Robertson v. Steris Corp.

NO. COA13-1301

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

TERRI LYNN ROBERTSON and MARY
DIANNE DANIEL,
Plaintiffs,

v. Brunswick County
No. 07 CVS 106
STERIS CORPORATION, a Delaware
Corporation, et al.,
Defendants.

Appeal by Plaintiffs from order entered 7 February 2013 by

Judge D. Jack Hooks, Jr., in Brunswick County Superior Court.

Heard in the Court of Appeals 9 April 2014.

The Lorant Law Firm, by D. Bree Lorant, and Womble,
Carlyle, Sandridge & Rice, LLP, by Burley B. Mitchell, Jr.,
and Robert T. Numbers, II, for Plaintiffs.

No brief for Defendants.

Young Moore and Henderson P.A., by Walter E. Brock, Jr.,
and Andrew P. Flynt, for Intervenors G. Henry Temple, Jr.,
and Temple Law Firm, PLLC.

STEPHENS, Judge.

Procedural History and Factual Background

In 2004, Plaintiffs Terri Lynn Robertson and Mary Dianne

Daniel were allegedly injured by the release of toxic liquids

and gases from a sterilization machine while they were at work
 -2-
at Brunswick County Hospital. On 19 January 2007, G. Henry

Temple, Jr., of the Temple Law Firm, PLLC, filed a complaint in

Brunswick County Superior Court on behalf of Plaintiffs seeking

damages for personal injuries against various defendants (“the

underlying lawsuit”). No written contract regarding legal

representation was executed between Temple and Plaintiffs.

Plaintiffs asserted that Temple never discussed his contingency

fee rate with them and Temple himself could not recall doing so,

but Travis Harper, an attorney working for the Temple Law Firm,

testified that Temple did tell Plaintiffs that “their individual

recoveries would be after costs and attorney fees[.]” Temple

did explain that, if he lost the case, he would pay all costs of

the litigation. The underlying lawsuit was designated as

exceptional by the Chief Justice pursuant to Rule 2.1 of the

General Rules of Practice for the Superior and District Courts,

and the Honorable D. Jack Hooks, Jr., was appointed as presiding

judge.

When Plaintiffs first approached Temple in November 2006,

Temple had concerns about the viability of their claims. He was

particularly concerned that the statute of repose for product

liability claims would operate to bar the lawsuit. Two other

attorneys had already declined to take case, and Temple told
 -3-
Plaintiffs he would need to investigate before making a

decision. As the case proceeded, it proved even more complex

and problematic than Temple had anticipated. Early on, Judge

Hooks ruled that all product liability claims were barred by the

applicable statute of repose, and Temple shifted his theory of

the case to an attempt to prove inadequate maintenance of the

sterilization machine. By the time of the first round of

mediation in May 2010, the costs that Temple had incurred in

pursuit of the lawsuit were approximately $150,000, but

Plaintiffs were offered only $270,000 total to settle.

Plaintiffs did receive workers’ compensation benefits and

settlements of several hundred thousand dollars each for their

workers’ compensation claims. During pendency of the

litigation, claims against all defendants except Steris

Corporation and Seal Master Corporation1 were dismissed. Trial

1
Seal Master produced the seals used by Steris in the
manufacture of the sterilization machine which allegedly
malfunctioned. The complaint in the underlying lawsuit refers
to Seal Master as “Seal Master Corporation, aka Sealmaster,
Inc.” Some documents in the record on appeal, including the
order appealed from, refer to this defendant as “Sealmaster.”
The company’s website indicates that its proper name is “Seal
Master Corporation,” and we use that spelling here. See Seal
Master Corporation, http://www.sealmaster.com/ (last visited 18
June 2014).
 -4-
was set for 14 March 2011, and a second round of mediation was

ordered for 2 March 2011.

Temple’s research with two mock juries indicated that

Plaintiffs would likely lose the case based on problems with

Plaintiffs’ credibility and other issues. Consultants working

with Temple urged him to settle, and Temple reached a

confidential settlement with Seal Master before mediation.

