Cowart v. Poore, No. 3054.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation337 S.C. 359,523 S.E.2d 182
PartiesJohnny Furman COWART, Appellant, v. Bruce M. POORE, Respondent.
Decision Date04 October 1999
Docket NumberNo. 3054.

337 S.C. 359
523 S.E.2d 182

Johnny Furman COWART, Appellant,
v.
Bruce M. POORE, Respondent

No. 3054.

Court of Appeals of South Carolina.

Submitted September 8, 1999.

Decided October 4, 1999.

Rehearing Denied December 4, 1999.


337 S.C. 361
Johnny Furman Cowart, of Fort Mill, pro se

Bruce M. Poore, of Rock Hill, pro se.

ANDERSON, Judge:

Johnny F. Cowart filed a legal malpractice action against Bruce M. Poore, Cowart's former attorney, alleging: (1) breach of contract; (2) negligence; and (3) violation of the Unfair Trade Practices Act. The Circuit Court judge granted Poore's motion to dismiss. Cowart appeals. We affirm.1

FACTS/PROCEDURAL BACKGROUND

Poore represented Cowart in a mortgage foreclosure action. An hourly fee arrangement was agreed upon. Cowart also requested Poore represent him in a counterclaim against the mortgagee. Poore filed the action but notified Cowart he would not litigate it. By consent order substituting counsel, prior to the foreclosure hearing, Poore was relieved as counsel.

337 S.C. 362
Cowart sought a refund through the Fee Dispute Resolution Board. The Board denied Cowart relief, and dismissed the complaint. The Board elucidates
3. We find, as a matter of fact, from the testimony and the exhibits in the record that ... Mr. Poore fully earned [his] fees and, in fact, had additional fees due [him] over and above what was actually charged, which they wrote off in order to terminate [his] relationship with Mr. Cowart....
. . . .
6. We further find that Mr. Cowart has unreasonable expectations to assume that he should be refunded the entire fee paid where work was performed. For emphasis, we find that the work performed was beneficial to Mr. Cowart ... in the case of Mr. Poore.

Cowart then filed this action.

Poore filed a motion to dismiss under Rule 12(b)(6), SCRCP, as to all causes of action, or in the alternative, a motion for summary judgment. Under his first cause of action in his complaint, Cowart alleged:

14. The defendant breached the contract between himself and the plaintiff by totally ignoring the specific instructions of the plaintiff about being notified of the first meeting with Home Federal.
15. The plaintiff also alleges that the defendant was negligent in his duties by attending the first meeting with Home Federal and preparing the answer and counterclaim without benefit of the file from [Cowart's former attorney's] office which contained the papers and documents dealing with this case.
16. The plaintiff also alleges that the defendant breached the contract between them when he refused to litigate this case in court as he had been hired to do.
17. As a result of the defendant's actions the plaintiff lost valuable time in order to prepare for trial and also the $1350.00 that the plaintiff had already paid the defendant plus interest, plus consequential damages. (Emphasis added.)

At the hearing on the motion, the trial judge required Cowart to elect between his contract action and his negligence

337 S.C. 363
action. Cowart elected to proceed on the negligence action, and waived the contract action. The trial judge (1) found Cowart waived the contract action, or in the alternative the contract action was barred by the Fee Dispute Resolution Board decision; (2) granted the motion to dismiss on the negligence action as there was "no allegation by [Cowart] of any causal connection between the alleged negligence of [Poore] and any alleged damages;" and (3) granted the motion to dismiss the unfair trade practices for failure to state facts sufficient to set forth a cause of action

In a motion to reconsider, Cowart raised procedural issues involving: (1) the Fee Dispute Resolution Board action; (2) Poore's violation of Rule 6, SCRCP, regarding Poore's memorandum in support of the motion to dismiss which was not served prior to the hearing; and (3) alleging the memorandum contained fraudulent statements. The trial judge held two hearings on the motion to reconsider. At the second hearing, Cowart asserted Poore had a conflict of interest in his action against Home Federal due to Poore's mortgage with Home Federal. Cowart also reargued his breach of contract claim, and denied waiving it in favor of the negligence claim. The trial judge denied the motion to reconsider.

