Mitchell, Brewer, Richardson, Adams , 254 N.C. App. 706 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1122
Filed: 1 August 2017
Cumberland County, No. 06 CVS 6091
MITCHELL, BREWER, RICHARDSON, ADAMS, BURGE & BOUGHMAN; GLENN
B. ADAMS; HAROLD L. BOUGHMAN, JR. and VICKIE L. BURGE, Plaintiffs,
v.
COY E. BREWER, JR., RONNIE A. MITCHELL, WILLIAM O. RICHARDSON, and
CHARLES BRITTAIN, Defendants.1
Appeal by defendants from orders entered 26 February 2013, 18 September
2015, and 19 February 2016 by Judge John R. Jolly, Jr. in Cumberland County
Superior Court. Heard in the Court of Appeals 2 May 2017.
Everett Gaskins Hancock LLP, by E.D. Gaskins, Jr., James M. Hash and Fiona
K. Steer, for plaintiffs-appellees.
Ronnie M. Mitchell and Coy E. Brewer, Jr., pro se, for defendants-appellants.
DAVIS, Judge.
This appeal involves a number of issues surrounding the break-up of the
Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC law firm. Upon
remand of the case following our resolution of the parties’ initial appeal, the trial
court dissolved the law firm and appointed a referee to conduct an accounting and
1 Richardson and Brittain have settled their disputes with Plaintiffs and are not parties to this
appeal.
MITCHELL, BREWER, RICHARDSON, ADAMS, BURGE & BOUGHMAN V. BREWER
Opinion of the Court
distribution. Ronnie M. Mitchell2 and Coy E. Brewer, Jr. (collectively “Defendants”)
now appeal from the trial court’s orders appointing a referee, adopting the report of
the referee, and granting the motion for summary judgment of Glenn B. Adams,
Harold L. Boughman, Jr., and Vickie L. Burge (collectively “Plaintiffs”) as to
Defendants’ remaining counterclaims. We affirm each of the trial court’s orders.
Factual and Procedural Background
The full factual background relating to the break-up of the firm is set out in
our prior opinion. See Mitchell, Brewer, Richardson, Adams, Burge & Boughman,
PLLC v. Brewer, 209 N.C. App. 369, 705 S.E.2d 757 (hereinafter “Mitchell I”), disc.
review denied, 365 N.C. 188, 707 S.E.2d 243 (2011). Accordingly, we only discuss
below those facts relevant to the present appeal.
This lawsuit arose out of a dispute between the members of the Mitchell,
Brewer, Richardson, Adams, Burge & Boughman, PLLC law firm, which resulted in
the firm breaking up in the summer of 2005.3 Plaintiffs subsequently formed a new
firm called Adams, Burge & Boughman, PLLC (“AB&B”), while Brewer, Mitchell,
William O. Richardson, and Charles Brittain continued to practice law together as
Mitchell, Brewer, Richardson. In the aftermath of the break-up, numerous
2 The complaint and the captions of the trial court’s orders incorrectly identify Mitchell as
“Ronnie A. Mitchell” rather than “Ronnie M. Mitchell.”
3 For purposes of clarity, in this opinion we refer to the firm that existed at the time of
dissolution — Mitchell, Brewer, Richardson, Adams, Burge & Boughman, PLLC — as “the PLLC.”
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disagreements arose between the parties regarding the ownership of certain PLLC
assets — including future profits from unresolved contingent fee cases brought into
the PLLC before the break-up.
On 5 July 2006, Plaintiffs filed the present lawsuit in Cumberland County
Superior Court against Brewer, Mitchell, Richardson, and Brittain in which they
asserted claims for (1) an accounting to the PLLC; (2) an accounting to Plaintiffs; (3)
a “liquidating distribution”; (4) constructive fraud and breach of fiduciary duty; and
(5) unfair and deceptive trade practices. In connection with these claims, Plaintiffs
sought a judicial dissolution and winding up of the PLLC. Plaintiffs asserted these
claims both individually and derivatively on behalf of the PLLC. Plaintiffs
subsequently amended their complaint on 1 August 2006, 23 May 2007, and 17
February 2009.
The lawsuit was designated a complex business case pursuant to N.C. Gen.
Stat. § 7A-45.4 and assigned to the Honorable John R. Jolly, Jr. of the North Carolina
Business Court. On 1 November 2006, Defendants moved to dismiss Plaintiffs’
complaint, and the trial court denied the motion by order entered on 8 May 2007.
Defendants subsequently filed an answer on 13 June 2007, raising multiple defenses
and asserting the following counterclaims: (1) a request for a declaratory judgment
that Plaintiffs “voluntarily and unilaterally withdrew” from the PLLC; (2) a
declaratory judgment that Plaintiffs were equitably estopped from denying that they
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Opinion of the Court
had agreed to a dissolution of the PLLC pursuant to the terms of a memorandum
drafted by Brewer; (3) breach of fiduciary duty in connection with Plaintiffs’ misuse
of PLLC assets, failure to meet financial obligations of the PLLC, and failure to
account for fees generated through PLLC business; (4) conversion and
misappropriation of PLLC assets; (5) unjust enrichment for failure to account to the
PLLC; (6) a request for imposition of a constructive trust, equitable lien, or resulting
trust; (7) breach of fiduciary duty in connection with “the defense of [a] malpractice
action[;]” (8) unjust enrichment in connection with “the defense of [a] malpractice
action[;]” (9) breach of fiduciary duty based on ultra vires acts; and (10) a request for
a statutory distribution of assets.