During mediation, Temple also reached a confidential settlement

with Steris for an amount the consultants considered

surprisingly high. However, a dispute arose between Plaintiffs

and Temple regarding Temple’s fees and costs. Temple sought 40%

of Plaintiffs’ recovery after costs, and Plaintiffs felt that

percentage was too high. Plaintiffs signed releases of their

claims as to Steris and Seal Master, but due to the fee dispute,

Plaintiffs refused to authorize Temple to deliver the signed

releases or dismiss the underlying lawsuit. Plaintiffs

terminated their relationship with Temple and retained attorney

D. Bree Lorant in early September 2011.

The fee dispute and termination of his services led Temple

to file motions in the underlying lawsuit to intervene and to

recover attorneys’ fees and costs on 5 October 2011. On 11

October 2011, Judge Hooks entered an “Order and Notice of
 -5-
Hearing” stating, inter alia, that claims by Plaintiffs against

Steris and Seal Master had “been announced as settled, but ha[d]

not been dismissed as a number of issues ha[d] arisen beyond the

matters” in the underlying lawsuit. The order specifically

referenced the dispute regarding Temple’s fees. On 26 October

2011, Plaintiffs agreed to dismiss the underlying lawsuit with

prejudice. On 1 November 2011, a consent order was entered to

allow dismissal of all claims against the remaining defendants

as “a full and final settlement of the causes of action” had

been reached in the underlying lawsuit.2 However, the order did

not resolve the fee dispute between Temple and Plaintiffs, and

Temple’s motions in the cause and to intervene remained pending.

On 20 August 2012, Plaintiffs moved to dismiss the matter

or, in the alternative, to stay Temple’s motions.3 On 9 and 10

2
The record on appeal includes notices of voluntary dismissal
with prejudice as to claims against Steris signed by each
plaintiff and dated 2 November 2011. Notices of voluntary
dismissal with prejudice as to Seal Master signed by each
plaintiff are also included in the record. However, although
the notices as to Seal Master are signed by Temple, they do not
bear a file stamp from the superior court.
3
On 17 August 2012, Plaintiffs filed a separate civil action in
Orange County Superior Court against Temple, asserting claims
for constructive fraud, breach of fiduciary duty, duress and
undue influence, negligent infliction of emotional distress, and
declaratory relief. That action was dismissed without prejudice
on 4 November 2013.
 -6-
October 2012, Judge Hooks, under a new commission, held a

hearing on the pending motions. By order entered 7 February

2013, Judge Hooks granted Temple’s motion to intervene, denied

Plaintiffs’ motion to dismiss or stay proceedings, and awarded

Temple reimbursement of certain costs and an attorneys’ fee of

one-third of Plaintiffs’ net recovery in the underlying lawsuit

less the amount of workers’ compensation lien and common costs

payments previously made by Temple. From that order, Plaintiffs

appeal.

Discussion

On appeal, Plaintiffs make eleven arguments: that Judge

Hooks erred in (1) hearing Temple’s claims without having

subject matter jurisdiction, (2) asserting authority over

Plaintiffs without having personal jurisdiction, (3) asserting

authority over Plaintiffs’ settlement funds without having

jurisdiction, (4) hearing and ruling on Temple’s claims which

should have been asserted in a separate action, (5) conducting a

bench trial that deprived Plaintiffs of their due process

rights, right of immediate appellate review, and a fair hearing

on the merits, (6) finding Temple to be a real party in interest

in the underlying action, (7) granting Temple’s motion to

intervene, (8) awarding Temple fees and costs in violation of
 -7-
public policy, (9) awarding Temple fees and costs in violation

of the North Carolina Rules of Professional Conduct, (10)

awarding Temple fees and costs without legal authority, and (11)

reaching conclusions of law that are not supported by the

court’s findings of fact. We affirm.

I. Jurisdiction

In Plaintiffs’ first four arguments, they contend that

Judge Hooks erred in hearing Temple’s claims without having

subject matter jurisdiction, personal jurisdiction over

Plaintiffs, or jurisdiction over Plaintiffs’ settlement funds,

and assert that Temple was required to bring his claims for

costs and fees against Plaintiffs in a separate action. Because

these arguments are related, we consider them together and

reject each contention.