ISSUES

I. Did the trial judge err in finding Cowart waived his contract cause of action?
II. Is the holding of the Fee Dispute Board binding on the breach of contract claim if it is not waived?
III. Did the trial judge err in dismissing the legal malpractice and Unfair Trade Practices actions pursuant to Rule 12(b)(6), SCRCP?
IV. Did the trial judge err in allowing Poore to submit his Memorandum in Support of Defendant's Motion to Dismiss at the hearing in violation of Rule 6(D), SCRCP?

STANDARD OF REVIEW

The ruling on a Rule 12(b)(6), SCRCP motion to dismiss must be based solely upon the allegations set forth in the complaint. State Bd. of Med. Exam'rs v. Fenwick Hall,

337 S.C. 364
Inc., 300 S.C. 274, 387 S.E.2d 458 (1990). On review, the motion will not be sustained if the facts alleged, and the inferences reasonably deducible therefrom, would entitle the plaintiff to relief on any theory of the case. Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995); Brown v. Leverette, 291 S.C. 364, 353 S.E.2d 697 (1987). The question to be considered is whether in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief. Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987).

LAW/ANALYSIS

Election of Remedies

The doctrine of election of remedies involves a choice
...

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19 practice notes
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...complaint are viewed in the light most favorable to the plaintiff. Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987); Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct.App.1999); Mr. G. v. Mrs. G., 320 S.C. 305, 465 S.E.2d 101 354 S.C. 301 Dismissal of an action pursuant to Rule 12(b)(6) ......
  • Tomlinson v. Mixon, No. 4070.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996); Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (1945); Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct.App. 1999); Brown v. Felkel, 320 S.C. 292, 465 S.E.2d 93 (Ct.App.1995); Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171,......
  • Liberty Mut. Ins. v. Employee Resource Management, No. C/A NO. 2-98-2205-18.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 29, 2001
    ...should have a full opportunity to prove his claim to some form of relief, but he should not receive a double recovery. Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182, 185 (1999) (citing Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (S.C 1945)); Save Charleston Foundation v. Murray, 2......
  • Peagler v. Usaa Ins. Co., No. 26128.
    • United States
    • United States State Supreme Court of South Carolina
    • March 20, 2006
    ...injuring a pedestrian. The assault was not foreseeably identifiable with the normal use of an automobile. Bookert, 337 S.C. at 293, 523 S.E.2d at 182. Similarly, in Aytes, an assailant used a car to transport the victim to a location with the expressed intent of killing the victim. The assa......
  • Request a trial to view additional results
19 cases
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...complaint are viewed in the light most favorable to the plaintiff. Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987); Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct.App.1999); Mr. G. v. Mrs. G., 320 S.C. 305, 465 S.E.2d 101 354 S.C. 301 Dismissal of an action pursuant to Rule 12(b)(6) ......
  • Tomlinson v. Mixon, No. 4070.
    • United States
    • Court of Appeals of South Carolina
    • January 9, 2006
    ...Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996); Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (1945); Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182 (Ct.App. 1999); Brown v. Felkel, 320 S.C. 292, 465 S.E.2d 93 (Ct.App.1995); Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171,......
  • Liberty Mut. Ins. v. Employee Resource Management, No. C/A NO. 2-98-2205-18.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 29, 2001
    ...should have a full opportunity to prove his claim to some form of relief, but he should not receive a double recovery. Cowart v. Poore, 337 S.C. 359, 523 S.E.2d 182, 185 (1999) (citing Tzouvelekas v. Tzouvelekas, 206 S.C. 90, 33 S.E.2d 73 (S.C 1945)); Save Charleston Foundation v. Murray, 2......
  • Peagler v. Usaa Ins. Co., No. 26128.
    • United States
    • United States State Supreme Court of South Carolina
    • March 20, 2006
    ...injuring a pedestrian. The assault was not foreseeably identifiable with the normal use of an automobile. Bookert, 337 S.C. at 293, 523 S.E.2d at 182. Similarly, in Aytes, an assailant used a car to transport the victim to a location with the expressed intent of killing the victim. The assa......
  • Request a trial to view additional results

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