On 9 January 2008, the parties each filed motions for partial summary
judgment. Plaintiffs’ motion requested judicial dissolution of the PLLC and dismissal
of Defendants’ counterclaims that were “predicated on the proposition that no such
dissolution occurred.” Defendants’ motion requested an order declaring that
Plaintiffs had “withdrawn” from the PLLC as opposed to there having been a
dissolution of the firm. On 15 August 2008, Defendants filed a second motion for
summary judgment as to all of Plaintiffs’ claims on the grounds that the PLLC lacked
standing to bring this action on its own behalf and the individual plaintiffs lacked
standing to bring this action derivatively on behalf of the PLLC.
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Opinion of the Court
The trial court issued an order on 31 March 2009 ruling, in part, that Plaintiffs
were equitably estopped from denying that they had withdrawn from the PLLC.
Therefore, the court held, all of the parties’ claims would be evaluated in the context
of a withdrawal by Plaintiffs from the PLLC rather than a dissolution of the PLLC.
Mitchell I, 209 N.C. App. at 375-76, 705 S.E.2d at 762-63. All of the parties appealed
to this Court from the trial court’s order.
In Mitchell I, we affirmed in part the trial court’s order, reversed in part, and
remanded for further proceedings. With respect to the issue of standing, we held that
Plaintiffs possessed standing under N.C. Gen. Stat. § 57C-8-01(a) to assert derivative
claims on behalf of the PLLC. Id. at 382-87, 705 S.E.2d at 767-70. We further ruled
that because “withdrawal pursuant to N.C. Gen. Stat. § 57C-5-06 was not available
as a remedy at law for the parties[,]” the dismissal of Defendants’ counterclaims
premised upon an alleged withdrawal by Plaintiffs was proper. Id. at 390, 705 S.E.2d
at 772. We also held that pursuant to N.C. Gen. Stat. § 57C-6-02 dissolution of the
PLLC was necessary because there was a deadlock in its management. Id. at 390-91,
705 S.E.2d at 772.4
4 We also rejected Defendants’ allegation in Counterclaim Two that a memorandum drafted
by Brewer (the “Brewer Memorandum”) and provided to Plaintiffs on 8 July 2005 set forth the terms
governing a dissolution of the PLLC. The Brewer Memorandum had sought to lay out the terms that
would apply to the PLLC’s break-up, including the distribution of certain PLLC assets and the
handling of PLLC liabilities. In Mitchell I, we determined that Counterclaim Two failed because,
among other reasons, there was no “indication that the plaintiffs expressly assented to the terms as
proposed by defendants” in the Brewer Memorandum. Id. at 386, 705 S.E.2d at 769 (quotation marks
omitted).
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MITCHELL, BREWER, RICHARDSON, ADAMS, BURGE & BOUGHMAN V. BREWER
Opinion of the Court
With respect to dissolution and the need for a liquidation and distribution, we
explained as follows:
Here, since 14 June 2005, there has been a deadlock
between the PLLC members as a result of their
disagreement regarding division of profits derived from
pending contingent fee cases when three members of the
PLLC left the PLLC, and plaintiffs and defendants began
practicing separate and apart beginning on 1 July 2005.
Although there were communications between plaintiffs
and defendants addressing the assets of the PLLC, none
resolved this deadlock. Because the three plaintiffs were no
longer willing to practice with defendants, the PLLC could
“no longer be conducted to the advantage of the members
generally[.]” See [N.C. Gen. Stat. § 57C-6-02]. Liquidation
of the PLLC’s assets “is reasonably necessary for the
protection of the rights or interests of the complaining
member[s]” as the PLLC’s members have been unable to
reach any agreement regarding profits from the disputed
pending contingent fee cases. See id. Also, there is evidence
that profits made by defendants since the deadlock from
one of the disputed contingent fee cases were not
distributed to the members or accounted for by defendants.
Therefore, there is a potential that the PLLC’s assets are
being misapplied. Accordingly, plaintiffs have forecast
facts which would permit judicial dissolution pursuant to
N.C. Gen. Stat. § 57C-6-02. As defendants had “a full and
complete remedy at law[,]” the business court erred in not
applying this legal remedy and instead applying the
principles of equity to resolve the issues arising from this
breakup.
Id.
Thus, we determined that “because the business court improperly applied
equitable estoppel in this situation, it abused its discretion by not ordering judicial
dissolution of the PLLC.” Id. at 392, 705 S.E.2d at 773. We then concluded as follows:
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Opinion of the Court
Accordingly, we reverse the business court’s
judgment granting partial summary judgment in favor of
defendants on the basis of equitable estoppel and remand
to the business court for [the] granting of summary
judgment in favor of plaintiffs on the issue of judicial
dissolution pursuant [to] N.C. Gen. Stat. § 57C-6-02, for a
decree of dissolution, and directing the winding up of the
PLLC pursuant to N.C. Gen. Stat. § 57C-6-02.3 (2007).
