Bamberger v. Bernholz

• Decision Date: 19 December 1989
• Docket Number: No. 8815SC1363,8815SC1363
• Citation: 386 S.E.2d 450,96 N.C.App. 555
• Court: North Carolina Court of Appeals
• Parties: William L. BAMBERGER, Jr. v. Roger B. BERNHOLZ and Coleman, Bernholz, Dickerson, Bernholz, Gledhill and Hargrave, a North Carolina General Partnership.

Page 450

386 S.E.2d 450

96 N.C.App. 555

William L. BAMBERGER, Jr. v. Roger B. BERNHOLZ and Coleman, Bernholz, Dickerson Bernholz, Gledhill and Hargrave, a North Carolina General Partnership.

No. 8815SC1363.

Court of Appeals of North Carolina.

Dec. 19, 1989.

Elliot & Pishko, P.A. by David C. Pishko, Winston-Salem, for plaintiff-appellant.

Young, Moore, Henderson & Alvis, P.A. by M. Lee Cheney, Raleigh, for defendants-appellees.

ORR, Judge.

The Original Case

The original case out of which this malpractice action arose concerned injuries to plaintiff, Bamberger, that allegedly were caused by the negligence of plaintiff's girlfriend, Mary Vilas. On 13 March 1980, Bamberger was asked by Mary Vilas to help her type a paper for a graduate school class. Bamberger agreed and proceeded over to Vilas' apartment which was owned by Sally Vilas, Mary Vilas' mother.

After some period of time at the apartment, Bamberger decided to go to bed there while Vilas finished the paper. He went upstairs to the loft where two single beds were located. Vilas' bed was closest to the edge of the loft. There was no railing or other barrier on the loft. Bamberger decided to sleep in Vilas' bed rather than in her roommate's bed.

Bamberger started to push the twin beds together as he had in the past when he had stayed there. Mary Vilas stated in her deposition, "[H]e started to push my bed over towards hers away from the edge. And I told him not to do that." She was asked why she told him not to push the beds together. She responded,

Because I was a little pissed off at him about the paper. And I didn't want to have to climb over him to get into bed, because that--I remember--I think that--I am pretty sure that my bed was the trundle bed. So it didn't actually have a footboard.

. . . . .

And I would have to climb over that. And it was just easier. I told him to leave it and that I would move it when I came to bed, which was going to be pretty soon, but not right that minute.

When Ms. Vilas came to bed, she decided not to push the beds together because she was tired, and it would be hard to move the bed with plaintiff in it. During the course of the night, plaintiff got out of the bed to go down the stairs and use the bathroom. He tried to walk along the side of the bed closest to the edge of the loft. The bed was still along this ledge, and he fell from the loft to the floor below.

Plaintiff later engaged Bernholz to either settle his claims with Vilas' insurer or file suit. Bernholz made a settlement offer to the insurer for $150,000.00, which was denied. On 20 February 1983, plaintiff wrote Bernholz and reminded him to file the complaint because the three-year statute of limitations would expire on 13 March 1983. There is no evidence that Bernholz ever discouraged plaintiff from filing suit for any reason.

Mary Vilas and her mother who owned the loft apartment where the accident occurred were named as defendants in the original case. On 14 February 1984, they made a motion for summary judgment. The court allowed summary judgment on 9 April 1984 as to the mother, Sally Vilas, but not as to the daughter, Mary.

On 22 August 1984, the original case was called for trial. Plaintiff was supposed to move out of town that week, and he alleges he spoke to Bernholz several times about delaying the moving date in order to be present for the trial. Bernholz believed he would have no trouble getting a continuance for the trial and told the plaintiff to go ahead and move. On 22 August 1984 when the case was called, the court denied plaintiff's motion for a continuance, and Bernholz took a voluntary dismissal in open court under G.S. 1A-1, Rule 41. However, he failed to notify plaintiff of this action.

In October, plaintiff wrote Bernholz inquiring whether the court date would be scheduled during his November vacation. Bernholz knew that plaintiff did not even have a current case pending after the voluntary dismissal. However, he wrote plaintiff a letter leading him to believe that he did in fact have a case which simply needed to be rescheduled, not refiled.

The Refiled Original Case

Since the voluntary dismissal of the original case was taken on 22 August 1984, plaintiff's attorney had one year to refile the action. G.S. 1A-1, Rule 41(a)(1), N.C.Rules of Civil Procedure. See Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980). The case, however, was not filed until 26 August 1985, more than one year after the dismissal.

