McGee v. Eubanks

335 S.E.2d 178 (1985)

Bonnie Davis McGEE
v.
Larry L. EUBANKS and Deborah A. Eubanks
v.
Curtis Keith McGEE.

No. 8521SC50.

Court of Appeals of North Carolina.

October 15, 1985.

Randolph and Tamer by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff-appellant.

Wilson, Degraw, Johnson & Miller by Dan S. Johnson, Winston-Salem, for defendants-appellees.

JOHNSON, Judge.

The questions presented by appellant primarily focus on whether the trial court's findings of fact were supported by the evidence presented. Ms. McGee's additional assignments of error raise the question of whether attorney Eubanks may be held strictly liable for a breach of DR 9-102 of the Code of Professional Responsibility.

The pertinent findings of fact to which Ms. McGee takes exception are as follows:

17. On November 5, 1982, the plaintiff and the defendant Larry Eubanks, expected that the following events would take place upon authorization, and the plaintiff's authorization was granted on these conditions.

(a) That Eubanks would ``protect the $9,000.00' and pay it to the plaintiff when the draft was cashed by Welborn;

(b) That Eubanks would receive his $3,000.00 when the draft was cashed;

(c) [T]he sum of $7,500 would represent a loan to defendant McGee from the plaintiff McGee;

(d) That $7,500 sum would be used to repay Phillip McGee for his interest in the Belews Creek Road homeplace of the plaintiff arising out of the June transaction with his brother;

(e) That the third party defendant [Curtis Keith McGee] would receive from Garvie Welborn, when the draft was cashed, the sum of $20,000.00 representing the purchase price, down payment on McGee's house arising out of his agreement with his mother for the sale of his house.

In the review of an appeal from a trial court judgment without a jury, we are bound by several salient principles. The cardinal principle is that "... the court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975). Ms. McGee asserts that there is insufficient evidence to support the trial court's findings of fact. "The findings of the court will not be reviewed if there is any competent evidence in the record to support them." Wachovia Bank & Trust Co. v. Bounous, 53 N.C.App. 700, 706, 281 S.E.2d 712, 715 (1981) (emphasis added).

In the case sub judice the evidence supporting finding of fact 17 tended to show that Ms. McGee authorized attorney Larry Eubanks to distribute the insurance funds. In most instances where Ms. McGee has assigned error to the court's findings of fact it was her own testimony which supported the court's findings. Ms. McGee testified that "... at that time, he [Larry L. Eubanks] was to have his $3,000.00, send me a check for nine, and give Keith the twenty for the house plus seven thousand—it was a little over seven thousand he was to give Keith—and Keith was to owe me." There are several other excerpts from Ms. McGee's testimony which support the court's finding that Larry Eubanks was to protect $9,000 for her. Larry Eubanks also testified that Ms. McGee instructed him to keep her $9,000, whereupon he agreed to "protect the $9,000" on her behalf. We conclude there is ample evidence in the record to support the court's finding that at Ms. McGee's request attorney Eubanks was to "protect" $9,000 for her.

The evidence in the record supports the court's findings that it was Curtis Keith McGee who received $12,000 the day the draft was cashed. Garvie Welborn's testimony along with testimony by Larry Eubanks conclusively established this fact.

The court found that Ms. McGee authorized the draft to be cashed with the knowledge that Garvie Welborn had insufficient funds to tender the full amount of the draft; therefore, Curtis Keith McGee would receive the cash that Mr. Welborn tendered. These findings are borne out by Larry Eubanks' testimony with respect to a telephone conversation between him and Ms. McGee about the state of Ms. McGee's affairs.

Ms. McGee also excepted to the court's finding of fact that the sum of $7,500 would represent a loan to Curtis Keith McGee. As pointed out earlier, Ms. McGee testified that "Keith was to owe me," which supports the trial court's finding.

Testimony with respect to Ms. McGee's purported revocation of authority for the draft to be cashed by Welborn tends to show that the insurance draft had already cleared. Again, Ms. McGee testified that she spoke with Larry Eubanks concerning the transaction "either before the draft cleared or the day." (emphasis added). However, Larry Eubanks' testimony specifically places the conversation with Ms. McGee in the evening after the draft was cashed. Thus, the trial court could reasonably find as a fact that the authorization was still in effect at the time the draft was cashed.

Plaintiff's next assignment of error is that the trial court erred by not concluding as a matter of law that Larry Eubanks violated DR9-102 of the Code of Professional Responsibility of the North Carolina State Bar. The relevant portion of DR9-102(A) provides "[a]ll funds of clients ... other than advances for costs and expenses shall be deposited in one or more identifiable bank accounts" separate from the attorney's business and personal accounts. DR9-102(A), Code of Professional Responsibility. However, the preliminary statement to the Code states "[t]he code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct." Code of Professional Responsibility, Preliminary Statement (emphasis added). Thus, assuming arguendo that Larry Eubanks had breached DR9-102 of the Code of Professional Responsibility of the North Carolina State Bar, that breach in and of itself would not be a basis for civil liability. "... [D]isciplinary rules are derived from ethical rather than legal principles.... [a]nd most rules of law are derived ultimately from ethical principles. But before an ethical principle can serve as a satisfactory source for legal rules, it must be accepted as a legal principle." Patterson, A Preliminary Rationalization of The Law of Legal Ethics, 57 N.C.L.Rev. 519, 525 (1979). Accordingly, we conclude that the trial court did not err in refusing to find as a matter of law that Larry Eubanks could be held liable for a violation of the disciplinary rules.

Ms. McGee's next contention is that the trial court erred by dismissing her claim against defendant Deborah A. Eubanks. The trial court made findings of fact that Deborah Eubanks advised her husband Larry Eubanks that Curtis Keith McGee had not procured Ms. McGee's signature on the release. Upon being informed of this, Ms. McGee authorized Deborah A. Eubanks to notarize the release form. In North Carolina a notary public is a public officer. Nelson v. Comer, 21 N.C. App. 636, 205 S.E.2d 537 (1974). Absent allegations of malice or corruption a notary may not be held liable for acts within her scope of duties. Id. Though there were allegations of fraud, there was, as a matter of law, insufficient evidence to support a conclusion that Ms. Eubanks conspired to defraud Ms. McGee. We conclude that the evidence supports the trial court's findings and the findings support the judgment against defendant.

Affirmed.

EAGLES and PARKER, JJ., concur.