Given this ruling, plaintiffs’ derivative claims for an
accounting to the PLLC (claim one), an accounting to
plaintiffs (claim two), and a demand of liquidating
distribution (claim three), as well as defendants’
counterclaim for a demand for statutory distribution of
assets (counterclaim ten), will be addressed by the business
court in its directing the winding up of the PLLC.
Id. at 393, 705 S.E.2d at 773. Finally, we reversed the trial court’s dismissal of
Plaintiffs’ Claims Four and Five and Defendants’ Counterclaims Three through Six
and Nine on the ground that the trial court had dismissed those claims based upon
its incorrect determination that a withdrawal had occurred. Id. at 393, 705 S.E.2d at
773-74.
Upon remand, the trial court held a hearing on 17 August 2012 in order to
consider the parties’ arguments regarding the potential appointment of a referee to
oversee accounting and distribution issues in connection with the dissolution of the
PLLC. Prior to the hearing, the parties submitted briefs setting forth their respective
positions regarding the appointment of a referee and the methodology that should be
employed in valuing disputed contingent fee engagements.
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Opinion of the Court
On 26 February 2013, the trial court issued an “Opinion and Order Dissolving
Company and Appointing Special Master” (the “Reference Order”).5 In this order, the
court entered a decree of dissolution retroactively dissolving the PLLC as of 1 July
2005 (the “Dissolution Date”). The trial court noted that “[t]he parties agree that a
dissolution of the [PLLC] is required, as well as an accounting and distribution of its
assets” but that “[t]he parties dispute various aspects of the financial and accounting
records of the [PLLC] and the amounts owed by and to the respective parties.” The
court observed that “[a] primary point of contention between the parties is the
appropriate accounting method for profits derived from the contingent-fee
engagements that the [PLLC] entered into prior to dissolution but were resolved post-
dissolution by Defendants (‘Contingent Fee Engagements’).” The court stated that
[t]he difficulty in liquidating contingent-fee engagements
by conventional means leads inevitably to the conclusion
that the only way in which they may be converted to value
following dissolution is by pursuing them to resolution.
Further, it is unrealistic to suppose that all former
members will collaborate in order to resolve contingent-fee
engagements following dissolution. As is often the case in
a law-firm setting, only a few of the members, perhaps only
one, will have been involved personally in the engagement
prior to dissolution and possess an adequate familiarity
with the client and the subject matter of the litigation to
proceed with representation following dissolution.
Therefore, the task of pursuing such engagements
following dissolution is likely to fall to those members who
pursued the engagements prior to dissolution, usually at
5 The parties and the trial court use the terms “referee” and “special master” interchangeably.
For the sake of consistency, we will use the term “referee” as that is the term used in Rule 53 of the
North Carolina Rules of Civil Procedure.
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Opinion of the Court
the affirmative direction of the client. Practically, this
means that following dissolution an individual member or
members will pursue the engagements using individual
effort and skill without collaboration with former
members.
The trial court then concluded that
the appropriate measure of the value of the Contingent Fee
Engagements to the [PLLC] is the reasonable value of the
services provided by or in behalf of the [PLLC] up to the
date of dissolution. Under the present circumstances, the
best means by which to measure the reasonable value of
pre-dissolution services is to determine (a) the total
attorney hours (“Time”) expended on a particular
Contingent Fee Engagement, both prior to and after
dissolution, (b) the percentage of Time that was expended
prior to dissolution and (c) the net profit ultimately
realized from the Contingent Fee Engagement. The
reasonable asset value to the [PLLC] of each such matter
would be determined by the percentage of pre-dissolution
Time expended relative to the net profit ultimately realized
on that matter. As an example, if a total of 100 attorney
hours were expended on a particular Contingent Fee
Engagement and 50 of those hours were performed prior to
dissolution, the net fee ultimately received by Defendants
should be shared 50/50 with Plaintiffs. This method, as
opposed to others, best accounts for the risk borne by the
[PLLC] in initially taking on the Contingent Fee
Engagements and also reflects the parties’ expectations at
the time they entered into the Contingent Fee
Engagements.
The court therefore will direct the winding up of the
[PLLC] in accordance with the findings and conclusions
above. In doing so, the court observes that the reasoning
relative to liquidation and sharing between the [PLLC] and
Defendants of ultimate profits from Contingent Fee
Engagements ordinarily also would hold true for any
professional engagements (“Other Engagements”) initially
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Opinion of the Court
undertaken by the [PLLC] but completed and billed for
post-dissolution by Defendants. This Opinion and Order is
intended to encompass such Other Engagements.
(Footnote omitted.)
The trial court proceeded to determine that the appointment of a referee “to
conduct an accounting of the [PLLC] as to the Contingent Fee Engagements and any
Other Engagements . . . will be in the best interest of the parties.” Accordingly, the
trial court ordered as follows:
[31] The [PLLC] is DISSOLVED, pursuant to G.S.
57C-6-02. The dissolution of the [PLLC] shall be effective
as of July 1, 2005 (“Dissolution Date”).
[32] The court appoints Craig A. Adams, CPA, as
Special Master, pursuant to Rule 53. . . .
[33] In undertaking and performing this
engagement, the Special Master is authorized to engage
the professional services of other members of his
accounting firm, at their customary and usual hourly rates,
as he reasonably determines are needed.
