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  "name_abbreviation": "Wilkins v. Safran",
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    "judges": [
      "Chief Judge MARTIN and Judge McCULLOUGH concur."
    ],
    "parties": [
      "RENNIE L. WILKINS, Plaintiff v. PERRY SAFRAN and THE LAW OFFICES OF PERRY R. SAFRAN, P.A., Defendants"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nRennie L. Wilkins (\u201cplaintiff\u201d) appeals from order entered granting Perry Safran\u2019s (\u201cdefendant\u201d) and The Law Offices of Perry R. Safran\u2019s (collectively, \u201cdefendants\u201d) motions for summary judgment against plaintiff\u2019s claims for attorney negligence/malpractice, breach of fiduciary duty, constructive fraud, and punitive damages. Defendants cross-appeal from that portion of the order denying their motion for summary judgment on plaintiffs claim for statutory damages pursuant to N.C. Gen. Stat. \u00a7 84-13. We affirm in part, reverse in part, and remand.\nI. Background\nDefendant is a duly-licensed attorney and counselor at law, and member of the North Carolina State Bar. The Law Offices of Perry R. Safran, P.A., is chartered by the North Carolina Secretary of State, is an active entity, and is an approved professional association by the North Carolina State Bar. Defendants represented plaintiff for over five years regarding a construction lawsuit filed against plaintiff on 21 April 1998.\nIn February 2003, defendant suffered a heart attack. On 25 April 2003, defendants submitted a written request asking the court to set the original case for trial on 22 September 2003. Following defendant\u2019s heart attack and the resignation of some of the lawyers from defendant\u2019s staff, defendants filed a motion to withdraw as plaintiff\u2019s counsel on 31 July 2003. Defendants\u2019 motion asserted plaintiff had been notified of their motion to withdraw and was actively seeking new counsel. Plaintiff denies he was notified. On 1 August 2003, defendants\u2019 motion to withdraw as counsel was granted. Defendants served plaintiff with a copy of the order allowing their withdrawal on 4 August 2003.\nAfter defendants withdrew, plaintiff retained other counsel to represent him in the underlying construction lawsuit. On 4 September 2003, plaintiff submitted motions to continue the 22 September 2003 trial date, or, alternatively, to set aside the order allowing defendants\u2019 withdrawal. Both motions were initially denied, but the court ordered the motions could be reconsidered on the day of trial.\nPrior to the trial date, plaintiff and his new counsel negotiated a settlement of the construction lawsuit. In the settlement, plaintiff agreed to pay $22,500.00 in exchange for a voluntary dismissal of the suit with prejudice. This agreement did not release defendants \u201cfrom any claims that [plaintiff] ha[d] or may have against [defendants] or to limit in any way any claims that [plaintiff] may have against [defendants].\u201d\nOn 28 December 2004, plaintiff commenced a legal malpractice action. A partial summary judgment order was entered on 4 August 2006 dismissing plaintiff\u2019s claims for: (1) attorney negligence/ malpractice; (2) breach of fiduciary duty; (3) constructive fraud; and (4) punitive damages. The trial court denied defendants\u2019 motion for summary judgment in part on plaintiffs claim for statutory damages under N.C. Gen. Stat. \u00a7 84-13. Plaintiff appeals and defendants cross-appeal.\nII.Issues\nPlaintiff argues the trial court erred by allowing defendants\u2019 motions for summary judgment in part and dismissing his claims.\nOn cross-appeal, defendants argue the trial court erred by denying their motion for summary judgment in part on plaintiff\u2019s claim for statutory damages under N.C. Gen. Stat. \u00a7 84-13.\nIII.Interlocutory Anneals\nNeither party raised or argued to dismiss either appeal as interlocutory. As a preliminary matter, both appeals are interlocutory. An interlocutory appeal arises when an order is entered by the trial court that does not dispose of the entire controversy between the parties. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). The general rule is that a party is \u201cnot entitled to immediately appeal an interlocutory order.\u201d Id. There are two exceptions to allow an immediate review of an interlocutory ruling: (1) \u201cwhere the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal\u201d or (2) \u201cwhere delaying the appeal will irreparably impair a substantial right of the party.\u201d Id. (internal quotation omitted). Here, the trial court certified no just reason exists to delay an appeal of the order. Even though this Court is not bound by the trial court\u2019s certification, in our discretion we review these interlocutory appeals because there is no just reason for delay and our review will avoid both piece-meal litigation and the risk of inconsistent verdicts. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) (\u201c[T]he trial court\u2019s determination that \u2018there is no just reason to delay the appeal,\u2019 while accorded great deference, cannot bind the appellate courts because \u2018ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.\u2019 \u201d (Citations omitted)).\nIV.Standard of Review\nSummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.\nA defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff\u2019s case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.