Hall v. Fedor

Decision Date25 March 2002
Docket NumberNo. 3464.,3464.
Citation561 S.E.2d 654,349 S.C. 169
CourtSouth Carolina Court of Appeals
PartiesAugustus "Pete" HALL and Beverly J. Hall, Appellants, v. David A. FEDOR, Respondent.

James R. Gilreath and William M. Hogan, both of Gilreath Law Firm, of Greenville; and H. Wayne Floyd, of West Columbia, for appellants.

Harry A. Swagart, III and Robert L. Reibold, both of Swagart, Walker & Reibold, of Columbia, for respondent.

ANDERSON, J.

Augustus "Pete" Hall was arrested in his home by Detective Larry Harrison of the Lexington County Sheriffs Department based on an informant's tip about a drug purchase involving Hall. Hall brought a civil suit against Detective Harrison, seeking recovery for activities surrounding the arrest. David Fedor was co-counsel for Hall. Following resolution of the suit, Hall filed a legal malpractice claim against Fedor. Fedor moved for summary judgment, which the Circuit Court granted. Hall appeals the Circuit Court's grant of summary judgment. We affirm.

FACTS/PROCEDURAL BACKGROUND

Police arrested Hall and seized $40,000 from his home based on information provided by an informant about a potential drug purchase transaction involving Hall. Hall retained Fedor to defend him on the criminal charges arising from the arrest. Fedor persuaded the solicitor to drop the criminal charges pending against Hall and secured the return of the $40,000 seized in the arrest.

Hall asked Fedor to handle a subsequent civil suit he wished to file against Detective Harrison, the law enforcement officer who arrested Hall and searched his home. Fedor refused to accept the case, but referred Hall to another attorney, Gaston Fairey. Fairey also refused to represent Hall. Hall retained Gary White to handle the case. Hall sued Harrison in federal district court, alleging abuse of process, malicious prosecution, and violation of civil rights. After the suit had progressed for nearly a year, Fedor agreed to represent Hall as co-counsel in the case.

The Insurance Reserve Fund offered a $10,000 settlement to Hall on behalf of Harrison a few days before trial. Hall refused this offer. The settlement offer then rose to $30,000, which Hall accepted. After he had accepted the settlement, Hall contended Fedor made misrepresentations to him: (1) that Fedor urged Hall to accept the settlement by stating the Insurance Reserve Fund was either not liable or would refuse to pay; and (2) that attorney Jim Anders said to Hall that as much as $250,000 was available for a settlement amount and Fedor knew about the higher amount. Hall heard that Fedor had told Fairey that Detective Harrison was "trying to put Hall out of the drug business." Fedor allegedly stated to others that "Hall was dealing drugs" and "Hall was guilty and lucky to avoid jail." Hall filed a legal malpractice claim against Fedor based upon Fedor's alleged misconduct and negligence in his actions regarding the settlement agreement and Fedor's comment about Hall's guilt to third parties. Fedor moved for summary judgment. The Circuit Court granted the motion. Hall appeals.

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Olson v. Faculty House of Carolina, Inc., 344 S.C. 194, 544 S.E.2d 38 (Ct.App.2001), cert. granted; Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (Ct.App.1999); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); see also Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998)

(stating that a trial court should grant motion for summary judgment when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as a matter of law).

In determining whether any triable issue of fact exists, the evidence and all inferences reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997). Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699 (Ct.App.1999),aff'd,341 S.C. 320, 534 S.E.2d 672 (2000). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Id.

On appeal, this Court reviews the grant of summary judgment using the same standard applied by the trial court. Bray v. Marathon Corp., 347 S.C. 189, 553 S.E.2d 477 (Ct. App.2001), cert. pending; see also Estate of Cantrell, 302 S.C. 557, 559, 397 S.E.2d 777, 778 (Ct.App.1990)

("On appeal from summary judgment, the reviewing court must consider the facts and inferences in the light most favorable to the nonmoving party. The judgment may be affirmed only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.") (citations omitted).

LAW/ANALYSIS
I. Legal Malpractice Based on the Settlement Agreement Claim

In South Carolina, the plaintiff in a legal malpractice suit must prove several elements:

(1) the existence of an attorney-client relationship;
(2) a breach of duty by the attorney;
(3) damage to the client; and
(4) proximate cause of the plaintiff's damages by the breach.

McNair v. Rainsford, 330 S.C. 332, 499 S.E.2d 488 (Ct.App. 1998); Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433, 472 S.E.2d 612 (1996); Henkel v. Winn, 346 S.C. 14, 550 S.E.2d 577 (Ct.App.2001), cert. denied.

Additionally, the plaintiff must generally establish the standard of care by expert testimony. Smith, 322 S.C. at 435, 472 S.E.2d at 613; see also Mali v. Odom, 295 S.C. 78, 80-81, 367 S.E.2d 166, 168 (Ct.App.1988)

("A plaintiff in a legal malpractice case must ordinarily establish by expert testimony the standard of care, unless the subject matter is of common knowledge to laypersons.") (citations omitted).