Whether a trial court has subject[]matter
jurisdiction is a question of law, reviewed
de novo on appeal. Subject[]matter
jurisdiction involves the authority of a
court to adjudicate the type of controversy
presented by the action before it.
Subject[]matter jurisdiction derives from
the law that organizes a court and cannot be
conferred on a court by action of the
parties or assumed by a court except as
provided by that law. When a court decides
a matter without the court’s having
jurisdiction, then the whole proceeding is
null and void, i.e., as if it had never
happened. Thus the trial court’s
 -8-
subject[]matter jurisdiction may be
challenged at any stage of the proceedings.

McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592

(2010) (citations and internal quotation marks omitted; italics

added).

Plaintiffs cite In re Transportation of Juveniles for the

proposition that Judge Hooks had subject matter jurisdiction

only over the issues raised in Plaintiffs’ complaint which they

contend did not include Temple’s alleged entitlement to fees for

his services. 102 N.C. App. 806, 808, 403 S.E.2d 557, 558

(1991) (“A court cannot undertake to adjudicate a controversy on

its own motion; rather, it can adjudicate a controversy only

when a party presents the controversy to it, and then, only if

it is presented in the form of a proper pleading. Thus, before

a court may act there must be some appropriate application

invoking the judicial power of the court with respect to the

matter in question.”) (citation omitted). We find that case

easily distinguishable.

There, a district court judge “entered an order [regarding

who would transport juveniles in secure custody to and from

court], ex mero motu and without an action or proceeding having

been filed.” Id. at 807, 403 S.E.2d at 558. We vacated the

order because, “without an action pending before it, the
 -9-
district court was without jurisdiction to enter an order.” Id.

at 808, 403 S.E.2d at 559. Here, in contrast, there was an

action pending before Judge Hooks, to wit, the underlying

lawsuit. As Judge Hooks noted in his order filed 7 February

2013, due to the dispute between Plaintiffs and Temple over

Temple’s costs and fees, the trial court was “unable to have

final dismissals entered” after Plaintiffs and the remaining

defendants reached a settlement. The November 2011 consent

order providing for final dismissal of all pending claims

between Plaintiffs and the remaining defendants pursuant to the

mediated settlement placed the resulting settlement funds with

the Clerk of Superior Court in Brunswick County pending

resolution of the dispute over Temple’s costs and fees.

For the same reason, we also reject Plaintiffs’ assertions

that, once they agreed to dismiss with prejudice their remaining

claims in the underlying lawsuit, (1) Judge Hooks’s “authority

over this matter came to an end and he had no ability to keep

the action alive beyond its natural life[,]” (2) Judge Hooks

lacked jurisdiction over Plaintiffs or the settlement funds, and

(3) Temple was required to bring any claims to recover his costs

and fees in a separate action. As stated above, the consent

order explicitly noted that the matter of Temple’s costs and
 -10-
fees had been raised in the underlying lawsuit and remained

pending after release of the settlement funds to the Clerk.

Further, the trial court here followed the procedures this

Court approved in a remarkably similar case, Guess v. Parrott,

160 N.C. App. 325, 585 S.E.2d 464 (2003). That appeal arose

out of a dispute between attorneys for the
firms of appellant Lloyd T. Kelso &
Associates and appellee Melrose, Seago &
Lay, P.A., as to entitlement to attorneys’
fees stemming from the underlying case. The
underlying case involved an automobile
accident . . . in which [the] plaintiff
Johnny Robert Guess, Jr., was injured when
his vehicle collided with a tractor-trailer
driven by [the] defendant Terry Anthony
Parrott.

Shortly after the accident, [the]
plaintiff’s father and brother . . .
contacted the appellee law firm of Melrose,
Seago & Lay, P.A., and made arrangements
with Randal Seago to represent [the]
plaintiff. [The] plaintiff and Randal Seago
entered into a contingency fee agreement in
which [the] plaintiff promised to pay
appellee one-third of any recovery.
Further, [the] plaintiff would reimburse
appellee for expenses and costs advanced by
it.

Mr. Seago went about the task of
representing [the] plaintiff. He filed a
complaint . . . . The parties negotiated at
mediation, . . . . [but] a settlement could
not be reached . . . . Therefore, this
matter went to trial . . . [with] a mistrial
[eventually] declared.
 -11-
Following the unsuccessful trial, Seago and
other attorneys at appellee law firm were
involved in negotiations with their client,
[the] plaintiff, and [the] defendants. . . .