\nOnce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produc\u00e9 a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\nDraughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003) (quotations omitted), aff\u2019d, 358 N.C. 131, 591 S.E.2d 521 (2004). We review an order allowing summary judgment de novo. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). \u201cIf the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).\nV. Plaintiff\u2019s Anneal\nPlaintiff argues the trial court erred in allowing defendants\u2019 motions for summary judgment in part and dismissing his claims against defendants. We disagree.\nA. Attorney Negligence/Malpractice\n[I]n a professional malpractice case predicated upon a theory of an attorney\u2019s negligence, the plaintiff has the burden of proving by the greater weight of the evidence: (1) that the attorney breached the duties owed to his client... and that this negligence (2) proximately caused (3) damage to the plaintiff.\nRorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985) (citations omitted).\nAn attorney:\nis answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed in his care.\nHodges v. Carter, 239 N.C. 517, 520, 80 S.E.2d 144, 146 (1954).\nA plaintiff in a legal malpractice action must establish that the loss would not have occurred but for the attorney\u2019s conduct. A plaintiff must prove: (1) The original claim was valid; (2) It would have resulted in a judgment in his favor; and (3) The judgment would have been collectible. A plaintiff alleging a legal malpractice action must prove a case within a case, meaning a showing of the viability and likelihood of success of the underlying action.\nFormyduval v. Britt, 177 N.C. App. 654, 658, 630 S.E.2d 192, 194 (2006) (internal quotations omitted), aff\u2019d, 361 N.C. 215, 639 S.E.2d 443 (2007).\nDefendant suffered a heart attack in February 2003. Lawyers assisting defendant in plaintiff\u2019s litigation resigned in July 2003. On 31 July 2003, defendants moved to withdraw as counsel on the grounds that the associate attorney in charge of the litigation on behalf of plaintiff was now working at a different law firm and defendant\u2019s health did not allow his continued representation of plaintiff. The certificate of service attached to this motion certified plaintiff was served by placing a copy addressed to plaintiff in the United States mail on 31 July 2003. The trial court granted defendants\u2019 motion to withdraw as counsel on 1 August 2003 and plaintiff was served the order allowing withdrawal on 4 August 2003.\nN.C. State Bar Rules of Professional Conduct, Rule 1.16(a) (2007) states that an attorney \u201cshall withdraw from the representation of a client if: . . . (2) the lawyer\u2019s physical or mental condition materially impairs the lawyer\u2019s ability to represent the client[.]\u201d (Emphasis supplied). Plaintiff\u2019s expert witness stated that defendants\u2019 conduct violated the standard of care with regard to the requirement to give reasonable notice to the client and to allow plaintiff sufficient time to employ other counsel. Under the facts at bar, we disagree.\nDefendants filed their motion to withdraw more than seven weeks prior to the scheduled trial date. Defendants\u2019 motion complied with the State Bar Rules of Professional Conduct allowing withdrawal due to defendant\u2019s ill health. Defendants\u2019 motion to withdraw did not breach the duty owed to plaintiff.\nDefendants received a binding court order allowing defendants\u2019 motion to withdraw. Plaintiff\u2019s new counsel properly requested a continuance and challenged the trial court\u2019s order granting defendants\u2019 motion to withdraw. See Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215, 217, 321 S.E.2d 514, 516 (1984) (\u201cWhere an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion. The Court must grant the party affected a reasonable continuance or deny the attorney\u2019s motion for withdrawal.\u201d); Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965) (New trial granted when trial judge did not continue the defendant\u2019s case for a reasonable time after attorney refused to represent the defendant.).\nAlthough plaintiffs motions to continue or to set aside defendants\u2019 withdrawal were initially denied, the trial court allowed both motions to be reconsidered on the day of trial. Plaintiff and his new counsel settled the claims against plaintiff prior to the scheduled trial date. Summary judgment was properly granted for defendants on plaintiff\u2019s claim of attorney negligence/malpractice. This assignment of error is overruled.\nB. Breach of Fiduciary Duty\n\u201cBreach of fiduciary duty is a species of negligence or professional malpractice.\u201d Heath v. Craighill, Rendleman, Ingle & Blythe, P.A., 97 N.C. App. 236, 244, 388 S.E.2d 178, 183 (citing Childers v. Hayes, 77 N.C. App. 792, 795, 336 S.E.2d 146, 148 (1985), disc. rev. denied, 316 N.C. 375, 342 S.E.2d 892 (1986)), disc. rev. denied, 327 N.C. 428, 395 S.E.2d 678 (1990). Because defendants asserted a proper basis and moved to withdraw, defendants\u2019 conduct did not breach their fiduciary duty owed to plaintiff. The trial court properly granted defendants\u2019 motion for summary judgment on plaintiff\u2019s breach of fiduciary duty claim. This assignment of error is overruled.\nC. Constructive Fraud\nA prima facie showing of constructive fraud requires plaintiff to prove \u201cthat they and defendants were in a \u2018relation of trust and confidence . . . [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.