{
  "id": 11237375,
  "name": "LINDA R. SHARP, Plaintiff v. CAROLE S. GAILOR, WOMBLE CARLYLE SANDRIDGE & RICE, GAILOR & ASSOCIATES, MARILYN FORBES, KAREN BRITT PEELER, A. ELIZABETH BARNES, JOHN HESTER, and LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Defendants",
  "name_abbreviation": "Sharp v. Gailor",
  "decision_date": "1999-02-02",
  "docket_number": "No. COA98-284",
  "first_page": "213",
  "last_page": "217",
  "citations": [
    {
      "type": "official",
      "cite": "132 N.C. App. 213"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "N.C. Gen. Stat. \u00a7 75-1.1",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "year": 1994,
      "pin_cites": [
        {
          "page": "(a)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "488 S.E.2d 215",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1997,
      "pin_cites": [
        {
          "page": "224"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "346 N.C. 650",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        139442
      ],
      "year": 1997,
      "pin_cites": [
        {
          "page": "666"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/346/0650-01"
      ]
    },
    {
      "cite": "273 S.E.2d 674",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "pin_cites": [
        {
          "page": "677"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "302 N.C. 77",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563828
      ],
      "year": 1981,
      "pin_cites": [
        {
          "page": "82-83"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/302/0077-01"
      ]
    },
    {
      "cite": "453 S.E.2d 181",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1994,
      "opinion_index": 0
    },
    {
      "cite": "338 N.C. 669",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2518948,
        2517098,
        2517646,
        2517202,
        2520243
      ],
      "year": 1994,
      "opinion_index": 0,
      "case_paths": [
        "/nc/338/0669-05",
        "/nc/338/0669-02",
        "/nc/338/0669-01",
        "/nc/338/0669-04",
        "/nc/338/0669-03"
      ]
    },
    {
      "cite": "449 S.E.2d 39",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1994,
      "opinion_index": 0
    },
    {
      "cite": "116 N.C. App. 513",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524783
      ],
      "year": 1994,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/116/0513-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 515,
    "char_count": 9039,
    "ocr_confidence": 0.744,
    "pagerank": {
      "raw": 1.1103165512111188e-07,
      "percentile": 0.5705604844143423
    },
    "sha256": "5477d5a18ca0b5c8eb70fdd56c3e005d4fccdc9c502f6ad1d48c5acdc6e4ae47",
    "simhash": "1:140857e27c97a292",
    "word_count": 1455
  },
  "last_updated": "2023-07-14T21:08:15.604309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges GREENE and HUNTER concur."
    ],
    "parties": [
      "LINDA R. SHARP, Plaintiff v. CAROLE S. GAILOR, WOMBLE CARLYLE SANDRIDGE & RICE, GAILOR & ASSOCIATES, MARILYN FORBES, KAREN BRITT PEELER, A. ELIZABETH BARNES, JOHN HESTER, and LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPlaintiff filed her original complaint in this case on 26 November 1996 and an amended complaint on or about 27 May 1997. According to her amended complaint, plaintiff separated from her husband on 23 January 1984. She hired D. Keith Teague, Esq. to represent her in the ensuing action for equitable distribution. Mr. Teague withdrew on 3 July 1989. He was replaced by defendant Carole Gailor, Esq., who was then a partner with defendant Womble Carlyle Sandridge & Rice (\u201cWomble Carlyle\u201d). On or about 21 September 1989, plaintiff, Gailor, and Womble Carlyle entered into a retainer agreement under which Gailor and Womble Carlyle were to represent plaintiff in the equitable distribution case.\nAn equitable distribution hearing was held from 5 August 1991 to 11 August 1991 before a referee in Dare County. Plaintiff was apparently represented by defendants Gailor, Marilyn Forbes, Esq., and A. Elizabeth Barnes, Esq.; it appears that Ms. Forbes and Ms. Barnes were associates with Womble Carlyle. Judgment in the equitable distribution was entered 19 April 1993, and some associates with Womble Carlyle, including defendant Barnes, prepared an appellate brief and record and filed it on 4 October 1993. In an opinion filed 18 October 1994, a unanimous panel of this Court affirmed the order of equitable distribution, and the Supreme Court subsequently denied discretionary review. Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39, disc. review denied, 338 N.C. 669, 453 S.E.2d 181 (1994).\nPlaintiffs amended complaint alleges, in eleven separate counts, misfeasance and nonfeasance by the defendants in connection with plaintiffs equitable distribution case. On defendants\u2019 motion, the trial court dismissed all of plaintiffs claims for failure to state a claim upon which relief can be granted. See N.C.R. Civ. P. 12(b). Plaintiff appeals.\nOur review of the trial court\u2019s decision is limited to those arguments which plaintiff has chosen to make in her appellate brief.\nThe function of all briefs required or permitted by these rules is to define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. Review is limited to questions so presented in the several briefs.\nN.C.R. App. P. 28(a).\nPlaintiff\u2019s first argument is that her claims for legal malpractice should have withstood defendants\u2019 motion to dismiss. North Carolina General Statutes section l-15(c) (1996) provides,\nExcept where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action....\nPlaintiff filed her complaint on 26 November 1996. Her legal malpractice claims are barred unless they are supported by acts or omissions occurring after 26 November 1993.\nOn pages eight and nine of her brief, plaintiff argues that the following acts and/or omissions by some of the defendants, alleged in her amended complaint as having occurred after 26 November 1993, constitute legal malpractice: (1) The failure of defendants Gailor, Womble Carlyle, Barnes, and Forbes to correct material errors in the appeal they had prepared and filed with this Court on 4 October 1993; (2) billing plaintiff for the preparation of her appeal; (3) reviewing the opinion this Court filed 18 October 1994, in the case Sharp v. Sharp; (4) billing plaintiff for reviewing this Court\u2019s opinion in Sharp v. Sharp; (5) preparing a motion for discretionary review on 22 November 1994; (6) failing to ask this court for a rehearing; and (7) defendant Gailor\u2019s \u201cfailing] to follow the judgment handed down and affirmed by the NC [sic] Court of Appeals\u201d and \u201cma[king] a \u2018deal\u2019 which was not favorable to Plaintiff with the attorney for Plaintiffs ex-husband\u201d on 6 March 1995. For this last item, plaintiff cites Paragraphs 5C, 5D, and 5E of her Eleventh Count, titled \u201cFraud.\u201d\nItems (2) through (6) are clearly not actionable as legal malpractice; nothing in any of these acts or omissions, as alleged, is a dereliction of professional duty. Neither is item (1) an omission constituting legal malpractice. There is no provision in the Rules of Appellate Procedure which permits an appellant to unilaterally correct or augment his brief after it has been filed. Nor is there any rule in this state that expressly authorizes an appellant to move an appellate court for permission to correct or augment his brief. In fact, Rule of Appellate Procedure 28(g), which permits a party to supply an appellate court with a memorandum of additional authority discovered by the party after the brief is filed, expressly prohibits the use of the memorandum \u201cfor additional argument.\u201d Thus, once plaintiffs appellate brief in the case Sharp v. Sharp was filed, nothing could be done to \u201ccorrect\u201d it; the matter was out of defendants\u2019 hands. Any malpractice claim based on the erroneous preparation of that brief is based on acts or omissions that occurred on or before October 1993, so the claim is barred by G.S. l-15(c).\nAs noted above, item (7) is presented as a claim of fraud in plaintiff\u2019s complaint. The paragraphs cited by plaintiff, however, do not allege the elements of either actual or constructive fraud. See Terry v. Terry, 302 N.C. 77, 82-83, 273 S.E.2d 674, 677 (1981). Plaintiff comes closer to alleging constructive fraud than actual fraud, but what is missing is any allegation that Gailor took advantage of her position of trust for the purpose of benefiting herself See Barger v. McCoy Hilliard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997). Thus, the acts alleged in item (7) fail to state a claim for fraud.