[The p]laintiff became dissatisfied with the
representation provided to him by appellee
law firm and informed them of such.
Acceding to [the] plaintiff’s wishes,
appellee filed a motion to withdraw [which
was granted]. . . .

Thereafter, [the] plaintiff secured the
services of appellant Lloyd Kelso of Lloyd
T. Kelso & Associates. [The p]laintiff
entered into a contingency fee agreement
with Kelso, promising to pay 35% of the
amount recovered. . . .

The parties were ordered into mediation and
eventually settled [the] plaintiff’s case
. . . . The attorneys’ fees issue was not
resolved in mediation.

Id. at 326-27, 585 S.E.2d at 465-66. The “appellee filed a

motion [in the underlying case] requesting a portion of the

attorneys’ fees . . . .” Id. at 327, 585 S.E.2d at 466.

Following a bench trial, the trial court entered an order

awarding (1) costs to each law firm, (2) “the reasonable value

of its services in quantum meruit . . . from the contingency fee

funds generated by the successful settlement” to appellee, and

(3) “the remaining funds from the generated fee” to appellant.4

4
“[T]he theory of ‘quantum meruit,’ an equitable remedy, . . .
is defined by Black’s Law Dictionary to mean ‘as much as
 -12-
Id. at 329, 585 S.E.2d at 467 (italics added). On appeal,

appellant argued, inter alia, that appellee’s motion had failed

to state a claim upon which relief could be granted and that the

trial court erred in resolving the fee dispute via a bench trial

rather than before a jury. Id.

This Court held that “a claim by an attorney who has

provided legal service pursuant to a contingency fee agreement

and then [been] fired has a viable claim in North Carolina in

quantum meruit against the former client or its subsequent

representative” and that the filing of a motion in the

underlying action, as Temple did here, was a proper procedure

for asserting such a claim. Id. at 331, 585 S.E.2d at 468

(italics added). We further concluded that

[t]he apportionment of attorneys’ fees among
the various lawyers who have represented a
party has not been regulated by statute and
is therefore within the province of the
trial court. Accordingly, appellant had no
right to have the reasonable value of
appellee’s services determined by a jury, as
this issue is committed to the sound
discretion of the trial court.

deserved.’” Id. at 332, 585 S.E.2d at 469 (italics added).
“Quantum meruit is a measure of recovery for the reasonable
value of services rendered in order to prevent unjust
enrichment.” Paul L. Whitfield, P.A. v. Gilchrist, 348 N.C. 39,
42, 497 S.E.2d 412, 414 (1998).
 -13-
Id. at 334, 585 S.E.2d at 470. Indeed, the Guess court observed

that the trial judge in the underlying matter is “in the best

position to make the determination of ability and skill of the

parties, as well as to the difficulty of the case.” Id. at 337,

585 S.E.2d at 472.

We see no meaningful distinction between the circumstances

in Guess and those presented here.5 As in Guess, the dismissed

attorney filed a motion in the underlying action seeking to

recover fees in quantum meruit, and the trial court conducted a

5
We are not persuaded by Plaintiffs’ suggestion that the holding
in Guess does not apply here because Plaintiffs had not entered
into a written contract for Temple’s legal services. It is
well-established that “recovery in quantum meruit is appropriate
only where an implied contract exists, and that, where an
express contract concerning the same subject matter is found, no
contract will be implied.” Carolantic Realty, Inc. v. Matco
Group, Inc., 151 N.C. App. 464, 471, 566 S.E.2d 134, 139 (2002)
(citation and internal quotation marks omitted). Here, it was
the very lack of a written agreement which led to the dispute
over Temple’s fees, leaving Plaintiffs and Temple with nothing
but an implied contract regarding his entitlement to a
percentage of Plaintiffs’ recovery. Temple’s representation of
Plaintiffs having been terminated prior to finalization of the
settlement of the underlying lawsuit, even had there existed a
valid written contingency fee contract between Temple and
Plaintiffs, Temple could not have collected his contractual fee
under it. Rather, he would have had to proceed in quantum
meruit, exactly as he did here. See Guess, 160 N.C. App. at
332-33, 585 S.E.2d at 469 (“Under current North Carolina law, .
. . an attorney, working pursuant to a contingency fee contract,
who is discharged without cause by his or her client, is
entitled to recover the reasonable value of his or her services
[in quantum meruit].”).
 -14-
bench trial to resolve the dispute. Accordingly, we overrule

