Hatfield v. Van Epps

• Decision Date: 08 March 2004
• Docket Number: No. 3755.,3755.
• Citation: 358 S.C. 185,594 S.E.2d 526
• Court: South Carolina Court of Appeals
• Parties: William P. HATFIELD, individually and on behalf of The Hyman Law Firm, Respondent, v. Susan F. VAN EPPS, Appellant.

358 S.C. 185

594 S.E.2d 526

William P. HATFIELD, individually and on behalf of The Hyman Law Firm, Respondent, v. Susan F. VAN EPPS, Appellant.

No. 3755.

Court of Appeals of South Carolina.

Heard January 3, 2004.

Decided March 8, 2004.

Rehearing Denied April 22, 2004.

James H. Moss and H. Fred Kuhn, Jr., both of Beaufort, for Appellant.

Kevin M. Barth, of Florence; R. Davis Howser and Andrew E. Haseldon, both of Columbia, for Respondents.

PER CURIAM:

William P. Hatfield, individually, and on behalf of the Hyman Law Firm, brought an action against Susan Van Epps to recover attorney's fees she owed Law Firm. Van Epps filed a counterclaim, asserting legal malpractice. Van Epps appeals the trial judge's decision to grant a directed verdict in Law Firm's favor on a portion of her malpractice cause of action and from the jury verdict, asserting the trial judge made numerous errors. We affirm in part, reverse in part, and remand.

FACTS

Van Epps and Leslie Stewart were married in 1982. Both are physicians. The couple had two sons, born in 1987 and 1989. They separated in 1995, and Stewart filed for divorce that same year. On June 5, 1995, Van Epps hired Evander Jeffords of the Hyman Law Firm to represent her in the divorce. At the time of the divorce, Stewart was a member of Pee Dee Surgical Group. When Van Epps hired Jeffords, he was also representing a senior partner of the Pee Dee Group, Dr. Bolick, in his divorce.

Pursuant to Law Firm's recommendation, Van Epps obtained twenty affidavits from witnesses favoring her on the issue of child custody. Van Epps was awarded custody at the temporary hearing. At the divorce trial, Law Firm failed to call any witnesses to testify on Van Epps' behalf on the custody issue. In fact, of the three witnesses besides Van Epps who were called by Law Firm, two testified in support of its claim for attorney's fees.¹

In assessing the value of the Pee Dee Group for purposes of equitable distribution, Jeffords suggested Van Epps use Carroll Webster, a CPA whom Jeffords was also using in Bolick's divorce action. At the time Jeffords selected him to perform the valuation for Van Epps, Webster was performing personal accounting work for Van Epps and Stewart, and he was also the CPA for Pee Dee Surgical Group. Webster used two contracts signed by the members of the Pee Dee Group, a Stockholder Redemption Agreement and a Salary Continuation Agreement,² in order to value the practice for the Bolick divorce. Jeffords asked Webster to use the same formula in his valuation of the medical practice for Van Epps' divorce.

Stewart filed his action for divorce in June of 1995. The merits hearing was held on April 15 and 16, and May 28-30, 1996. The only expert valuation of the Pee Dee Surgical Group introduced at trial came from Webster, who testified the practice had a value of approximately $52,000, using the Salary Continuation Agreement, and a value of $665, using the formula set forth in the Shareholder Redemption Agreement. Stewart averred in his financial declaration that the value of the practice was zero.

The family court ultimately granted Van Epps a divorce based on Stewart's adultery. The court granted Stewart custody of the parties' two children and ordered Van Epps to pay child support of $2,500 per month. The family court adopted Webster's value of $52,258.00 for the practice. On March 15, 1996, one month prior to the first day of the merits hearing, a Stock Purchase Agreement was executed between McLeod Physician Services, Inc., and the four shareholders of the Pee Dee Surgical Group whereby McLeod agreed to purchase Stewart's practice for 3.1 million dollars. Pursuant to the contract, the closing was scheduled for March 14, 1997. Stewart ultimately received $775,000 for his interest pursuant to the sale.

Law Firm commenced this action in November of 1998 to recover attorney's fees from Van Epps in the sum of $52,120. Van Epps counterclaimed, alleging Law Firm was negligent in its representation in her divorce. She claims Law Firm failed to present numerous witnesses regarding the custody issue, failed to obtain a proper valuation of the Pee Dee Surgical Group, and failed to inform her of a conflict of interest. The trial judge directed a verdict in favor of Law Firm on the custody issue and sent the remaining issues to the jury. After an Allen³ charge, the jury found for Law Firm, awarding it $52,120 in attorney's fees, and found in favor of Law Firm on Van Epps' counterclaim. After a successful request for prejudgment interest of $18,100 on the original attorney's fees, Law Firm was awarded an additional $19,090.37 in attorney's fees and costs. Under the trial judge's order, the judgment against Van Epps totaled $89,310.37. Van Epps appeals.