[34] The Special Master shall take an account of the
[PLLC] and the Defendants, consistent with the provisions
of this Opinion and Order, and shall:
(a) Take control of and secure the financial
records, or appropriate copies thereof, of the [PLLC];
(b) Secure the financial records, or appropriate
copies thereof, of the Defendants, as they relate to
the Contingent Fee Engagements or any Other
Engagements;
(c) Assess the state of the financial records of
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Opinion of the Court
the [PLLC];
(d) Assess the state of the financial records of
the Defendants as they relate to the Contingent Fee
Engagements or any Other Engagements;
(e) Direct and assist in the preparation of
financial statements that state the financial
condition of the [PLLC] with reasonable accuracy;
(f) Investigate and report to the court the
nature and extent of the outstanding assets and
liabilities of the [PLLC];
(g) If there are [PLLC] assets subject to
distribution under G.S. 57C-6-05, determine and
recommend to the court the amount in which those
assets should be distributed to the [PLLC] using
generally accepted accounting principles and the
protocols established in this Opinion and Order;
(h) With regard to any [PLLC] assets available
for distribution, determine and recommend to the
court the manner and proportions of such
distributions to the various members of the [PLLC]
as of the date of dissolution; and
(i) The [PLLC] shall submit to the Special
Master records of all attorney billable hours
expended prior to the Dissolution Date on any
matter pending as of the Dissolution Date. This
record shall indicate the number of total billable
hours attributable to the Contingent Fee
Engagements or any Other Engagements.
Defendants shall submit to the Special Master a
record of all attorney hours expended on the
Contingent Fee Engagements or any Other
Engagements.
[35] All parties to this civil action shall cooperate
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Opinion of the Court
fully with the Special Master in the performance of his
duties.
[36] The Special Master shall report his finding to
the court as soon as practicable and may request from the
parties or the court any further information, authority,
direction or actions he might need from the court or parties
in order to perform the duties reflected in this Opinion and
Order.
....
[38] All parties to this civil action are directed to
cooperate with the Special Master and provide any and all
financial information and records he might request.
[39] During [the] pendency of this civil action or
unless otherwise ordered, all parties are directed not to
destroy, remove, alter or obscure any of the financial or
otherwise relevant records of the [PLLC].
None of the parties filed objections to the Reference Order or to the
appointment of the Referee as provided for therein. The trial court subsequently
issued an order on 14 June 2013 providing additional specificity regarding the
materials that the parties were required to make available to the Referee. During
the course of the accounting process, the Referee conducted ex parte interviews with
the parties in order to better understand the records that had been submitted to him.
On 24 October 2014, after the Referee had completed his report but before it was filed
with the trial court, the parties were allowed to depose Sarah Armstrong — senior
manager for the Referee’s accounting firm and the report’s principal author —
regarding the accounting process and methodology that had been used.
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Opinion of the Court
The Referee subsequently filed his report (the “Referee’s Report”) with the trial
court on 13 February 2015. The report had “three primary areas of focus: profit
allocation percentages; restoration of negative capital accounts; and allocation of
contingent fees.” After explaining its determinations with respect to each of these
issues, the Referee ultimately concluded that Defendants owed a total of $358,000 to
Plaintiffs — specifically, $109,000 to Adams, $96,000 to Boughman, and $153,000 to
Burge.
On 13 March 2015, Brewer, Mitchell, and Brittain filed “Exceptions and
Objections Regarding Report of Special Master.” Among other things, they argued
that the trial court’s prior orders related to the Referee “did not and do not clearly
define the methodology to be employed and the scope of the responsibilities and
powers of the appointed referee or special master.” They also requested that certain
findings in the Referee’s Report be submitted to a jury.
Plaintiffs subsequently filed a motion requesting that the trial court adopt the
Referee’s Report. Following a hearing on 8 May 2015, the trial court issued its
“Opinion, Order and Judgment” (the “Adoption Order”) on 18 September 2015
granting Plaintiffs’ motion to adopt the Referee’s Report and rejecting the objections
raised by Brewer, Mitchell, and Brittain.6
6 By the time the Adoption Order was filed, only Mitchell and Brewer remained as defendants.
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Opinion of the Court
In the Adoption Order, the trial court determined that by failing to object at
the time the Reference Order was issued, Defendants had waived their right to (1)
demand a jury trial on contested issues addressed in the Reference Order; and (2)
argue that the Reference Order failed to clearly define the methodology to be
employed by the Referee and the scope of his responsibilities and powers. The court
also rejected Defendants’ various exceptions to the substantive findings of the report.
The trial court ultimately concluded that “the Referee’s Report complies with
the Reference Order, is supported by competent evidence and that the conclusions
reached in the Referee’s Report are supported by the facts found.” Accordingly, the
trial court adopted the Referee’s Report “in its entirety as constituting the findings
and conclusions of the court” and entered judgments against Defendants in the
amount of $102,578 each.
The trial court then explained that its ruling did “not constitute a final
disposition of this civil action, as there remain unresolved claims and counterclaims.”
The court therefore ordered the parties to file by 12 October 2015 any dispositive
motions related to those unresolved claims — namely, Plaintiffs’ Claims Four and
Five and Defendants’ Counterclaims Three through Nine.