Plaintiffs’ arguments regarding Judge Hooks’s jurisdiction over

the issue of Temple’s fees, over Plaintiffs, and over the

settlement funds, and we reaffirm that an attorney may properly

bring a claim for fees in quantum meruit against a former client

by the filing of a motion in the underlying action to be

resolved by the trial court via a bench trial.

II. Intervention

Plaintiffs also argue that the trial court erred in various

ways in its handling of Temple’s motion to intervene: that (1)

the trial court was required to rule on the motion to intervene

before reaching the merits of the fee dispute, (2) the motion to

intervene was untimely because it was not heard until five and

one-half years after the filing of the complaint, and (3) Temple

was not entitled to intervene as a matter of right.

As discussed supra, nothing in Guess indicates that a

motion to intervene was filed by the appellee in that case;

rather, this Court made clear that a dismissed attorney seeking

legal representation costs and fees, like Temple, could pursue

his claims against his former clients, like Plaintiffs, by the

filing of a motion in the cause. See id. at 331, 585 S.E.2d at

468. Accordingly, both the motion to intervene and the
 -15-
allowance of that motion in the 7 February 2013 order were

wholly unnecessary to permit Judge Hooks to reach and resolve

the merits of Temple’s motion in the cause. Thus, even assuming

arguendo that Judge Hooks did err in ruling on the motion to

intervene, any such error would be of no consequence to his

resolution of the fee dispute in his 7 February 2013 order.

Accordingly, we need not consider Plaintiffs’ arguments

regarding the motion to intervene.

III. Public Policy

Plaintiffs also argue that the award of fees and costs to

Temple was contrary to public policy in that the award was in

violation of Rule 1.5(c) of the North Carolina Rules of

Professional Conduct (“the Rules”), which provides that “[a]

contingent fee agreement shall be in a writing signed by the

client and shall state the method by which the fee is to be

determined, including the percentage or percentages that shall

accrue to the lawyer . . . .” Revised Rules of Professional

Conduct of the North Carolina State Bar, Rule 1.5(c) (2012). We

are not persuaded.

The “breach of a provision of the [Rules] is not in and of

itself . . . a basis for civil liability.” Baars v. Campbell

Univ., Inc., 148 N.C. App. 408, 421, 558 S.E.2d 871, 879 (2002)
 -16-
(citations and internal quotation marks omitted). However,

Plaintiffs contend that, because the Rules are adopted by our

Supreme Court, Beard v. The North Carolina State Bar, 320 N.C.

126, 129-30, 357 S.E.2d 694, 696-97 (1987), they constitute a

statement of public policy. In turn, Plaintiffs contend that to

award Temple costs and fees in quantum meruit violates the

public policy requiring that contingency fees be in writing as

stated in Rule 1.5(c). See, e.g., Cansler v. Penland, 125 N.C.

578, 579-80, 34 S.E. 683, 683-84 (1899) (holding that a contract

which violates public policy is void and unenforceable).

However, the plain language of the Rules makes clear that

the

[v]iolation of a Rule should not give rise
itself to a cause of action against a lawyer
nor should it create any presumption in such
a case that a legal duty has been breached.
In addition, violation of a Rule does not
necessarily warrant any other
nondisciplinary remedy . . . . The [R]ules
are designed to provide guidance to lawyers
and to provide a structure for regulating
conduct through disciplinary agencies. They
are not designed to be a basis for civil
liability. Furthermore, the purpose of the
Rules can be subverted when they are invoked
by [the] opposing parties as procedural
weapons. . . . Accordingly, nothing in the
Rules should be deemed to augment any
substantive legal duty of lawyers or the
extra-disciplinary consequences of violating
such a Rule.
 -17-
Revised Rules of Professional Conduct of the North Carolina

State Bar, Rule 0.2[7] (emphasis added). Indeed, the comments

to Rule 1.5 itself explicitly provide that a trial court’s

“determination of the merit of the petition or the claim [for

attorney costs and fees] is reached by an application of law to

fact and not by the application of this Rule.” Revised Rules of

Professional Conduct of the North Carolina State Bar, Rule 1.5,

Comment 12 (emphasis added).

