Guess v. Parrott9/16/2003
ction fails to meet these criteria and hence a right to trial by jury is not constitutionally protected, it can still be created by statute.
Id. at 507-08, 385 S.E.2d at 490 (citations omitted).
Appellee argues that it is entitled to reasonable compensation under the theory of "quantum meruit," an equitable remedy, which is defined by Black's Law Dictionary to mean "as much as deserved." Black's Law Dictionary, 1243 (6th ed. 1990). Under current North Carolina law, discussed above, 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. This is the so-called "modern rule." See Covington, 38 N.C. App. at 64, 247 S.E.2d at 308; see also George L. Blum, Annotation, Limitation to Quantum Meruit Recovery, Where Attorney Employed Under Contingent-Fee Contract is Discharged Without Cause, 56 A.L.R. 5th 1 (1998).
As can be gathered by the name, this was not always so. Covington, examining the law of other jurisdictions, noted that the "older rule, and still the rule in some jurisdictions," allowed an attorney so positioned to recover the entire contingent fee. Id. at 64, 247 S.E.2d at 307; see, e.g., Higgins v. Beaty, 242 N.C. 479, 88 S.E.2d 80 (1955) (involving a fixed fee contract and holding that an attorney may recover on the contract). This was so because courts would apply the general law of contract. See O'Brien v. Plumides, 79 N.C. App. 159, 161, 339 S.E.2d 54, 55, cert. improvidently allowed, 318 N.C. 409, 348 S.E.2d 805 (1986). However, as explained in section I of this opinion, the general contract rules were cast aside in favor of the modern rule for reasons of public policy dealing with clients and their ability to maintain their counsel of choice. See also id.
Thus, appellee points out that until the adoption of the modern rule, clients presumably had no right to unilaterally discharge an attorney and force him to pursue a quantum meruit claim, and therefore the right to a jury trial is not protected by Article I, Section 25. We agree. This case falls within the realm of a number of claims cited in the Kiser opinion that have been found to have no right to a jury trial:
See, e.g., In re Huyck Corp. v. Mangum, Inc., 309 N.C. 788, 309 S.E.2d 183 (no jury trial right where sovereign immunity would have prevented the suit at common law); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (no jury trial right in case involving parental rights); In re Annexation Ordinances, 253 N.C. 637, 649, 117 S.E.2d 795, 804 (1961) ("The right to a trial by jury is not guaranteed in those cases where the right and the remedy have been created by statute since the adoption of the Constitution [of 1868]"); Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E.2d 201 (no jury trial right in petition for trucking franchise certificate); Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897 (no jury trial right for controversy over tax valuation); Unemployment Compensation Comm. v. Willis, 219 N.C. 709, 15 S.E.2d 4 (1941) (no jury trial right in cases involving administration of the tax laws); Hagler v. Highway Commission, 200 N.C. 733, 158 S.E. 383 (1931) (no jury trial right under the Workmen's Compensation Act); McInnish v. Bd. of Education, 187 N.C. 494, 122 S.E. 182 (1924) (no jury trial right for discretionary administrative decision regarding site for school building); Groves v. Ware, 182 N.C. 553, 109 S.E. 568 (1921) (jury of six constitutionally acceptable in insanity hearing); Phillips v. Phillips, 73 N.C. App. 68, 326 S.E.2d 57 (1985) (no jury trial right for equitable distribution action).
Kiser, 325 N.C.
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