On that date, Plaintiffs filed a motion for summary judgment as to Defendants’
remaining counterclaims. In support of this motion, Plaintiffs relied upon our
decision in Mitchell I as well as the trial court’s Adoption Order and the Referee’s
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Report. Defendants submitted affidavits from Mitchell and Brewer in opposition to
Plaintiffs’ motion and also filed a cross-motion for summary judgment as to Plaintiffs’
claims for fraud and breach of fiduciary duty (Claim Four) and unfair and deceptive
trade practices (Claim Five). On 9 December 2015, Plaintiffs voluntarily dismissed
Claims Four and Five, thereby mooting Defendants’ summary judgment motion.
On 19 February 2016, the trial court issued an “Order and Opinion” (the “Final
Order”) granting Plaintiffs’ motion for summary judgment and dismissing all of
Defendants’ remaining counterclaims. Defendants filed a timely notice of appeal to
this Court as to the Reference Order, the Adoption Order, and the Final Order.
Analysis
Defendants’ arguments on appeal fall into two main categories: (1) challenges
related to the appointment of the Referee, the accounting process utilized by the
Referee, and the trial court’s adoption of the Referee’s Report; and (2) challenges to
the trial court’s entry of summary judgment in Plaintiffs’ favor on Defendants’
Counterclaims Three through Six and Nine.7 We address each set of arguments in
turn.8
7Defendants do not appeal the trial court’s dismissal of Counterclaims Seven and Eight, which
the court dismissed because Defendants’ brief in opposition to Plaintiffs’ motion for summary judgment
neither addressed them nor pointed to evidence that would create a genuine issue of material fact as
to them.
8Defendants do not raise on appeal any of the substantive exceptions that they asserted below
to the findings in the Referee’s Report. Accordingly, those exceptions are waived. See N.C. R. App. P.
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I. Issues Related to Referee’s Report
In addition to challenging the initial decision to appoint a referee, Defendants
also argue on appeal that the trial court “failed to define clearly the methodology to
be employed and the scope of the responsibilities and powers of the appointed
referee . . . or the means for consideration of the issues in the case.” Relatedly, they
challenge the manner in which the Referee conducted the accounting, including his
decisions not to place interviewees under oath or to compile transcripts of their
interviews as well as his use of ex parte communications with the various parties.
In order to assess these arguments, we begin with an overview of the procedure
by which a trial court may refer matters to a referee. Pursuant to Rule 53 of the
North Carolina Rules of Civil Procedure, “(1) upon consent of the parties, (2) upon
application of one of the parties, or (3) upon its own motion, a trial court may order
that a referee determine issues of fact raised by the pleadings and evidence.” Rushing
v. Aldridge, 214 N.C. App. 23, 24, 713 S.E.2d 566, 568 (2011) (citation omitted). If
one of the parties does not consent, the court may order a reference in the following
instances:
a. Where the trial of an issue requires the examination
of a long or complicated account; in which case the referee
may be directed to hear and decide the whole issue, or to
report upon any specific question of fact involved therein.
28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated,
will be taken as abandoned.”); Larsen v. Black Diamond French Truffles, Inc., 241 N.C. App. 74, 79,
772 S.E.2d 93, 96 (2015) (“[U]nder Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure,
where a party fails to assert a claim in its principal brief, it abandons that issue . . . .”).
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b. Where the taking of an account is necessary for the
information of the court before judgment, or for carrying a
judgment or order into effect.
c. Where the case involves a complicated question of
boundary, or requires a personal view of the premises.
d. Where a question of fact arises outside the
pleadings, upon motion or otherwise, at any stage of the
action.
N.C. R. Civ. P. 53(a)(2).
A trial court’s decision to order a “compulsory reference in an action which the
court has authority to refer is a matter within the sound discretion of the court.”
Dockery v. Hocutt, 357 N.C. 210, 215, 581 S.E.2d 431, 434 (2003). When a reference
is made, “[t]he duty and powers of the referee are not inherent but are determined by
the order of the judge.” Godwin v. Clark, Godwin, Harris & Li, P.A., 40 N.C. App.
710, 713, 253 S.E.2d 598, 601 (citation omitted), appeal dismissed, 297 N.C. 698, 259
S.E.2d 295 (1979).
After gathering the relevant facts, “[t]he referee shall prepare a report upon
the matters submitted to him by the order of reference and shall include therein his
decision on all matters so submitted.” N.C. R. Civ. P. 53(g)(1). After hearing any
exceptions to the referee’s report lodged by the parties, the court “may adopt, modify
or reject the report in whole or in part, render judgment, or may remand the
proceedings to the referee with instructions.” N.C. R. Civ. P. 53(g)(2).
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If a reference is compulsory, a party may preserve its right to a jury trial on
issues decided by the referee by taking each of the following steps:
a. Objecting to the order of compulsory reference at the
time it is made, and
b. By filing specific exceptions to particular findings of
fact made by the referee within 30 days after the referee files
his report with the clerk of the court in which the action is
pending, and
c. By formulating appropriate issues based upon the
exceptions taken and demanding a jury trial upon such
issues. Such issues shall be tendered at the same time the
exceptions to the referee’s report are filed. If there is a trial
by jury upon any issue referred, the trial shall be only upon
the evidence taken before the referee.