Plaintiffs cite several cases from this State in support of

the proposition that

there can be no recovery here on quantum
meruit or otherwise. Thompson v. Thompson,
313 N.C. 313, 314-15, 328 S.E.2d 288, 290
(1985) (if there can be no recovery on a
contract because of its repugnance to public
policy, there can be no recovery on quantum
meruit); Richardson v. Bank of Am., N.A. 182
N.C. App. 531, 563, 643 S.E.2d 410, 430
(2007) (same); In Re: Cooper, 81 N.C. App.
27, 41, 344 S.E.2d 27, 36 (1986) (same);
Townsend v. Harris, 102 N.C. App. 131, 132,
401 S.E.2d 132 (1991).

We do not find Plaintiffs’ arguments to have merit.

We note that each of the cases cited by Plaintiffs concerns

violations of public policy regarding the content of contracts

rather than their form. See Thompson, 313 N.C. at 314, 328

S.E.2d at 290 (noting in dicta that a “contingent fee contract

for legal services to be rendered in connection with matters
 -18-
arising out of the domestic difficulties between [a husband and

wife] was void and unenforceable exclusively by virtue of the

fact that it violated the public policy of this State”);

Townsend, 102 N.C. App. at 132, 401 S.E.2d at 133 (same); In Re:

Cooper, 81 N.C. App. at 29, 344 S.E.2d at 29 (“[A]lthough a

contingent-fee contract in a divorce, alimony, or child support

proceeding is void, . . . a separate contingent-fee contract in

an equitable distribution proceeding may be fully enforceable.”)

(citation omitted); Richardson, 182 N.C. App. at 563, 643 S.E.2d

at 430 (noting that “the sale of [single-premium credit

insurance] with loans greater than fifteen years [i]s void as

against public policy”).

As for Thompson, the primary case cited and relied upon by

Plaintiffs as “controlling” on the outcome of this appeal, the

only issue actually decided by our Supreme Court in that opinion

was whether an order allowing intervention can be upheld when

the underlying contract in the case has been declared void and

unenforceable:

The Court of Appeals held that the
contingent fee contract for legal services
to be rendered in connection with matters
arising out of the domestic difficulties
between Ms. Thompson and her husband was
void and unenforceable exclusively by virtue
of the fact that it violated the public
policy of this State. Review of that
 -19-
decision has not been sought and therefore
the validity of that decision is not before
us.

The opinion of the Court of Appeals on that
point is the law of this case as it now
stands before us. The contract being void,
intervenors had no interest in the property
or the transaction that was the subject of
Ms. Thompson’s suit. There was, therefore,
no basis for the order allowing
intervention. The Court of Appeals should
have, therefore, vacated the order allowing
intervention and dismissed the intervenors
from that suit. It erred in not doing so.

Although in view of our disposition of the
case a decision on the point is not
necessary, we note that it is generally held
that if there can be no recovery on an
express contract because of its repugnance
to public policy, there can be no recovery
on quantum meruit.

The opinion of the Court of Appeals
remanding the case for determination of the
reasonable value of the services rendered
prior to 16 February 1981, the date the
attorneys were discharged, is reversed. The
case is remanded to the Court of Appeals for
remand to the District Court of Henderson
County for an order vacating the order
allowing intervention and for the entry of
an order dismissing the action filed by the
intervenors against Ms. Thompson.

313 N.C. at 314-15, 328 S.E.2d at 290 (citations omitted;

emphasis added). Thus, as the Supreme Court explicitly

acknowledged, its observations regarding quantum meruit were
 -20-
purely dicta. Id. Plainly, then, Thompson is not controlling

on that point.

