPlaintiff is appealing the grant of defendants\u2019 motion for summary judgment and denial of its motion for the same. We review a trial court\u2019s grant of summary judgment de novo. Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citation omitted). \u201cSummary judgment is appropriate \u2018if 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.\u2019 \u201d Id. at 337, 678 S.E.2d at 353 (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009)). We draw all inferences against the movant. Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (citation omitted).\nIII. Interest on the judgment\nThe order on summary judgment stated as follows:\nThe Court concludes that:\na. the Plaintiff\u2019s action is one for interest only on attorney\u2019s fees awarded by the Clerk of Court of Superior Court, acting as ex officio judge of probate, as reasonable expenses of the Estate;\nb. all attorney [\u2019s] fees ordered by the Clerk of Court to be paid by the Estate ... have been paid in full by the Estate.\nc. An award of attorney\u2019s fees is considered] costs, which do not bear interest.\nd. Defendants are entitled to summary judgment on all Plaintiffs claims.\nPlaintiff argues that these conclusions are in error because the Clerk\u2019s order of 2 June 2005 was a judgment within the meaning of N.C. Gen. Stat. \u00a7 24-5(b) and, thus, its attorney\u2019s fees are properly deemed compensatory damages, not costs. That statute states:\nIn an action other than contract, any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced until the judgment is satisfied. Any other portion of a money judgment in an action other than contract, except the costs, bears interest from the date of entry of judgment under G.S. 1A-1, Rule 58, until the judgment is satisfied. Interest on an award in an action other than contract shall be at the legal rate.\nN.C. Gen. Stat. \u00a7 24-5(b) (2009). Plaintiff argues that the trial court should have ruled that the attorney\u2019s fees were compensatory damages and thus bore interest from the date of the judgment forward. We disagree, and hold that the trial court properly categorized the fees as costs, which are specifically excepted from the interest provisions of the statute.\nIn In re Estate of Sturman, this Court specifically noted that the superior court \u201cis authorized to tax as costs . . . counsel fees ... \u2018as provided by law.\u2019 \u201d 93 N.C. App. 473, 476, 378 S.E.2d 204, 206 (1989). N.C. Gen. Stat. \u00a7 7A-307, \u201cCost in administration of estates[,]\u201d specifically provides for such recovery of attorney\u2019s fees, and, per N.C. Gen. Stat. \u00a7 28A-23-4, the clerk of superior court has the discretion to allow attorney\u2019s fees when the attorney is functioning as the representative of an estate. N.C. Gen. Stat. \u00a7 7A-307(c)(2) (2009); N.C. Gen. Stat. \u00a7 28A-23-4 (2009). Taken together, these statutes clearly support the concept underpinning the trial court\u2019s ruling: that the superior court may tax as costs attorney\u2019s fees incurred when the attorney is the representative of the estate administering its distribution.\nPlaintiff\u2019s argument is not supported by the law, and as such is overruled.\nAffirmed.\nJudges STEELMAN and ERVIN concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Barron & Berry, L.L.P., by Vance Barron, Jr., for plaintiff.", "Hendrick Bryant & Nerhood, LLP, by Matthew H. Bryant, for defendants." ], "corrections": "", "head_matter": "NEXSEN PRUET, PLLC, Plaintiff v. KAREN CARTER MARTIN and MARTIN COPE LIVINGSTON III, personal representatives of the Estate of John Van Lindley, Defendants\nNo. COA10-848\n(Filed 21 June 2011)\nAttorney Fees\u2014 prejudgment interest \u2014 costs\nThe trial court did not err by granting summary judgment in favor of defendants on the issue of prejudgment interest for legal fees recovered from an estate. The trial court properly characterized the attorney fees as costs, which were specifically excepted from the interest provisions of N.C.G.S. \u00a7 24-5(b).\nAppeal by plaintiff from order entered 21 May 2010 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 12 January 2011.\nBarron & Berry, L.L.P., by Vance Barron, Jr., for plaintiff.\nHendrick Bryant & Nerhood, LLP, by Matthew H. Bryant, for defendants." }, "file_name": "0680-01", "first_page_order": 690, "last_page_order": 694 }