N.C. R. Civ. P. 53(b)(2) (emphasis added). If these requirements are satisfied, “[t]he
objecting party will then be entitled to a jury trial on the specified issues unless the
evidence presented to the referee would entitle one of the parties to a directed
verdict.” Rushing, 214 N.C. App. at 26, 713 S.E.2d at 569 (citation omitted).
As an initial matter, Defendants have not preserved their right to have a jury
decide any matters determined by the Referee as they failed to “[o]bject[ ] to the order
of compulsory reference at the time it [was] made[.]”9 N.C. R. Civ. P. 53(b)(2)(a); see
also Gaynor v. Melvin, 155 N.C. App. 618, 621, 573 S.E.2d 763, 765 (2002) (“In order
9 Defendants point to a footnote contained in Mitchell’s 15 August 2012 submission to the trial
court — over six months before the 26 February 2013 Reference Order was issued — stating that he
did “not desire or consent to the entry of an order of reference . . . .” We do not believe, however, that
this preliminary objection to the potential appointment of a referee satisfied Rule 53 as it was not
raised at the time the reference was made as required by Rule 53(b)(2)(a).
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to preserve the right to a jury trial where a compulsory reference has been ordered, a
party must, among other things, object to the order of reference at the time it is
made.”).
Our decision in Godwin is instructive in addressing Defendants’ arguments —
both procedurally and substantively. In Godwin, the plaintiff contended on appeal
that “the trial court and referee did not comply with the terms of Rule 53 in that [the]
referee did not conduct hearings, examine witnesses under oath, admit exhibits into
evidence, prepare a record, make definite findings of fact and conduct an audit before
making the valuation.” Godwin, 40 N.C. App. at 713-14, 253 S.E.2d at 601. This
Court rejected these contentions on several grounds. With regard to the plaintiff’s
substantive arguments, we held that “[n]one of these procedures are required under
the statute” and noted that “[t]he trial court order did not require any of these
procedures.” Id. at 714, 253 S.E.2d at 601.
With regard to the issue of whether the plaintiff had properly preserved its
right to challenge the procedures set forth in the reference order, we stated that “[a]t
the time the order for a compulsory reference was entered, plaintiff did not object to
the contents of the order. Plaintiff cannot now complain.” Id. Similarly, we noted
that “[d]uring the proceedings before the referee, plaintiff did not object at any time
to the procedures used.” Id.
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Here, we similarly reject as untimely Defendants’ challenges to the scope of
the Reference Order or the manner in which the Referee carried out his duties. At
no point during the two years between the issuance of the Reference Order and the
filing of the Referee’s Report did Defendants formally object to the scope of the
Reference Order or the process by which the Referee was conducting the accounting.
The first time Defendants raised any such objections on the record was on 13 March
2015 in their Exceptions and Objections Regarding Report of Special Master.
It is important to note that Defendants do not contend that they were unaware
of how the Referee was conducting the accounting while the process was ongoing.
Nevertheless, they waited until after the Referee’s Report was issued to object to the
procedures utilized by the Referee.10 Accordingly, Defendants’ challenges to the scope
of the Reference Order and the procedures employed by the Referee have been
waived.
Moreover, Defendants’ arguments fail substantively as well. Our holding in
Godwin demonstrates that Rule 53 provides few hard-and-fast rules governing the
manner in which an accounting must be conducted as well as the fact that trial courts
possess broad discretion in determining how a referee is to fulfill his duties:
Plaintiff maintains that the trial court and referee did not
comply with the terms of Rule 53 in that [the] referee did
not conduct hearings, examine witnesses under oath,
10 In addition, we observe that some of Defendants’ specific arguments on appeal — such as
those relating to the Referee’s use of ex parte communications and the lack of interview transcripts —
were not even raised in their Exceptions and Objections Regarding Report of Special Master.
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admit exhibits into evidence, prepare a record, make
definite findings of fact and conduct an audit before making
the valuation. None of these procedures are required under
the statute. The trial court order did not require any of these
procedures.
Godwin, 40 N.C. App. at 713-14, 253 S.E.2d at 601 (emphasis added).
Moreover, Rule 53 provides that a referee conducting an accounting has
significant discretion regarding how he obtains financial information:
When matters of accounting are in issue before the referee,
he may prescribe the form in which the accounts shall be
submitted . . . . [U]pon a showing that the form of statement
is insufficient, the referee may require a different form of
statement to be furnished, or the accounts of specific items
thereof to be proved by oral examination of the accounting
parties or upon written interrogatories or in such other
manner as he directs.
N.C. R. Civ. P. 53(f)(2).11
We are not persuaded by Defendants’ citation to Synco, Inc. v. Headen, 47 N.C.
App. 109, 266 S.E.2d 715, disc. review denied, 301 N.C. 238, 283 S.E.2d 135 (1980),
to support their argument that the Referee’s failure to require sworn testimony and
produce transcripts of his interviews was improper. In Synco, the trial court
appointed a referee to resolve a lawsuit involving a large number of individual
transactions between the parties related to repairs made to several apartment
complexes. Id. at 112, 266 S.E.2d at 717. The referee engaged the services of a court
11 Indeed, Defendants acknowledge in their brief that “Rule 53 does not always require that
the referee conduct a hearing, examine witnesses, receive evidence, or make findings of fact unless the
order of reference so directs[.]”