In the opinion of this Court which was reversed the Supreme

Court, wherein we considered as a matter of first impression

whether contingent fees in domestic cases violated public

policy, several policy considerations were cited, including “(1)

the recognition that these contracts tend to promote divorce and

(2) the lack of need for such contracts under modern domestic

relations law [which provide adequate mechanisms for recovery of

attorneys’ fees by dependent spouses].” Thompson v. Thompson,

70 N.C. App. 147, 155, 319 S.E.2d 315, 320 (1984).6 Of course,

6
In an unfortunate reflection of the paternalism of the times,
this Court also noted a third public policy which domestic
contingent fee contracts would violate:

Wives contemplating divorce are often
distraught and without experience in
negotiating contracts. Should contingent
fee contracts between them and the attorneys
they employ under such conditions become the
usual fee arrangement, charges of
overreaching and undue influence will be all
too frequent. The public, the legal
profession, and the bench would all suffer.
We believe all will benefit by maintaining
the present public policy of not enforcing
such contracts no matter how freely and
fairly entered into and how reasonable may
be the fee thereby produced. The wise
discretion of capable and experienced trial
judges (aided by the evidence placed before
 -21-
neither of these policy considerations is implicated here, and

as discussed supra, the Rules explicitly state they are not

intended to resolve disputed attorneys’ fees.

On the other hand, case law from this Court and our Supreme

Court makes clear that “an agent or attorney, [even] in the

absence of a special contract, is entitled to recover the amount

that is reasonable and customary for work of like kind,

performed under like conditions and circumstances.” Forester v.

Betts, 179 N.C. 681, 682, 103 S.E. 209, 209 (1920); see also

Williams v. Randolph, 94 N.C. App. 413, 380 S.E.2d 553 (1989)

(holding that an attorney could recover a reasonable fee even

though the attorney and client had no written or oral

contingency fee agreement). Indeed, the fact that an agreement

for legal representation was determined “to be in violation of

the Rules of Professional Conduct and unenforceable is of no

consequence” where an attorney’s right of recovery arises in

them by the parties prior to the time the
court fixes the fee to be paid by the
husband) can be relied upon to assure every
attorney an adequate fee and thus assure
every wife adequate representation.

Id. at 156, 319 S.E.2d at 321 (citation and internal quotation
marks omitted). Needless to say, the stereotypes and
assumptions which underlie this supposed justification can no
longer be considered the public policy of our State.
 -22-
quantum meruit, because the trial court’s award of fees is based

“upon the reasonable value of [the attorney’s] services” and not

upon the failed agreement. Crumley & Assocs., P.C. v. Charles

Peed & Assocs., P.A., __ N.C. App. __, __, 730 S.E.2d 763, 766

(2012). We can find no meaningful distinction between the

circumstances presented in this appeal and those in Crumley &

Assocs., P.C., a case which Plaintiffs fail to cite, let alone

distinguish.

In sum, the Rules, precedent from our Supreme Court, and

decisions by previous panels of this Court all reject the

argument made by Plaintiffs here. See In re Appeal from Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a

panel of the Court of Appeals has decided the same issue, albeit

in a different case, a subsequent panel of the same court is

bound by that precedent, unless it has been overturned by a

higher court.”). Accordingly, Plaintiffs’ argument is

overruled.

IV. Mathematical errors

In their final argument, Plaintiffs contend that conclusion

of law 5 of the 7 February 2013 order, stating the total amount

of Temple’s petitioned-for costs which it was disallowing, is

not supported by finding of fact 46, which describes certain
 -23-
costs charged to Temple as a sanction for his actions during

discovery. However, a careful reading of Plaintiffs’ argument

and the record before us reveals that Plaintiffs are actually

contending that the court abused its discretion in determining

the sanction to impose. We disagree.

It is well-settled that Rule 37 [of the
North Carolina Rules of Civil Procedure]
allowing the trial court to impose sanctions
is flexible, and a broad discretion must be
given to the trial judge with regard to
sanctions. Our Supreme Court has stated
that a ruling committed to a trial court’s
discretion is to be accorded great deference
and will be upset only upon a showing that
it was so arbitrary that it could not have
been the result of a reasoned decision.

Rose v. Isenhour Brick & Tile Co., 120 N.C. App. 235, 240, 461

S.E.2d 782, 786 (1995) (citations, internal quotation marks, and

some brackets omitted), affirmed, 344 N.C. 153, 472 S.E.2d 774

(1996).

