dissenting.
While I agree with the majority’s conclusion that the doctrine of collateral estoppel would prevent Plaintiff Sharon A. Keyes (“Plaintiff’) from asserting she was entitled to relief based on a breach of contract claim, I believe that there is a genuine issue of material fact as to whether Plaintiff could recover the value of her services she provided up until the time the Clerk’s order removing her as attorney was finalized under the theory of quantum meruit. Therefore, I respectfully dissent.
On 21 August 2009, Plaintiff entered into a contract with Nelson Currin (“Mr. Currin”) to represent him during incompetency proceedings. Plaintiff also purportedly represented Mr. Currin’s wife, Coma Lee Currin (“Ms. Currin”), which is evidenced by a nondated “Waiver of Conflict” stating that both Mr. and Ms. Currin have “asked [Plaintiff] to represent [the Currins] jointly in connection with the Petition for Adjudication of Incompetence and Appointment of Guardian filed against [Mr. Currin] . . . .” The “Waiver,” which was signed by both Mr. and Ms. Currin, asserted that they had each agreed to waive any conflict of interest that may arise out of Plaintiff’s representation of them during the incompetency proceedings. Plaintiff made several appearances of record and appealed various actions of the court on behalf of the Currins.
Prior to the incompetency hearing, a hearing was held on 12 November 2009 before the Harnett County Assistant Clerk of Superior Court (“the Clerk”) regarding a jurisdictional issue and on a motion to remove Plaintiff and Matthew Vaughn (“Vaughn”), another attorney also purporting to represent the Currins, as the attorneys of record. The motion to remove was filed by several of Mr. Currin’s children who were also the petitioners in the incompetency proceedings. Based on the evidence presented at the hearing', the Clerk made the following conclusions of law:
*4421. That [Plaintiff and Vaughn] have an irreconcilable conflict of interest in representing both [Mr. and Ms. Currin],
2. That even if said conflict could be waived, [Mr. Currin] is not capable of executing a knowing waiver of said conflict.
The Clerk granted the motion to remove Plaintiff.
On 20 January 2011, Plaintiff filed a complaint against Defendant W. Glenn Johnson (“Defendant”), the guardian of Mr. Currin’s estate who was appointed by the court at the incompetency hearing, alleging that she was entitled to attorney fees based on the contract she had with Mr. Currin and asserting a breach of contract claim. Defendant filed a motion for summary judgment on 15 June 2011 and argued that: (1) Plaintiff should have known that Mr. Currin was incapable of waiving any conflict of interest, and (2) Plaintiff was precluded from asserting a claim for breach of contract based on the doctrines of collateral estoppel and judicial estoppel. The matter came on for hearing before Special Superior Court Judge Lucy N. Inman on 22 August 2011. On 26 August 2011, the trial court granted Defendant’s motion for summary judgment and dismissed Plaintiff’s claim against Defendant with prejudice. Plaintiff filed a Notice of Appeal from the trial court’s order granting Defendant’s motion for summary judgment on 20 September 2011 to this Court.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). “[0]n amotion for summary judgment the burden of proving that there is no genuine issue as to any material fact is on the movant, and if he fails to carry that burden, summary judgment is not proper, whether or not the nonmoving party responds.” Goodman v. Wenco Foods, Inc., 333 N.C. 1, 27, 423 S.E.2d 444, 457 (1992). “The party opposing the motion for summary judgment does not have to establish that he would prevail on the issue, but merely that the issue exists.” Gregorino v. Charlotte-Mecklenburg Hosp. Auth., 121 N.C. App. 593, 595, 468 S.E.2d 432, 433 (1996).
“ [Collateral estoppel precludes the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.” Whiteacre P’ship v. Biosignia, Inc., *443358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). As the majority notes, and I agree, based on the doctrine of collateral estoppel, Plaintiff is precluded from now arguing that she is entitled to attorney fees based on a breach of contract claim because the Clerk has already determined that the contract between herself and Mr. Currin is unenforceable due to the their irreconcilable conflict, the ineffective waiver, and his incapacity to contract. In other words, the Clerk has already determined that the contract is unenforceable, and Plaintiff may not now allege a breach of this contract. Thus, if this was Plaintiffs only avenue to recover attorney fees, summary judgment would be proper since the contract between Plaintiff and Mr. Currin is unenforceable due to the irreconcilable conflict; the ineffective waiver, and Mr. Currin’s inability to enter into a contract.
However, since the contract is no longer valid, I believe Plaintiff may be entitled to attorney fees under a theory of quantum meruit. “Quantum meruit is an equitable principle that allows recovery for services based upon an implied contract.” Paxton v. O.C.F., Inc., 64 N.C. App. 130, 132, 306 S.E.2d 527, 529 (1983). “To recover in quantum meruit, [a] plaintiff must show: (1) services were rendered to defendants; (2) the services were knowingly and voluntarily accepted; and (3) the services were not given gratuitously.” Envtl. Landscape Design Specialists v. Shields, 75 N.C. App. 304, 306, 330 S.E.2d 627, 628 (1985).
Here, Plaintiff may be entitled to equitable relief under quantum meruit because, based on the allegations in her complaint and her testimony at the summary judgment hearing, she knowingly and voluntarily provided services to Mr. Currin based on what she believed was an enforceable contract. Therefore, the record is sufficient to establish a claim for quantum meruit and establish that a genuine issue of material fact exists. While “recovery in quantum meruit is not, in any event, available when . . . there is an express contract” or “actual agreement[,]” the contract and the agreement in the present case has already been found unenforceable by the Clerk. Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 328, 595 S.E.2d 759, 765 (2004); Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 415 (1998). Thus, there is no express contract between Plaintiff and Mr. Currin. Furthermore, even though Plaintiff based her complaint on a breach of contract claim and did not specifically plead she was entitled to attorney fees under the theory of quantum meruit, the trial court has the authority to award a party the reasonable value of her services under the theory of quantum meruit. See Paxton, 64 N.C. *444App. at 133-34, 306 S.E.2d at 529-30 (affirming the trial court’s holding that the plaintiff was entitled to recover in quantum meruit even though plaintiff did not specifically plead it in her complaint but instead alleged the existence of an express contract).
Because Plaintiff’s complaint may entitle her to relief under quantum meruit, a genuine issue of material fact existed, and I believe the trial court erred in holding Defendant was entitled to judgment as a matter of law. The burden is on the moving party to show that no genuine issue of material fact existed, and I believe Defendant failed to meet this burden since Plaintiff’s complaint established a potential claim for quantum meruit. Thus, I am persuaded the trial court should have denied Defendant’s motion.
A person who is alleged to be incompetent should be able to hire an attorney of his choice to represent him in incompetency proceedings. I believe that the potential for an attorney to be precluded from attempting to collect attorney fees based on that representation once a person is found incompetent and, thus, unable to contract, would have a chilling effect on that process. However, I am persuaded that the equitable relief that may be available to an attorney under the theory of quantum meruit would circumvent that effect and prevent other attorneys from finding themselves in the position Plaintiff is now in. My dissent is primarily premised on my belief that those who' need representation in incompetency hearings will be unable to find it if our courts hold that the person’s ultimate adjudication as incompetent would prevent an attorney from collecting attorney fees.
Despite the fact that collateral estoppel prevents Plaintiff from asserting a breach of contract claim, I believe that Plaintiff’s complaint establishes a genuine issue of material fact as to whether she is entitled to equitable relief up until the time the Clerk’s order was finalized under the theory of quantum meruit. Therefore, I would reverse the trial court’s grant of summary judgment.