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  "name": "RICHARD M. BOOHER and NANCY ANN BROWN v. WILLIAM C. FRUE, RONALD K. PAYNE and MICHAEL Y. SAUNDERS",
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    "judges": [
      "Judges Wells and Greene concur."
    ],
    "parties": [
      "RICHARD M. BOOHER and NANCY ANN BROWN v. WILLIAM C. FRUE, RONALD K. PAYNE and MICHAEL Y. SAUNDERS"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nThe sole question here is whether the court erred in granting defendant Payne\u2019s motion for summary judgment. Under G.S. 1A-1, Rule 56(c), defendant is entitled to summary judgment if the record shows \u201cthat there is no genuine issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law.\u201d \u201cIn ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party.\u201d Hinson v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986). After careful review of the record we reverse the entry of summary judgment in favor of Payne and remand for trial.\nThe relationship between attorney and client is a fiduciary relationship. The existence of a fiduciary relationship and its breach are the bases for plaintiffs\u2019 claims of constructive fraud (recovery of actual damages) and constructive trust (recovery for unjust enrichment or restitution). The question here is whether there is a genuine issue of fact regarding the existence of an attorney-client relationship between plaintiffs and Payne at the time the referral fee arrangement was made. Defendant Payne contends there is no attorney-client relationship with Booher or Brown and points to plaintiffs\u2019 depositions for support.\n\u201c[T]he relation of attorney and client may be implied from the conduct of the parties, and is not dependent on the payment of a fee, nor upon the execution of a formal contract. . . . The dispositive question . . . [is] whether defendant] [attorney\u2019s] conduct was such that an attorney-client relationship could reasonably be inferred.\u201d North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325, cert. denied, 314 N.C. 117, 332 S.E.2d 482 (1985) (citations omitted). Payne argues that the plaintiffs\u2019 depositions reveal a total disavowal of any confidential or fiduciary relationship between plaintiffs and Payne and that plaintiffs are bound by their testimony. See Woods v. Smith, 297 N.C. 363, 255 S.E.2d 174 (1979); Cogdill v. Scates, 290 N.C. 31, 224 S.E.2d 604 (1976). Payne\u2019s reliance on the cited cases is misplaced.\nIn Woods, the Supreme Court stated that \u201ca party\u2019s statements, given in a deposition or at trial of the case, are to be treated as evidential admissions rather than as judicial admissions.\u201d Woods, 297 N.C. at 373-74, 255 S.E.2d at 181. The Court went on to state that\nwhen a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict. Two exceptions to this general rule should be noted, however. First, when a party gives unequivocal, adverse testimony under factual circumstances such as were present in Cogdill, his statements should be treated as binding judicial admissions rather than as evidential admissions. Second, when a party gives adverse testimony, and there is insufficient evidence to the contrary presented to support the allegations of his complaint, summary judgment or a directed verdict would in most instances be properly granted against him.\nId. at 374, 255 S.E.2d at 181 (emphasis in original). On the record before us, because neither of the two exceptions apply, we conclude that summary judgment in favor of Payne was improperly entered.\nFirst, the testimony here is unlike that in Cogdill. In Cogdill the plaintiff brought suit against her husband and a third party, alleging that defendants were concurrently negligent in their operation of motor vehicles. Plaintiff alleged that her husband failed to keep a proper lookout, drove at excessive speed, suddenly made a left turn across a highway without signaling and that he drove while under the influence of alcohol. At trial plaintiff testified that at the time of the collision her husband\u2019s car was in the correct lane, that he was waiting to turn left and that he had signaled his intention to turn left. Plaintiff also recanted her allegations about failing to keep a proper lookout, driving while intoxicated and driving at an excessive speed. The Supreme Court stated that plaintiff\u2019s testimony on \u201cconcrete facts\u201d was \u201cdeliberate, unequivocal and repeated.\u201d Cogdill, 290 N.C. at 43, 224 S.E.2d at 611. When \u201ca plaintiffs own testimony has equivocally repudiated the material allegations of his complaint,\u201d the trial court should grant defendant\u2019s motion for directed verdict. Id. at 44, 224 S.E.2d at 611. Unlike the testimony in Cogdill, plaintiffs\u2019 testimony here was not on \u201cconcrete facts\u201d but was in response to conclusory questions regarding legal issues. Although plaintiff Brown stated that she had \u201cnever been told anything about Mr. Payne\u2019s role\u201d and thought that Frue was just a friend of Booher\u2019s, Frue\u2019s deposition reveals that he was aware of Ms. Brown\u2019s interest and her reliance on Booher to protect their concurrent interests in their son\u2019s estate.