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Booher v. Frue6/5/1990
The sole question here is whether the court erred in granting defendant Payne's motion for summary judgment. Under G.S. 1A-1, Rule 56(c), defendant is entitled to summary judgment if the record shows "that there is no genuine issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law." "In ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party." Hinson v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986). After careful review of the record we reverse the entry of summary judgment in favor of Payne and remand for trial.
The relationship between attorney and client is a fiduciary relationship. The existence of a fiduciary relationship and its breach are the bases for plaintiffs' claims of constructive fraud (recovery of actual damages) and constructive trust (recovery for unjust enrichment or restitution). The question here is whether there is a genuine issue of fact regarding the existence of an attorney-client relationship between plaintiffs and Payne at the time the referral fee arrangement was made. Defendant Payne contends there is no attorney-client relationship with Booher or Brown and points to plaintiffs' depositions for support.
" he relation of attorney and client may be implied from the conduct of the parties, and is not dependent on the payment of a fee, nor upon the execution of a formal contract. . . . The dispositive question . . . whether defendant [attorney's] conduct was such that an attorney-client relationship could reasonably be inferred." North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325, cert. denied, 314 N.C. 117, 332 S.E.2d 482 (1985) (citations omitted). Payne argues that the plaintiffs' depositions reveal a total disavowal of any confidential or fiduciary relationship between plaintiffs and Payne and that plaintiffs are bound
by their testimony. See Woods v. Smith, 297 N.C. 363, 255 S.E.2d 174 (1979); Cogdill v. Scates, 290 N.C. 31, 224 S.E.2d 604 (1976). Payne's reliance on the cited cases is misplaced.
In Woods, the Supreme Court stated that "a party's statements, given in a deposition or at trial of the case, are to be treated as evidential admissions rather than as judicial admissions." Woods, 297 N.C. at 373-74, 255 S.E.2d at 181. The Court went on to state that
when a party gives adverse testimony in a deposition or at trial, that testimony should not, in most instances, be conclusively binding on him to the extent that his opponent may obtain either summary judgment or a directed verdict. Two exceptions to this general rule should be noted, however. First, when a party gives unequivocal, adverse testimony under factual circumstances such as were present in Cogdill, his statements should be treated as binding judicial admissions rather than as evidential admissions. Second, when a party gives adverse testimony, and there is insufficient evidence to the contrary presented to support the allegations of his complaint, summary judgment or a directed verdict would in most instances be properly granted against him.
Id. at 374, 255 S.E.2d at 181 (emphasis in original). On the record before us, because neither of the two exceptions apply, we conclude that summary judgment in favor of Payne was improperly entered.
First, the testimony here is unlike that in Cogdill. In
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