\u2019 \u201d Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)). The \u201crelationship of attorney and client creates such a relationship of trust and confidence.\u201d Fox v. Wilson, 85 N.C. App. 292, 299, 354 S.E.2d 737, 742 (1987) (citations omitted). Plaintiffs evidence must prove defendants sought to benefit themselves or to take advantage of the confidential relationship. Barger, 346 N.C. at 666, 488 S.E.2d at 224; NationsBank v. Parker, 140 N.C. App. 106, 114, 535 S.E.2d 597, 602 (2000).\nPlaintiff presented no evidence tending to show defendants sought or gained any personal benefit by withdrawing from representation of plaintiff. In the absence of such a showing, the trial court properly granted summary judgment for defendants on plaintiffs claim of constructive fraud. This assignment of error is overruled.\nD. Punitive Damages\n\u201cPunitive damages may be awarded, in an appropriate case ... to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.\u201d N.C. Gen. Stat. \u00a7 ID-1 (2005); see Rhyne v. K-Mart Corp., 358 N.C. 160, 167, 594 S.E.2d 1, 7 (2004) (\u201cChapter ID reinforces the common-law purpose behind punitive damages by providing that they are to be awarded to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.\u201d (Quotation omitted)).\n\u201c[T]he claimant must prove that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) fraud; (2) malice; or (3) willful or wanton conduct.\u201d N.C. Gen. Stat. \u00a7 1D-I5(a) (2005). The aggravating factors must be \u201caverred with particularity\u201d and proved by clear and convincing evidence. N.C. Gen. Stat. \u00a7 1A-1, Rule 9(k) (2005); N.C. Gen. Stat. \u00a7 1D-I5(b) (2005); see Burgess v. Busby, 142 N.C. App. 393, 410, 544 S.E.2d 4, 13 (2001) (Order reversed when aggravating factor was sufficiently alleged in the complaint to support a claim for punitive damages).\nViewed in the light most favorable to plaintiff, defendants\u2019 evidence tends to show they moved to withdraw from representation of plaintiff due to ill health and the resignation of the primary associate attorney working on plaintiffs case from the firm. Defendants asserted a proper basis and utilized proper procedures mandated by the Rules of Professional Conduct and the Rules for Superior Court Practice to move to withdraw. Defendants are not liable for any compensatory damages based on their proper withdrawal. Plaintiffs evidence fails to raise an inference of the existence of any of the three aggravating factors necessary to support a claim for punitive damages. N.C. Gen. Stat. \u00a7 1D-I5(a). The trial court properly granted summary judgment on plaintiff\u2019s claim for punitive damages. This assignment of error is overruled.\nVI. Defendants\u2019 Appeal\nDefendants argue on cross-appeal that the trial court erred by denying their motion for summary judgment in part on the plaintiff\u2019s claims for statutory damages under N.C. Gen. Stat. \u00a7 84-13. We agree.\nN.C. Gen. Stat. \u00a7 84-13 (2005) provides, \u201c[i]f any attorney commits any fraudulent practice, he shall be liable in an action to the party injured, and on the verdict passing against him, judgment shall be given for the plaintiff to recover double damages.\u201d\nIn Jordan v. Crew, this Court held that if a plaintiff fails to state a viable claim for fraud, constructive fraud, or any \u201cfraudulent practice,\u201d no derivative claim for double damages arises under N.C. Gen. Stat. \u00a7 84-13. 125 N.C. App. 712, 720, 482 S.E.2d 735, 739, disc. rev. denied, 346 N.C. 279, 487 S.E.2d 548 (1997). We have held the trial court properly granted summary judgment for defendants on plaintiff\u2019s breach of fiduciary duty and constructive fraud claims. Without a prima facie showing of actual or constructive fraud or any \u201cfraudulent practice,\u201d no claim for double damages arises under N.C. Gen. Stat. \u00a7 84-13. Id. The trial court erred in denying defendants\u2019 motion for summary judgment on plaintiff\u2019s claim for statutory damages under N.C. Gen. Stat. \u00a7 84-13. We reverse that portion of the trial court\u2019s order and remand for entry of summary judgment for defendants.\nVII. Conclusion\nThe trial court properly granted defendants\u2019 motions for summary judgment on plaintiff\u2019s claims for: (1) attorney negligence/malpractice; (2) breach of fiduciary duty; (3) constructive fraud; and (4) punitive damages.. Viewed in the light most favorable to plaintiff, no genuine issues of material fact exist on those claims. That portion of the trial court\u2019s order is affirmed.\nOnce the underlying claims for breach of fiduciary duty and constructive fraud claims were properly dismissed, plaintiff could not establish the statutory requirements for a claim for double damages pursuant to N.C. Gen. Stat. \u00a7 84-13. The trial court erred in denying defendants\u2019 motion for summary judgment in part. That portion of the trial court\u2019s order is reversed. This case is remanded for entry of summary judgment for defendants on plaintiff\u2019s statutory damages claim. Id.\nAffirmed in Part, Reversed in Part, and Remanded.\nChief Judge MARTIN and Judge McCULLOUGH concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Hayes Hofler, P.A., by R. Hayes Hofler, for plaintiff - appellant/cross-appellee.",
      "Patterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey and Tobias S. Hampson, for defendants-appellees/cross-appellants."
    ],
    "corrections": "",
    "head_matter": "RENNIE L. WILKINS, Plaintiff v. PERRY SAFRAN and THE LAW OFFICES OF PERRY R. SAFRAN, P.A., Defendants\nNo. COA06-1528\n(Filed 4 September 2007)\n1. Appeal and Error\u2014 appealability \u2014 summary judgment order\nAlthough the Court of Appeals was not bound by the trial court\u2019s certification that there was no just reason for delay, interlocutory appeals from a summary judgment order in a legal malpractice case were heard to avoid piece-meal litigation and the risk of inconsistent verdicts.\n2. Attorneys\u2014 withdrawal of representation \u2014 not malpractice\nSummary judgment was properly granted for defendants on a claim of legal malpractice where the individual defendant suffered a heart attack, lawyers in defendant firm assisting in plaintiff\u2019s litigation resigned, defendants moved to withdraw as counsel more than seven weeks prior to the scheduled trial date, and plaintiff settled after attempting to continue or set aside the withdrawal.\n3. Attorneys\u2014 withdrawal of representation \u2014 not a breach of fiduciary duty\nThe trial court properly granted defendants\u2019 motion for summary judgment on plaintiff\u2019s claim for breach of fiduciary duty arising from defendants\u2019 withdrawal from representation. Defendants asserted a proper basis for withdrawal and did not breach their fiduciary duty.\n4. Attorneys\u2014 withdrawal of representation \u2014 not constructive fraud\nThe trial court properly granted summary judgment for defendants on plaintiff\u2019s claim for constructive fraud arising from defendant lawyers withdrawing from representation of plaintiff. Plaintiff presented no evidence tending to show defendants sought or gained any personal benefit by withdrawing from representation of plaintiff.\n5. Attorneys\u2014 withdrawal of representation \u2014 no punitive damages\nThe trial court properly granted summary judgment for defendants on plaintiff\u2019s claim for punitive damages arising from defendant lawyers withdrawing their representation of plaintiffs. Plaintiffs evidence does not raise an inference of any of the three aggravating factors necessary to support a claim for punitive damages: defendants moved to withdraw due to ill health and the resignation of the primary associate attorney working on the case, they asserted a proper basis and utilized proper procedures to withdraw, and they are not liable for compensatory damages.\n6. Attorneys\u2014 withdrawal of representation \u2014 no statutory damages\nThe trial court erred by denying defendants\u2019 motion for summary judgment on plaintiff\u2019s claim for statutory damages arising from defendant lawyers withdrawing their representation from plaintiff. N.C.G.S. \u00a7 84-13 provides double damages if an attorney commits a fraudulent practice, but no claim arises without a showing of actual or constructive fraud, or a fraudulent practice. The trial court here granted summary judgment on the underlying claims.\nAppeal by plaintiff and cross-appeal by defendants from order entered 4 August 2006 by Judge Thomas D. Haigwood in Granville County Superior Court. Heard in the Court of Appeals 20 August 2007.\nHayes Hofler, P.A., by R. Hayes Hofler, for plaintiff - appellant/cross-appellee.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C. Dilthey and Tobias S. Hampson, for defendants-appellees/cross-appellants."
  },
  "file_name": "0668-01",
  "first_page_order": 700,
  "last_page_order": 709
}