The attorney for the defendants, Mary and Sally Vilas, moved for summary judgment which was heard on 7 July 1986. At the hearing, the Vilas' attorney presented three arguments as grounds for granting the summary judgment motion in his clients' favor. First, there was no issue of fact regarding liability against Sally or Mary Vilas and they were entitled to judgment as a matter of law because they did not breach the duty of care owed to the plaintiff. Secondly, he argued that as to Sally Vilas this action was res judicata because of Judge Battle's judgment of 8 April 1984 granting summary judgment in her favor. Finally, he contended the suit against Mary and Sally Vilas could not go to trial because the action would be barred for failing to refile the action within one year of the voluntary dismissal per Rule 41. The trial court granted summary judgment for both defendants, but did not indicate the basis for the judgment.

The Legal Malpractice Case

Plaintiff Bamberger subsequently filed this suit against the defendants Bernholz and the law firm in which he is a general partner. The complaint alleged four primary causes of action arising out of Bernholz's handling of Bamberger's original case against Mary and Sally Vilas: (1) negligence, (2) fraud, (3) breach of fiduciary duty, and (4) breach of contract. Defendants moved for summary judgment on 21 July 1988.

On 11 August and 15 August 1988, plaintiff filed the sworn affidavits of B. Ervin Brown, II and J. Wilson Parker, licensed attorneys in North Carolina who practice in general civil litigation, including personal injury cases. Each attorney averred that he had handled at least 50 personal injury actions. Further, each attorney averred that had defendant been prepared for trial on 22 August 1984, he "could or might have obtained a judgment or settlement favorable to Bamberger."

On 22 August 1988, the trial court granted all of defendants' motions. The defendants' principle argument is that plaintiff's claims in the case sub judice must fail because any alleged wrongdoing by the defendant Bernholz could not have proximately caused any damage to plaintiff, since plaintiff's original claim was without merit as a matter of law based upon the defendant Mary Vilas' lack of duty to the plaintiff as a licensee. In North Carolina, an owner or occupier of premises is not under a duty to a licensee to maintain the premises in a safe or suitable condition or warn him of hidden dangers or perils of which the owner has actual or implied knowledge. Haddock v. Lassiter, 8 N.C.App. 243, 174 S.E.2d 50 (1970).

A. The Negligence Claim

An attorney is liable to his client for legal malpractice if the client proves "(1) that the attorney breached the duties owed to his client, as set forth by Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954), and that this negligence (2) proximately caused (3) damage to the plaintiff." Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985).

In addressing the question before this Court as to the correctness of the trial court's entry of summary judgment for defendants, we first note the standard for granting such a motion.

A motion for summary judgment under G.S. 1A-1, Rule 56(c) "shall be rendered ... if the pleadings, depositions, ... 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." This remedy permits the trial court to decide whether a genuine issue of material fact exists; it does not allow the court to decide an issue of fact. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C.App. 533, 535, 303 S.E.2d 358, 360 (1983) (citations omitted). The trial court must determine if there is a triable material issue of fact, viewing all evidence presented in the light most favorable to the nonmoving party. Land-of-Sky Regional Council v. Co. of Henderson, 78 N.C.App. 85, 87, 336 S.E.2d 653, 654 (1985), disc. rev. denied, 316 N.C. 553, 344 S.E.2d 7 (1986); Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 258, 335 S.E.2d 79, 83 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986).

The standard for granting summary judgment in a legal malpractice action was refined further in Rorrer:

In a negligence action, summary judgment for defendant is proper where the evidence fails to establish negligence on the part of defendant, establishes contributory negligence on the part of plaintiff, or establishes that the alleged negligent conduct was not the proximate cause of the injury.

Rorrer, 313 N.C. at 355, 329 S.E.2d at 366 (citations omitted).

We now consider whether plaintiff's evidence was sufficient in light of these standards to overcome the summary judgment motion.

Clearly, there was sufficient evidence of defendant Bernholz's breach of duty to plaintiff by failing to refile the original case in a timely fashion, and there was no evidence of any contributory negligence by plaintiff in that regard so as to defeat the defendants' summary judgment motion. The ultimate question therefore remains whether there was a genuine issue of material fact raised as to the alleged negligent conduct being the proximate cause of an injury.

Where the plaintiff bringing suit for legal malpractice has lost another suit allegedly due to his attorney's negligence, to prove that but for the attorney's negligence plaintiff would not have suffered the loss, plaintiff must prove that:

1) The original claim was valid;

2) It would have resulted in a judgment in...