\nPlaintiff next argues that her claims of breach of fiduciary duty are claims for which relief can be granted. The acts and omissions upon which her claims of breach of fiduciary duty are based include the following: failing to protect real property marital assets \u201cby filing a lis pendens\u201d [sic], failing to pursue a timely settlement of the equitable distribution case, entering into pretrial stipulations to plaintiff\u2019s detriment, failing to offer material evidence in plaintiff\u2019s favor, delaying plaintiff\u2019s trial, failing to review the credentials of an expert witness hired to testify on plaintiff\u2019s behalf, failing to ensure the presence of an expert witness at trial, failing to prepare an adequate appellate brief. As these examples show, plaintiffs claims of breach of fiduciary duty are nothing more than claims of ordinary legal malpractice, which, as we have said, are barred by the statute of limitations.\nFinally, plaintiff alleges that her claims of unfair and deceptive trade practices are claims for which relief can be granted. These claims are not recognized by statute. While the General Assembly has declared unfair and deceptive practices \u201cin or affecting commerce\u201d to be unlawful, N.C. Gen. Stat. \u00a7 75-1.1(a) (1994), it has expressly excluded the rendition of professional services \u201cby a member of a learned profession\u201d from the definition of \u201ccommerce.\u201d G.S. 75-1.1(b). Plaintiff argues that we should \u201cgiv[e] her the right to sue under the state\u2019s Unfair and Deceptive Trade Practices Act,\u201d but as judges, we should not and will not rewrite a law enacted by our state legislature.\nAffirmed.\nJudges GREENE and HUNTER concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Linda R. Sharp, pro se.",
      "Homthal, Riley, Ellis & Maland, L.L.R, by L.P. Homthal, Jr., for defendants-appellees Carole S. Gailor; Womble Carlyle Sandridge & Rice, PLLC; Gailor & Associates, PLLC; Marilyn Forbes; and A. Elizabeth Barnes.",
      "Baker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and Roger A. Askew, for defendants-appellees Karen Britt Peeler, John Hester, and Lawyers Mutual Liability Insurance Company of North Carolina."
    ],
    "corrections": "",
    "head_matter": "LINDA R. SHARP, Plaintiff v. CAROLE S. GAILOR, WOMBLE CARLYLE SANDRIDGE & RICE, GAILOR & ASSOCIATES, MARILYN FORBES, KAREN BRITT PEELER, A. ELIZABETH BARNES, JOHN HESTER, and LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA, Defendants\nNo. COA98-284\n(Filed 2 February 1999)\nAttorneys\u2014 malpractice \u2014 failure to state a claim upon which relief could be granted\nThe trial court did not err by granting a dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in a legal malpractice action arising from an equitable distribution case where plaintiff\u2019s claims for dereliction of professional duty were time barred by N.C.G.S. \u00a7 l-15(c), the actions cited by plaintiff as fraudulent do not allege the elements of either actual or constructive fraud, allegations of breach of fiduciary duty were nothing more than claims of ordinary legal malpractice which were time barred, and professional services are expressly excluded from the definition of commerce in N.C.G.S. \u00a7 75-1.1(b).\nAppeal by plaintiff from judgment entered 28 October 1997 by Judge Clifton W. Everett, Jr. in Dare County Superior Court. Heard in the Court of Appeals 17 November 1998.\nLinda R. Sharp, pro se.\nHomthal, Riley, Ellis & Maland, L.L.R, by L.P. Homthal, Jr., for defendants-appellees Carole S. Gailor; Womble Carlyle Sandridge & Rice, PLLC; Gailor & Associates, PLLC; Marilyn Forbes; and A. Elizabeth Barnes.\nBaker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and Roger A. Askew, for defendants-appellees Karen Britt Peeler, John Hester, and Lawyers Mutual Liability Insurance Company of North Carolina."
  },
  "file_name": "0213-01",
  "first_page_order": 247,
  "last_page_order": 251
}