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reporter who recorded nine days of witness testimony before the referee. However,
transcripts of the testimony were never actually prepared and entered into the record.
After the referee issued his report, the defendants filed an exception regarding the
lack of transcripts. Id. at 114, 266 S.E.2d at 718.
On appeal, the defendants argued that the trial court had erred in adopting
the referee’s report without the production of transcripts. In our decision, we cited
Rule 53(f)(3), which provides that “[t]he testimony of all witnesses must be reduced
to writing by the referee, or by someone acting under his direction and shall be filed
in the cause and constitute a part of the record.” Id. at 113, 266 S.E.2d at 718. We
noted that “[t]he transcript requirement of Rule 53 may, however, be waived by
agreement of the parties.” Id. at 114, 266 S.E.2d at 718. We then held that because
the defendants had raised the transcript issue in their exceptions to the referee’s
report, the issue was preserved. We therefore reversed on this ground. Id. at 113-
14, 266 S.E.2d at 718.
Synco is distinguishable on its face. That case involved nine days of testimony
before a referee that the parties and the trial court fully expected to be transcribed,
yet no transcripts were ever provided by the court reporter. Id. at 113, 266 S.E.2d at
717. Here, conversely, the trial court did not direct — and the parties did not
expressly request — that the Referee take sworn testimony from witnesses. Thus,
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the Referee possessed the authority to conduct the accounting process in the manner
he believed would be most efficient.
In short, neither Rule 53 nor the Reference Order mandated that the Referee
conduct the accounting process in the manner that Defendants are now arguing was
required. Accordingly, for all of the reasons set out above, we are unable to conclude
that Defendants have demonstrated legal error with regard to the trial court’s
appointment of the Referee, the court’s articulation of the scope of the Referee’s
duties, the manner in which the Referee carried out those duties, or the trial court’s
adoption of the Referee’s Report. Therefore, we affirm both the Reference Order and
the Adoption Order.
II. Entry of Summary Judgment as to Defendants’ Counterclaims
Defendants’ final argument is that the trial court erred in granting summary
judgment in favor of Plaintiffs on Counterclaims Three through Six and Nine. “On
an appeal from an order granting summary judgment, this Court reviews the trial
court’s decision de novo. Summary judgment is appropriate if 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.” Premier, Inc. v. Peterson, 232
N.C. App. 601, 605, 755 S.E.2d 56, 59 (2014) (internal citations and quotation marks
omitted).
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It is well established that “[t]he moving party has the burden of demonstrating
the lack of any triable issue of fact and entitlement to judgment as a matter of law.
The evidence produced by the parties is viewed in the light most favorable to the non-
moving party.” Hardin v. KCS Int’l, Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733
(2009) (internal citations omitted). We have held that “[a]n issue is ‘genuine’ if it can
be proven by substantial evidence and a fact is ‘material’ if it would constitute or
irrevocably establish any material element of a claim or a defense.” In re
Alessandrini, 239 N.C. App. 313, 315, 769 S.E.2d 214, 216 (2015) (citation omitted).
We agree with the trial court that Counterclaims Three through Six and Nine
fail as a matter of law. Defendants’ answer contained the following prefatory
language introducing these counterclaims:
If it is determined that the individual Plaintiffs did not
withdraw [from] the [PLLC] and there was no dissolution
upon the terms set forth in the July 8, 2005 Memorandum,
then there has been no dissolution of the [PLLC] because
none of the requirement[s] in G.S. § 57C-6-01 have been
met. In the event the individual Plaintiffs are still members
of the [PLLC], then Defendant alleges the following claims
in the alternative[.]
(Emphasis added.)
Similarly, Counterclaims Three through Six and Nine each individually
asserted that “[i]f it is determined that the individual Plaintiffs have not withdrawn
from the [PLLC], the individual Plaintiffs are still members of the [PLLC] and still
owe a fiduciary duty to the [PLLC] and to the Defendants . . . .” (Emphasis added.)
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Thus, each of the counterclaims at issue in this appeal were — by their express
terms — premised upon the incorrect proposition that dissolution of the PLLC was
not required and that the PLLC, therefore, remained an ongoing entity.12 Critically,
none of these counterclaims were based upon the correct theory — that a judicial
dissolution was necessary because of the deadlock between the PLLC’s members.
This mistaken assumption that the PLLC remained in existence was further reflected
in the substantive allegations contained within each of these counterclaims.
Counterclaim Three (“Breach of Fiduciary Duty”) alleged that
[t]he individual Plaintiffs have breached their fiduciary
duties to the [PLLC] and to the Defendants by, among
other things, failing to meet their financial obligations to
the [PLLC] through payment of a portion of the [PLLC]’s
expenses and liabilities, failing to account for the legal fees
they have generated on legal matters after they ceased
practicing law with the [PLLC], and failing to pay to the
[PLLC] and/or to the Defendants a share of such legal fees.