At the hearing on Temple’s motion in the cause, the trial

court asked Temple about an incident during discovery when

Temple failed to timely disclose a change in certain experts he

intended to call. As a result, the trial court had sanctioned

Temple by requiring that he pay the costs of deposing the newly

disclosed witnesses rather than shifting those costs to

Plaintiffs. At the motion hearing, Temple acknowledged the
 -24-
sanction, and, when the court asked Temple what the amount of

the sanction was, Temple responded, “[$]28,000.”

Later during the hearing, the following exchange occurred

between Temple and one of his attorneys:

Q[.] Now, did you undertake to prepare
separate schedules to identify those
deposition expenses that were incurred for
the deposition of the plaintiffs’ experts
that Judge Hooks ordered be borne by the
Temple Law Firm?

A[.] Yes.

. . . .

Q[.] I show you two separate exhibits, [38]
and [39]. Look at those and tell us what
those are, please.

A[.] Exhibit Number [38] lists out the
plaintiff expert deposition expenses of
fees, transcripts, and videographer
expenses. And [39] lists out their
plaintiff expert deposition travel expenses.

Q[.] Okay. So [38] includes both the
deposition testimony time as well as the
deposition transcript and video charges, is
that correct, for each of those plaintiff
experts that the Temple Law Firm was ordered
to pay for; is that correct?

A[.] Yes, that’s my understanding.

Q[.] Okay. And then Exhibit [39] represents
the travel — well, tell us what [39]
represents.
 -25-
A[.] It represents the expenses that the
experts incurred to travel to the
depositions listed on the chart.

Q[.] Okay. And so what are the total
expenses for the experts, their deposition
testimony and their transcripts and videos,
as reflected on Exhibit [38]?

A[.] $21,686.05.

Q[.] Okay. And what are the total travel
expenses incurred by those experts to give
those depositions, as reflected on Exhibit
[39]?

A[.] $6,630.75.

As Plaintiffs note, the total of the expenses listed in the two

exhibits is $28,316.80, an amount quite close to the figure

Temple himself provided in response to the court’s question

early in the hearing. However, in finding of fact 46 of the 7

February 2013 order, the trial court disallowed only a portion

of that total amount:

46. As a result of the manner in which
[P]laintiffs’ counsel disclosed and then
changed experts, the [trial c]ourt as a
sanction required the costs of deposing
newly disclosed experts (by Plaintiffs) be
paid by [P]laintiffs[’] counsel. Those
costs were as follows:

$ 750.00: Cynthia Wilhelm Deposition fee
$ 2,000.00: Ward Zimmerman Deposition fee
$ 2,800.00: Fred Hetzel Deposition fee
8/26/10
$ 2,800.00: Fred Hetzel Deposition fee
11/3[/]10
 -26-
$ 3,500.00: Fred Hetzel Deposition fee
11/9/10
$ 755.33: Ward Zimmerman Deposition related
charges[]
$ 1,364.67: Fred Hetzel deposition expenses
$ 986.41: Jim Dobbs Depo travel expenses
$ 543.84: Jim Dobbs Depo travel expenses
Total: $15,500.25

As it was always the intent of the [trial
c]ourt that counsel bear this expense, it
should not be allowed to be shifted to
[P]laintiffs.

As noted supra, “broad discretion must be given to the trial

judge with regard to sanctions” and such a determination will

not be upset absent “a showing that it was so arbitrary that it

could not have been the result of a reasoned decision.” Id.

While Temple’s testimony and exhibits 38 and 39 reflected costs

of approximately $28,000 connected with the newly disclosed

experts, the trial court itself never stated the exact amount of

the expenses it planned to shift to Temple as a sanction. After

reviewing the exhibits, the court, in its discretion, apparently

decided that only some of those costs would be borne by Temple.

Given the specificity of finding of fact 46 in breaking down and

listing the specific expenses to be included in the sanction, we

see no abuse of the trial court’s discretion. We explicitly

reject Plaintiffs’ assertion that the trial court was required

to provide an “explanation as to why the additional $12,816.55
 -27-
[was] not included.” Finding of fact 46 contains an entirely

sufficient explanation of the court’s decision to sanction

Temple. This argument is overruled.

The 7 February 2013 order is

AFFIRMED.

Judges ERVIN and MCCULLOUGH concur.