Todd Braun (“plaintiff”) appeals from the trial court’s 18 August 2010 order disqualifying plaintiff’s counsel. After careful review, we affirm.
Background
On 3 September 2008, plaintiff entered into two contractual agreements with defendant Trust Development Group, LLC (“Trust”) — a residential lease agreement and a purchase agreement. Pursuant to the terms of these agreements, plaintiff was to rent a condominium owned by Trust in Charlotte, North Carolina and then purchase the condominium within 18 months. Plaintiff provided a $140,000.00 deposit upon execution of the purchase agreement.
On 9 November 2009, plaintiff, through his attorneys at the Bray Law Firm, sent a letter to James M. Donnelly at Trust, stating that plaintiff no longer intended to purchase the condominium due to Trust’s alleged breach of the lease and purchase agreements. Specifically, plaintiff claimed that Trust had not completed some areas of the condominium as it previously agreed to do, such as the rooftop terrace. Plaintiff requested that his rent be reduced and that Trust return his deposit, which it refused to do.
On 18 December 2009, plaintiff filed a complaint against Trust alleging, inter alia, breach of the lease and purchase agreements. Plaintiff sought return of the $140,000.00 deposit. On 26 January 2010, plaintiff amended his complaint and added defendant Pursuit Development Group Two, LLC (“Pursuit Development”) who purchased Trust’s interest in the condominium. 1 On 1 February 2010, defendants filed an answer and counterclaim alleging, inter alia, that plaintiff had damaged the condominium and breached the lease ágreement by failing to pay his rent, utilities, and pro rata share of the real estate taxes on the condominium. Defendants further alleged that plaintiffs “default under the Lease is deemed a default under the Purchase Agreement. . . .” Defendants sought specific performance of the purchase agreement.
On 15 March 2010, the parties signed a settlement agreement, which provided that plaintiff would purchase the condominium at the price stated in the purchase agreement by 30 April 2010. Defendants agreed to provide, inter alia, architectural plans and construction permits pertaining to the rooftop terrace by 26 April 2010. The settlement agreement provided that it would be deemed null and void if plaintiff failed to purchase the condominium by 30 April 2010 or if defendants failed to provide the documentation related to the rooftop terrace.
After the settlement agreement was signed and prior to 30 April 2010, plaintiff’s attorneys, William P. Bray (“Mr. Bray”) and Jeffrey A. Long (“Mr. Long”), communicated with defendants’ counsel, Jackson N. Steele (“Mr. Steele”) and Adam W. Foodman (“Mr. Foodman”), on numerous occasions via telephone and email concerning plaintiff’s financing difficulties. Plaintiff’s attorneys acknowledged that there was no financing contingency in the settlement agreement and requested an extension of the 30 April 2010 deadline; however, it appears from the record that no agreement was reached prior to 30 April 2010.
Plaintiff did not close on 30 April 2010, but on that date, Mr. Long sent Mr. Steele a letter stating that defendants had not complied with the settlement agreement because they did not provide plaintiff with the documents pertaining to the rooftop terrace. Plaintiff claimed that this “material breach” rendered the settlement agreement null and void. On 7 June 2010, the trial court, upon consent of the parties, entered an order allowing plaintiff to amend his complaint. On that same day, plaintiff filed an amended complaint stating that defendants had violated the settlement agreement. Plaintiff again sought the return of his $140,000.00 deposit.
On 14 June 2010, defendants filed a consent order for substitution of counsel in which they substituted Steven L. Smith for Mr. Steele. On 25 June 2010, defendants
On 1 July 2010, defendants filed a motion to disqualify plaintiffs counsel. Defendants claimed that “[t]he testimony of Jeffrey A. Long and William P. Bray relate to a contested issue of Plaintiffs anticipatory repudiation of the Settlement Agreement” because Mr. Bray and Mr. Long communicated to defendants’ attorneys on multiple occasions that plaintiff would be unable to close on the 30 April 2010 deadline. Defendants asserted that they intended to call Mr. Bray and Mr. Long as witnesses at trial. On 18 August 2010, the trial court granted defendants’ motion to disqualify plaintiff’s counsel, determining that, inter alia: (1) “Mr.. Bray and Mr. Long are likely to be necessary witnesses to explain their communication and conduct with Mr. Steele and Mr. Foodmanf,]” and (2) “Mr. Bray and Mr. Long are likely to be necessary witnesses to lay a foundation for their written and electronic communications with opposing counsel.” Plaintiff timely appealed from this order.
Interlocutory Nature of Appeal
Plaintiff appeals from an interlocutory order of the trial court. Our courts have consistently held “ ‘that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment.’ ”
Waters v. Qualified Personnel, Inc.,
Our Supreme Court has held that an order granting a motion to disqualify counsel affects a substantial right because it
has immediate and irreparable consequences for both the disqualified attorney and the individual who hired the attorney. The attorney is irreparably deprived of exercising his right to represent a client. The client, likewise, is irreparably deprived of exercising the right to be represented by counsel of the client’s choice. Neither deprivation can be adequately redressed by a later appeal of a final judgment adverse to the client.
Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc.,
Discussion
The sole issue on appeal is whether the trial court erred in granting defendants’ motion to disqualify plaintiff’s attorneys. “Decisions regarding whether to disqualify counsel are within the discretion of the trial judge and, absent an abuse of discretion, atrial judge’s ruling on a motion to disqualify will not be disturbed on appeal.”
Travco,
Rule 3.7 of the North Carolina Rules of Professional Conduct states:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
Rules of Prof. Conduct Rule 3.7(a) (2009);
see Cunningham v. Sams, 161
N.C. App. 295, 297-98,
The trial court in this case determined that Mr. Bray and Mr. Long were necessary witnesses on the issue of plaintiff’s alleged anticipatory repudiation, a contested matter in this case. The trial court then continued the trial for a minimum of 90 days and ordered plaintiff to obtain new counsel within 30 days. We find no abuse of discretion in the trial court’s determination.
Defendants’ chief defense to plaintiff’s claim that defendants breached the settlement agreement is anticipatory repudiation. This defense is based solely on the communications between plaintiff’s and defendants’ counsel. Defendants argue that the communications reveal that plaintiff never intended to close on the condominium on 30 April 2010, and, therefore, they were not required to provide the documents related to the rooftop terrace. As the trial court stated, the testimony of plaintiff’s counsel is essential “to lay a foundation for their written and electronic communications with opposing counsel[,]” to “explain” those communications, and to “explain their knowledge concerning the loan being sought by Plaintiff to purchase the property . ...” We see no abuse of discretion in the trial court’s reasoning.
In sum, we hold that plaintiff’s attorneys are necessary witnesses in this case on a contested issue. Consequently, we hold that the trial court did not err in granting defendants’ motion to disqualify.
Affirmed. .