Counterclaim Four (“Conversion/Misappropriation of Firm Assets”) asserted
that
[t]he individual Plaintiffs have wrongfully converted
and/or misappropriated assets of the [PLLC] by, among
other things, failing to pay to the [PLLC] or to the
Defendants their share of the [PLLC]’s expenses or
liabilities and by failing to pay to the [PLLC] or to the
Defendants a portion of the legal fees the individual
Plaintiffs and/or AB&B generated from legal matters after
12 The only counterclaim that was premised upon a dissolution theory was Counterclaim Two,
which was based upon the notion that the PLLC had dissolved in accordance with the terms of the
Brewer Memorandum. As discussed above, however, Mitchell I foreclosed Defendants’ reliance upon
that theory.
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they ceased practicing law with the [PLLC].
Counterclaim Five (“Unjust Enrichment”) alleged that
[t]he individual Plaintiffs and/or AB&B have been unjustly
enriched by failing to pay their share of the [PLLC]’s
expenses and liabilities and by failing to pay to the [PLLC]
or to the Defendants a portion of the legal fees the
individual Plaintiffs and/or [sic] generated on legal matters
after the individual Plaintiffs[ ] ceased practicing law with
the [PLLC].
Counterclaim Six (“Constructive Trust, Equitable Lien, and/or Resulting
Trust”) asserted that
Defendants and the [PLLC] are entitled to a constructive
trust, an equitable lien, and/or a resulting trust upon any
and all fees, deposits, or property acquired by the
individual [Plaintiffs] and/or AB&B for the individual
Plaintiffs’ share of the [PLLC]’s expenses and liabilities
and for Defendants’ share of the legal fees the individual
Plaintiffs generated from legal matters after they ceased
practicing law with the [PLLC].
Finally, Counterclaim Nine (Breach of Fiduciary Duty/Ultra Vires Act) alleged
that
[a]fter the individual [Plaintiffs] withdrew from the
[PLLC], they filed a legal action against the Defendants
without making any reasonable inquiry or investigation to
determine whether the [PLLC] had dissolved, whether
Defendants and/or the [PLLC] had commingled assets or
whether there was any factual basis for their legal claims.
121. Had the individual Plaintiffs conducted such a
reasonably [sic] inquiry or investigation, they would have
determined the [PLLC] has not dissolved, that there had
been no commingling of [PLLC] assets, and that there was
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no basis for individual Plaintiffs[’] legal claims against
Defendants.
Accordingly, it is clear that Counterclaims Three through Six and Nine were
premised upon neither a withdrawal nor a dissolution having occurred. Rather, the
essence of these counterclaims was that Plaintiffs were required to pay their share of
the PLLC’s ongoing debts and liabilities based upon their continuing status as
members of the PLLC and to account for legal fees received by them since their
dispute with Defendants had occurred. However, such a legal theory is inconsistent
with our ruling in Mitchell I in which we held that a judicial dissolution was
necessary. In accordance with our decision, the trial court ordered that the PLLC be
dissolved as of 1 July 2005.
Thus, any confusion that may have existed between the parties as to the status
of the PLLC was eliminated by our decision in Mitchell I. Nevertheless, Defendants
failed to amend their counterclaims in the aftermath of Mitchell I to reflect the reality
that the PLLC had been judicially dissolved and to reframe their claims for relief
accordingly.13
13 Nor does the fact that Mitchell I reversed the trial court’s dismissal of Counterclaims Three
through Six and Nine mean that those claims are currently viable. Our ruling in Mitchell I on this
issue was based upon the fact that the trial court had improperly dismissed those counterclaims
pursuant to its legally incorrect ruling that a withdrawal had occurred based upon principles of
equitable estoppel. We therefore reversed the trial court’s dismissal of these counterclaims because of
this error of law. The issue of whether Counterclaims Three through Six and Nine — as pled — would
survive a subsequent order of dissolution by the trial court was not before us.
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Moreover, it is important to note that despite the above-referenced defects with
respect to Counterclaims Three through Six and Nine, Defendants nevertheless had
a full and fair opportunity during the accounting process to seek all sums that they
claimed they were owed and to raise any issues that they felt needed to be addressed
in the accounting. Additionally, the Referee’s Report largely encompassed the
matters raised in these counterclaims, including the accounting of legal fees
connected to matters that had originated with the PLLC but were later resolved by
the various parties after the break-up.
The Referee’s Report focused on three primary areas: “[1] profit allocation
percentages; [2] restoration of negative capital accounts; and [3] allocation of
contingent fees[,]” which it rightly determined were “the most relevant and
significant financial components of a settlement between the Parties.” With respect
to this last category — which has been the principal source of disagreement over the
course of this litigation — the report contained an extensive analysis of the values of
contingent fee cases that had been received before dissolution but resolved afterward.
Significantly, this analysis encompassed cases that were resolved following the
break-up by both Defendants and Plaintiffs.
Thus, the Referee’s Report contained a thorough and detailed accounting in
connection with the dissolution of the PLLC. The Defendants had an opportunity
prior to the completion of the accounting to request that the Referee consider
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additional financial matters related to the PLLC, but they did not do so. Moreover,
Defendants have not challenged on appeal the substance of the Referee’s Report.
Therefore, any issues concerning the validity of the Referee’s substantive findings are
not before us.
Conclusion
For the reasons stated above, we affirm the trial court’s orders of 26 February
2013, 18 September 2015, and 19 February 2016.
AFFIRMED.
Judges BRYANT and STROUD concur.
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