LAW/ANALYSIS

I. Child Custody

Van Epps argues the trial judge erred in directing a verdict in favor of Law Firm on the claim of legal malpractice regarding the child custody issue. We agree.

Van Epps contends the trial judge erred in directing a verdict in Law Firm's favor where there was evidence that Law Firm's breach of the duty owed to her was the proximate cause of child custody being granted to Stewart. When reviewing an order granting a directed verdict, this court views the evidence in the light most favorable to the party against whom the verdict was granted. Carson v. Adgar, 326 S.C. 212, 216, 486 S.E.2d 3, 5 (1997).

It is undisputed that at the final divorce hearing, Law Firm did not call any witnesses, other than Van Epps herself, in support of her claim for custody. Stanley Feldman, an attorney, testified for Van Epps as an expert witness. He opined Law Firm deviated from the standard of care by failing to call any witnesses on Van Epps' behalf. According to Feldman: "[Law Firm's] failure to call witnesses in this case fell below the standard, made the performance, or made the work below the standard in all fairness." He also testified that: "I think there has been a deviation from the standard of care in the failure to present those witnesses and failure to present a proper custody case." In response to Van Epps' counsel's question as to whether he had an opinion as to "most probably whether or not the failure to call those witnesses was a contributing proximate cause ... to the loss of her children," Feldman responded, "Yes, sir." No motion was made to strike Feldman's testimony.

At the conclusion of Van Epps' case, Law Firm moved for a directed verdict on the ground that the evidence failed to establish that Law Firm's breach of duty to Van Epps was the proximate cause of any damages. The trial judge ruled that because Feldman did not testify that Law Firm's deviation from the standard of care most probably caused her to lose custody, the evidence was not sufficient to submit the claim to the jury.

In granting Law Firm's motion for a directed verdict, the trial judge relied on Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). There, the supreme court stated that "before expert testimony is admissible upon the question of the causal connection between plaintiffs injuries and the acts of the defendant, the testimony must satisfy the `most probably' rule." Id. at 111, 410 S.E.2d at 543. Nevertheless, the Baughman decision also specifically holds that: "In determining whether particular evidence meets this test it is not necessary that the expert actually use the words `most probably.' It is sufficient that the testimony is such `as to judicially impress that the opinion ... represents his professional judgment as to the most likely one among the possible causes.'" Id. (quoting Norland v. Washington General Hospital, 461 F.2d 694, 697 (8th Cir.1972)).

Feldman fell short of testifying that Law Firm's failure to call any witnesses, other than Van Epps, on the issue of custody was the sole cause of her loss of custody; however, this was not necessary in order to withstand Law Firm's motion for directed verdict. See Sims v. Hall, 357 S.C. 288, 299, 592 S.E.2d 315, 319 (Ct.App.2003) ("Proximate cause does not mean the sole cause. The defendant's conduct can be a proximate cause if it was at least one of the direct, concurring causes of the injury."). While expert testimony is normally required in a professional negligence action to establish both the standard of care and the defendant's failure to conform to that standard, Feldman's testimony satisfied that requirement. Feldman clearly testified that Law Firm deviated from the standard of care in representing Van Epps and that this breach of care was a contributing proximate cause in the loss of custody of her children. This evidence was sufficient to create a jury issue as to whether the alleged breach of the standard of care proximately caused damage to Van Epps. Stallings v. Ratliff, 292 S.C. 349, 353, 356 S.E.2d 414, 417 (Ct.App.1987) ("The issue of breach of duty does not turn on a ritual incantation of certain magic words by an expert witness. Breach of duty is a fact question to be decided by the jury on the evidence presented in each case.").

The trial judge erred in refusing to submit the issue of Law Firm's negligence in its handling of Van Epps' custody claim to the jury. Accordingly, we reverse and remand this issue for a new trial.

II. Child Custody Affidavits

Van Epps also argues the trial judge erred in failing to allow the custody affidavits into evidence. We agree.

As noted earlier, Van Epps procured twenty affidavits which were submitted to the family court at the temporary hearing. Van Epps attempted to introduce these affidavits into evidence in this action. The trial judge sustained Law Firm's objection to their introduction on the basis of hearsay. This was error.

It is well settled that a statement that is not offered to prove the truth of the matter asserted should not be excluded as hearsay. R & G Constr., Inc., v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 439, 540 S.E.2d 113, 121 (Ct.App.2000). These...