{ "id": 12167790, "name": "BARRIE M. MILLER v. MAX F. FERREE, BETSY R. FERREE, RUSSELL F. FERREE, DR. HENRY C. LANDON, III, BARBARA S. LANDON and FERREE, CUNNINGHAM and GREY, P.A., SUCCESSOR TO MAX F. FERREE, P.A.", "name_abbreviation": "Miller v. Ferree", "decision_date": "1987-01-20", "docket_number": "No. 8623SC731", "first_page": "135", "last_page": "138", "citations": [ { "type": "official", "cite": "84 N.C. App. 135" } ], "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": "321 S.E. 2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680870, 4682260, 4683450, 4683066, 4685723 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0763-02", "/nc/311/0763-03", "/nc/311/0763-05", "/nc/311/0763-04", "/nc/311/0763-01" ] }, { "cite": "308 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522174 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0091-01" ] }, { "cite": "271 S.E. 2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "63" } ], "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "319 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "311 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685798 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0536-01" ] }, { "cite": "189 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "168" } ], "opinion_index": 0 }, { "cite": "281 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575662 ], "year": 1972, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0577-01" ] } ], "analysis": { "cardinality": 399, "char_count": 6672, "ocr_confidence": 0.885, "pagerank": { "raw": 2.6933031129358337e-07, "percentile": 0.8277723913633575 }, "sha256": "aab719d5edb30fa7ea24429ab4adb3d72681b3741f7e957cab9d6ab2f665f8f4", "simhash": "1:04adcb687f0bc7fb", "word_count": 1073 }, "last_updated": "2023-07-14T23:00:23.119892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Parker concur." ], "parties": [ "BARRIE M. MILLER v. MAX F. FERREE, BETSY R. FERREE, RUSSELL F. FERREE, DR. HENRY C. LANDON, III, BARBARA S. LANDON and FERREE, CUNNINGHAM and GREY, P.A., SUCCESSOR TO MAX F. FERREE, P.A." ], "opinions": [ { "text": "MARTIN, Judge.\nWe note initially that defendants\u2019 appeal is properly before us. \u201c[A] judgment by a court determining its statutory authority to dismiss an action in such a way as not to bar further litigation on the merits therein may be questioned only by appeal . . . .\u201d Gower v. Insurance Co., 281 N.C. 577, 580, 189 S.E. 2d 165, 168 (1972).\nThe appealing defendants contend that the trial court, upon finding plaintiff in violation of G.S. 1A-1, Rule 8(a)(2), should have dismissed his action against them with prejudice, and that its order dismissing the suit without prejudice and permitting the plaintiff to institute a similar action against them within one year should be reversed. We affirm.\nIt is clear that a dismissal with prejudice, pursuant to Rule 41(b), is an available sanction for a plaintiffs violation of Rule 8(a)(2). Harris v. Maready, 311 N.C. 536, 319 S.E. 2d 912 (1984). It is not, however, the only available sanction and should be applied \u201conly when the trial court determines that less drastic sanctions will not suffice.\u201d Id. at 551, 319 S.E. 2d at 922. The determination of whether to dismiss for violation of the rule, and whether such a dismissal should be with prejudice so as to bar a subsequent action, involves the exercise of judicial discretion.\nThe trial court found that \u201csanctions less than a dismissal without prejudice are inappropriate in this action.\u201d This finding indicates that the court considered the various sanctions available and determined that a dismissal without prejudice, taxing plaintiff for the costs of the action up to the time of dismissal, was a sufficiently severe sanction. Appellate courts should not disturb the trial court\u2019s exercise of discretion unless the challenged action is \u201cmanifestly unsupported by reason.\u201d Clark v. Clark, 301 N.C. 123, 129, 271 S.E. 2d 58, 63 (1980).\nIn Schell v. Coleman, 65 N.C. App. 91, 308 S.E. 2d 662 (1983), disc. rev. denied, appeal dismissed, 311 N.C. 763, 321 S.E. 2d 145 (1984), plaintiffs complaint prayed for damages for legal malpractice of $1,950,000.00. In addition, plaintiff aggravated the Rule 8(a)(2) violation by causing adverse radio and newspaper publicity, informing the N.C. Department of Insurance about the lawsuit, and causing the defendant to be served in open court. Under those circumstances, this court held that plaintiffs violation of Rule 8(a)(2) was so flagrant that the trial court\u2019s refusal to dismiss his suit amounted to an abuse of discretion.\nThe factors which aggravated the Rule 8(a)(2) violation in Schell are not present in this case. Although it appears from the exhibits filed in this Court that at least three newspaper articles have appeared in The Journal-Patriot of North Wilkesboro and The Elkin Tribune concerning the lawsuit, none of the articles or the headlines associated with them were of such a nature as to sensationalize the amount of damages claimed by plaintiff. Indeed, the main thrust of the articles involved the factual allegations and denials of the parties rather than the amount of damages sought. Had plaintiff complied with Rule 8(a)(2) the content of the articles would not have been appreciably different. The record does not disclose evidence of any other actions by plaintiff which would so aggravate the effect of his violation of the rule as to render it flagrant. We consequently decline to hold that the trial court\u2019s decision to dismiss this action without prejudice, rather than with prejudice, was \u201cmanifestly unsupported by reason\u201d so as to constitute an abuse of discretion.\nAffirmed.\nJudges Wells and Parker concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Flanary & Davies, by Kenneth T. Davies, for plaintiff ap-pellee.", "Moore, Willardson & Lipscomb, by Larry S. Moore, for defendant appellants Max F. Ferree and Russell F. Ferree.", "E. James Moore for defendant appellant Ferree, Cunningham and Gray, P.A." ], "corrections": "", "head_matter": "BARRIE M. MILLER v. MAX F. FERREE, BETSY R. FERREE, RUSSELL F. FERREE, DR. HENRY C. LANDON, III, BARBARA S. LANDON and FERREE, CUNNINGHAM and GREY, P.A., SUCCESSOR TO MAX F. FERREE, P.A.\nNo. 8623SC731\n(Filed 20 January 1987)\nAttorneys at Law \u00a7 5.1; Rules of Civil Procedure \u00a7 8.1\u2014 legal malpractice \u2014damages specifically stated \u2014 dismissal without prejudice\nIn an action for legal malpractice where plaintiff violated N.C.G.S. \u00a7 1A-1, Rule 8(a)(2) by stating specifically the amount of compensatory and punitive damages sought, the trial court did not abuse its discretion by dismissing without prejudice and taxing the costs to plaintiff, rather than dismissing with prejudice, since the record did not disclose evidence of any other actions by plaintiff which would so aggravate the effect of his violation of the rule as to render it flagrant.\nAPPEAL by defendants Max F. Ferree, Russell F. Ferree and Ferree, Cunningham and Gray, P.A., from DeRemus, Judge. Order entered 19 May 1986 in Superior Court, WILKES County. Heard in the Court of Appeals 11 December 1986.\nIn the complaint filed in this action, plaintiff alleged, inter alia, that defendants Max F. Ferree and Russell F. Ferree, who are attorneys and at all times relevant were members of defendant professional association or its predecessor, committed various acts of legal malpractice, some of which were intentional and others of which were negligent, in connection with their representation of plaintiff in certain real estate transactions. In the ad damnum clause of the complaint, plaintiff sought compensatory damages of $53,500.00 from these defendants and punitive damages of $500,000.00. In addition, plaintiff sought various equitable relief against all defendants and sought compensatory damages for breach of contract from defendants Landon.\nIn their answers, defendants Max F. Ferree, Russell F. Fer-ree and Ferree, Cunningham and Gray, P.A., included motions to dismiss the action pursuant to G.S. 1A-1, Rule 41(b) for plaintiff s failure to comply with G.S. 1A-1, Rule 8(a)(2), which provides that \u201cin all professional malpractice actions . . . wherein the matter in controversy exceeds . . . ten thousand dollars . . . the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is ... in excess of ten thousand dollars\nAfter hearing the motions, the trial court concluded that plaintiff had violated Rule 8(a)(2) and ordered, as sanctions for the violation, that plaintiffs action against defendants Max F. Ferree, Russell F. Ferree and Ferree, Cunningham and Gray, P.A., be dismissed without prejudice. The court further ordered that upon payment of all costs of the action the plaintiff would be permitted to institute a similar action against those defendants within one year. Defendants appealed.\nFlanary & Davies, by Kenneth T. Davies, for plaintiff ap-pellee.\nMoore, Willardson & Lipscomb, by Larry S. Moore, for defendant appellants Max F. Ferree and Russell F. Ferree.\nE. James Moore for defendant appellant Ferree, Cunningham and Gray, P.A." }, "file_name": "0135-01", "first_page_order": 163, "last_page_order": 166 }