Braun v. TRUST DEVELOPMENT GROUP, LLC
213 N.C. App. 606
| N.C. Ct. App. | 2011Background
- Braun (plaintiff) sues Trust Development Group, LLC and Pursuit Development Group Two, LLC (defendants) over a condo purchase and related lease; contracts dated Sept 3, 2008 require rental of a Trust-owned condo and purchase within 18 months, with a $140,000 deposit.
- Plaintiff alleged Trust’s breach of lease and purchase, seeking return of the deposit and related relief.
- On Nov 9, 2009 plaintiff notified Trust via counsel that he would not close due to Trust’s alleged unfinished work (e.g., rooftop terrace) and requested rent reduction and deposit return; Trust refused.
- Jan 26, 2010 plaintiff amended complaint to add Pursuit; defendants answered Feb 1, 2010, counterclaim alleging plaintiff damaged the condo and breached the lease by unpaid rent, utilities, and taxes, asserting default under the lease also defaulted the purchase, and seeking specific performance.
- March 15, 2010 the parties signed a settlement agreeing to close by Apr 30, 2010 and vendors to provide rooftop terrace documents by Apr 26, 2010; the agreement deemed void if closing failed or documents not provided; plaintiff later claimed material breach when documents were not delivered.
- July 1, 2010 defendants moved to disqualify plaintiff’s counsel; August 18, 2010 trial court disqualified them as witnesses on a contested issue (anticipatory repudiation); plaintiff appealed the interlocutory order, which the court upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disqualification of counsel was proper under Rule 3.7 | Braun argues no basis for disqualification; contested issue not warranting disqualification | Defendants contend Bray and Long are necessary witnesses on anticipated repudiation and related communications | No abuse of discretion; counsel disqualified as likely necessary witnesses on a contested issue |
Key Cases Cited
- Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 332 N.C. 288, 420 S.E.2d 426 (1992) (disqualification affects substantial rights; trial court may exercise discretion)
- Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990) (factors for disqualification; substantial rights)
- Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978) (interlocutory appeal standards; substantial right principle)
- Cunningham v. Sams, 161 N.C.App. 295, 588 S.E.2d 484 (2003) (Rule 3.7 discretionary standard for disqualification)