\nSecond, there is sufficient evidence, contrary to plaintiffs\u2019 depositions, to support the plaintiffs\u2019 allegations. The depositions of Frue and Payne tend to show that they traveled to Texas with Booher to help him retain Texas legal counsel and that they had done some work on the case prior to leaving Asheville. Additionally, Booher\u2019s deposition contains statements regarding his expectations arising from the defendants\u2019 activities while in Texas. Booher testified that he thought Frue and Payne were negotiating with Saunders for the lowest possible fee for him and that he had no knowledge of the arrangement to split the' fee between the attorneys. These statements raise a genuine issue whether Payne was working as an attorney for plaintiffs on the trip to Texas.\nFor the reasons stated, the entry of summary judgment in favor of Payne is reversed and the cause is remanded for trial.\nReversed and remanded.\nJudges Wells and Greene concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Kennedy Covington Lobdell & Hickman, by James E. Walker and Alice Carmichael Richey, for plaintiff-appellants.",
      "Ronald W. Howell for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "RICHARD M. BOOHER and NANCY ANN BROWN v. WILLIAM C. FRUE, RONALD K. PAYNE and MICHAEL Y. SAUNDERS\nNo. 8928SC1042\n(Filed 5 June 1990)\nAttorneys at Law \u00a7 57 (NCI4th)\u2014 fee splitting \u2014 summary judgment for defendant \u2014 improperly entered\nThe trial court erred by entering summary judgment in favor of defendant Payne in an action arising from a fee-splitting agreement between North Carolina attorneys and a Texas attorney where there were statements which raised a genuine issue as to whether defendant Payne was working as an attorney for plaintiffs on the trip to Texas. Although defendant Payne argued that plaintiffs\u2019 depositions reveal a total disavowal of any confidential or fiduciary relationship between plaintiffs and defendant Payne and that plaintiffs are bound by their testimony, plaintiffs\u2019 testimony here was not on concrete facts but was in response to conclusory questions regarding legal issues.\nAm Jur 2d, Attorneys at Law \u00a7\u00a7 244.8, 247, 302, 303.\nAPPEAL by plaintiffs from judgment entered 5 October 1988 by Judge Robert D. Lewis in BUNCOMBE County Superior Court. Heard in the Court of Appeals 5 April 1990.\nPlaintiffs appeal from the entry of summary judgment in favor of defendant Ronald K. Payne (Payne). This case and case number 8928SC1116 arose from the same series of transactions. In an earlier appeal in this case we reversed the trial court\u2019s dismissal of plaintiffs\u2019 action for failure to state a claim and remanded for trial. See Booher v. Frue, 86 N.C. App. 390, 358 S.E.2d 127 (1987), aff\u2019d, 321 N.C. 590, 364 S.E.2d 141 (1988). This appeal is from a summary judgment order in favor of defendant Payne. In this case, plaintiffs sued defendant attorneys to recover money paid to them by a Texas lawyer under an attorney\u2019s fee referral arrangement allegedly entered into among the lawyers without plaintiffs\u2019 knowledge.\nPlaintiffs\u2019 son was killed in an accident in Texas. Plaintiff Booher planned to fly to Texas to secure legal counsel to handle the claims arising from his son\u2019s death. William C. Frue (Frue), an Asheville attorney, agreed with Booher to accompany him to Texas and to assist in hiring Texas counsel. At Frue\u2019s invitation, Payne, another Asheville attorney, arrived with Frue at the Asheville airport on the morning Booher and Frue had arranged to leave for Texas. Booher mistakenly assumed Payne was Frue\u2019s partner. Booher, Frue, Payne and one of Booher\u2019s sons traveled together in a plane Booher had borrowed (Booher is a pilot) and initially conferred with the Houston firm of Hutcheson & Grundy (H&G) which handled the probate matters for plaintiffs\u2019 son\u2019s estate. H&G also arranged for Booher, Frue and Payne to meet with Houston attorney Michael K. Saunders (Saunders) regarding all other claims arising from the son\u2019s death. Frue and Payne negotiated a fee arrangement between Booher and Saunders whereby Saunders was to receive V3 of any recovery on the life insurance and wrongful death claims and V4 of any recovery for the workers\u2019 compensation claim. Frue and Payne, allegedly unknown to plaintiffs, negotiated a referral fee with Saunders whereby they would receive lk of Saunders\u2019 total fees.\nPlaintiffs brought this action to recover the referral fees paid to Frue and Payne, alleging that defendants\u2019 agreement with Saunders was in breach of their fiduciary duty to plaintiffs. Saunders was made a party defendant under Rule 19(a) of the North Carolina Rules of Civil Procedure. The trial court granted Payne\u2019s motion for summary judgment. (The case against Frue went to the jury which returned a verdict in plaintiffs\u2019 favor. Defendant Frue\u2019s appeal from that judgment is case number 8928SC1116.) Plaintiffs appeal the entry of summary judgment in favor of Payne.\nKennedy Covington Lobdell & Hickman, by James E. Walker and Alice Carmichael Richey, for plaintiff-appellants.\nRonald W. Howell for defendant-appellee."
  },
  "file_name": "0585-01",
  "first_page_order": 613,
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