93 N.C. App. 674 | N.C. Ct. App. | 1989
Lead Opinion
Plaintiff assigns error to the trial court’s grant of summary judgment for defendants.
Article 13 of Chapter 28A of the North Carolina General Statutes sets forth the powers and duties of personal representatives of decedents’ estates. G.S. § 28A-13-3(a)(23) (1988) provides in pertinent part that personal representatives have the power and duty:
(23) To maintain actions for the wrongful death of the decedent . . . and to compromise or settle any such claims, whether in litigation or not, provided that any such settlement shall be subject to the approval of a judge of superior court unless all persons who would be entitled to receive any damages recovered under [the wrongful death act] are competent adults.
As we have noted in our factual synopsis, the proposed settlement of plaintiff’s wrongful death suit was submitted to Judge Griffin for approval. In his Order of 19 December 1984 approving the settlement agreement, Judge Griffin made extensive findings of fact as to the type and quality of services provided by the defendants in the wrongful death action, and found and concluded that the fees agreed upon were fair and reasonable and in the best interest of the beneficiaries of the Estate of Peter Beckwith.
The doctrine of estoppel by judgment is firmly entrenched in the law of this State. See Vann v. N.C. State Bar, 79 N.C. App. 166, 339 S.E. 2d 95 (1986) and cases cited and relied upon there.
It is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to parties and privies, in all other actions involving the same matter.
Id. (quoting Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157 (1942)).
The essence of plaintiffs claims in this action is to dispute the attorney’s fees received by defendants in the settlement of the wrongful death suit, and in effect to change the amount of fees awarded to defendants in that action. We perceive this action to be a collateral attack on the judgment approving the structured settlement and attorney’s fees in the wrongful death suit.
“It is settled law that a judgment which is regular and valid on its face may be set aside only by motion in the original cause in the court in which the judgment was rendered.” Jeffreys v. Snipes, 45 N.C. App. 76, 262 S.E. 2d 290, disc. rev. denied, 300 N.C. 197, 269 S.E. 2d 624 (1980). “Such a judgment may not be attacked collaterally. Neither may a direct attack be maintained in an independent action.” Id. at 78, 262 S.E. 2d at 291. “A collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is adjudicated invalid.” Thrasher v. Thrasher, 4 N.C. App. 534, 167 S.E. 2d 549, cert. denied, 275 N.C. 501 (1969).
In the present case plaintiff petitioned the trial court for an order approving settlement in the wrongful death suit as required by G.S. § 28A-13-3(a)(23). This settlement included provisions for attorney’s fees. The petition also included provisions which indicated that plaintiff agreed to pay a certain amount of attorney’s fees to defendants. Plaintiff executed the settlement agreement herself and defendants executed the petition for court approval on her behalf. Defendant’s forecast of evidence indicates the trial court questioned plaintiff about her understanding of the settlement, her approval of attorney’s fees and the work of her attorneys. Plain
Summary judgment is appropriate for the disposition of cases where there is no genuine issue of fact, and its purpose is to eliminate trials in cases where only questions of law are involved. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). The materials before the trial court in this case showed that defendants were entitled to judgment as a matter of law. The judgment of the trial court must be and is
Affirmed.
Dissenting Opinion
dissenting.
The contract entered into between plaintiff and defendants called for defendants to receive 33V3%, plus expenses, of any recovery in the wrongful death action. The lawyers collected fees amounting to at least 42.6% and arguably, as much as 55% of the settlement.
Plaintiff’s complaint is grounded on allegations of breach of fiduciary obligation and negligence. In my view, these contentions adequately state a cause of action for attorney malpractice. See, generally, R. Miller & J. Smith, Legal Malpractice, ch. 11 (3d ed. 1989) (fiduciary duties); see Hodges v. Carter, 239 N.C. 517, 519-20, 80 S.E. 2d 144, 145-46 (1954) (negligence). I do not agree that this new and separate cause of action constitutes a collateral attack by plaintiff upon the settlement.
I would reverse the judgment of the trial judge and, accordingly, I dissent.