Moreover, the plaintiff must show he or she "most probably" would have been successful in the underlying suit if the attorney had not committed the alleged malpractice. Brown v. Theos, 345 S.C. 626, 550 S.E.2d 304 (2001); Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988); Floyd v. Kosko, 285 S.C. 390, 329 S.E.2d 459 (Ct.App.1985).

In the case sub judice, Hall could satisfy the "most probably" requirement and defeat Fedor's summary judgment motion by establishing he "most probably" would have received a larger settlement than $30,000 or that he "most probably" would have prevailed on the underlying claim at trial.

To defeat Fedor's summary judgment motion, Hall offered: (1) his deposition testimony; (2) his wife's deposition testimony; and (3) deposition testimony and affidavit of Professor Gregory B. Adams, an expert witness, to establish the standard of care.

Use and admissibility of affidavit and deposition testimony to rebut a motion for summary judgment is governed by Rule 56(e), SCRCP and reads in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

(emphasis added).

Our appellate courts have interpreted Rule 56(e) to mean materials used to support or refute a motion for summary judgment must be those which would be admissible in evidence. See Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991)

; Moon v. Jordan, 301 S.C. 161, 390 S.E.2d 488 (Ct.App.1990); Moss v. Porter Bros., Inc., 292 S.C. 444, 357 S.E.2d 25 (Ct.App.1987); see also Hansen v. DHL Labs., Inc., 316 S.C. 505, 510, 450 S.E.2d 624, 627 (Ct.App.1994),

aff'd,

319 S.C. 79, 459 S.E.2d 850 (1995) ("A genuine issue of fact ... can be created only by evidence which would be admissible at trial.") (citing, inter alia, Rule 56(e), SCRCP).

Hall states in his deposition Anders told him that as much as $250,000 was "on the table" to settle the case and that Fedor was aware of the higher amount. This statement is clearly hearsay and does not fall under any of the hearsay exceptions enumerated in the Rules of Evidence. Therefore, it would be inadmissible evidence at trial and is inadmissible to refute a motion for summary judgment.

Hall additionally alleges Fedor lied when he told Hall the Insurance Reserve Fund was either not liable or would refuse to cover Harrison. During his deposition, Professor Adams testified that in order for a statement to constitute malpractice, it must result in damage to the client. Even if Hall were correct in his assertion that Fedor lied to him about the Insurance Reserve Fund's obligation or willingness to pay, he was not damaged because there is no evidence showing that he would have recovered more than $30,000 in a settlement with the insurer.

Once these two statements are eliminated from consideration, there is no evidence in the record to show that Hall "most probably" would have received in excess of $30,000 but for Fedor's alleged malpractice.

In contrariety, the evidentiary record demonstrates with remarkable clarity that the $30,000 amount was a good settlement,...

To continue reading

Request your trial
59 cases
  • Schmidt v. Courtney
    • United States
    • South Carolina Court of Appeals
    • 22 Diciembre 2003
    ...at 468,581 S.E.2d at 501; Baril, 352 S.C. at 280,573 S.E.2d at 835; Trivelas, 348 S.C. at 130,558 S.E.2d at 273; Hall v. Fedor, 349 S.C. 169, 561 S.E.2d 654 (Ct.App.2002); Hedgepath v. American Tel. & Tel. Co., 348 S.C. 340, 559 S.E.2d 327 (Ct.App.2001); Bayle v. South Carolina Dep't of Tra......
  • WILLIAMSBURG RURAL v. WILLIAMSBURG
    • United States
    • South Carolina Court of Appeals
    • 8 Diciembre 2003
    ...to clarify the application of the law. Lanham v. Blue Cross & Blue Shield, 349 S.C. 356, 563 S.E.2d 331 (2002); Hall v. Fedor, 349 S.C. 169, 561 S.E.2d 654 (Ct.App.2002). In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all inferences w......
  • Montgomery v. CSX Transp., Inc.
    • United States
    • South Carolina Court of Appeals
    • 6 Diciembre 2004
    ...used to support or refute a motion for summary judgment must be those which would be admissible in evidence. Hall v. Fedor, 349 S.C. 169, 561 S.E.2d 654 (Ct.App.2002). "[O]n a defendant's motion for summary judgment, there will usually be no genuine issue of material fact unless the plainti......
  • McCall v. State Farm Mut. Auto. Ins. Co.
    • United States
    • South Carolina Court of Appeals
    • 24 Mayo 2004
    ...and inferences arising from the evidence must be construed most strongly against the moving party." Hall v. Fedor, 349 S.C. 169, 173, 561 S.E.2d 654, 656 (Ct.App.2002) (citing Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999)). "Even when there is no d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT