Javurek v. Jumper
| Decision Date | 01 March 2005 |
| Docket Number | No. COA04-466,COA04-466 |
| Citation | 609 SE 2d 498,168 NC App. 728 |
| Parties | JAMES LESLIE JAVUREK, Plaintiff, v. SHARON DUNIGAN JUMPER, Defendant. |
| Court | North Carolina Court of Appeals |
This case not for publication
Mecklenburg County No. 02 CVS 21892.
James Leslie Javurek, plaintiff-appellant, pro se.
Sharon D. Jumper, defendant-appellee, pro se.
James Leslie Javurek ("plaintiff") appeals the trial court's order granting Sharon Dunigan Jumper's ("defendant") motion for summary judgment. We affirm.
Plaintiff met defendant, an attorney formerly licensed in North Carolina, through a mutual acquaintance in October 2000. They discussed the possibility of defendant representing plaintiff regarding tax issues. Plaintiff had failed to file federal and state tax returns over the course of several years. The parties established an attorney-client relationship and plaintiff wrote a check for $2,000.00 to defendant. Plaintiff consulted with defendant over a course of action to defend him against a potential criminal tax indictment. Defendant counseled plaintiff about possibly filing a civil action against a third party who previously advised plaintiff not to file his taxes. Plaintiff paid defendant an additional $15,000.00 to begin construction of the lawsuit. In December 2000, defendant told plaintiff that the civil action could no longer be pursued due to potential violations of the North Carolina Rules of Civil Procedure and Code of Professional Conduct. Defendant proposed another course of action, which plaintiff declined to follow. Plaintiff requested refund of the $15,000.00 fee from defendant. Defendant refused, calling the payment a "non-refundable flat fee."
Plaintiff sought restitution through various channels such as fee dispute resolution, grievance proceedings, and criminal charges against defendant. Plaintiff later learned that defendant: (1) had several liens levied for her failure to pay employment taxes; (2) was a party to civil proceedings as a defendant; (3) was charged with five instances of obtaining property by false pretenses; (4) entered a guilty plea to a charge of Financial Transaction Card Fraud under N.C. Gen. Stat. § 14-113.13(a)(2)(d); and (5) was disbarred from the North Carolina State Bar for misappropriating money from her client trust account and failing to perfect criminal and civil proceedings for her clients.
On 6 December 2002, plaintiff filed a pro se complaint against defendant for: (1) legal negligence; (2) legal malpractice; (3) fraud and/or constructive fraud; (4) defamation per se and/or libelper se; (5) breach of contract and/or quantum meruit; and (6) punitive damages. Defendant answered on 6 January 2003. Plaintiff submitted several affidavits and documents relating to third-party complaints against defendant. Defendant filed a Motion in Limine requesting that the trial court not consider plaintiff's "extrinsic evidence" pertaining to "collateral issues," which the trial court granted on 3 July 2003. Both parties simultaneously filed motions for summary judgment. Plaintiff's motion was denied. The trial court later granted defendant's motion on 16 September 2003. Plaintiff appeals.
The issue before this Court is whether the trial court erred in granting defendant's motion for summary judgment on plaintiff's six claims.
Plaintiff asserts the trial court erred in granting summary judgment in favor of defendant for the six claims filed: (1) legal negligence; (2) legal malpractice; (3) fraud and/or constructive fraud; (4) defamation per se and/or libel per se; (5) breach of contract and/or quantum meruit; and (6) punitive damages. We disagree. First, we discuss the applicable law governing each of plaintiff's claims. Second, we consider whether summary judgment was properly entered on each claim.
A plaintiff alleging legal malpractice must prove: "(1) that the attorney breached the duties owed to his client . . . 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) (citations omitted).
In a negligence action alleging legal malpractice, summary judgment for the defendant is proper where the evidence fails to establish negligence on the part of the defendant, establishes contributory negligence on the part of the plaintiff, or establishes that the alleged negligent conduct was not the proximate cause of the injury.
Belk v. Cheshire, 159 N.C. App. 325, 328, 583 S.E.2d 700, 703 (2003).
The essential elements of fraud are: "(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Rowan County Bd. of Education v. U.S. Gypsum Co., 332 N.C. 1, 17, 418 S.E.2d 648, 658-59 (1992) (citations omitted). The representation must be "definite and specific," distinguishing it from "puffing, guesses, or assertions of opinions . . . . " Id. at 17, 418 S.E.2d at 659 (citations omitted).
Constructive fraud requires plaintiffs to show "that they and defendants were in a 'relation of trust and confidence . . . [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.'" Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)). "Constructive fraud differs from actual fraud in that 'it is based on a confidential relationship rather than a specific misrepresentation.'" Barger, 346 N.C. at 666, 488 S.E.2d at 224 (quoting Terry v. Terry, 302 N.C. 77, 85, 273 S.E.2d 674, 678-79 (1981)). The "relationship of attorney and client creates such a relationship of trust and confidence." Fox v. Wilson, 85 N.C. App. 292, 299, 354 S.E.2d 737, 742 (1987) (citations omitted). The plaintiff's evidence must prove the defendant sought to benefit herself. Barger, 346 N.C. at 666, 488 S.E.2d at 224.
Under North Carolina Law, slander per se is "an oral communication to a third person which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2)an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease." Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C. App. 274, 277, 450 S.E.2d 753, 756 (1994) (citations omitted), disc. rev. denied, 340 N.C. 115, 456 S.E.2d 318 (1995).
Renwick v. News and Observer and Renwick v. Greensboro News, 310 N.C. 312, 317, 312 S.E.2d 405, 409 (1984) (citing Flake v. Greensboro News Co., 212 N.C. 780, 787, 195 S.E. 55, 60 (1938)), reh'g denied, 310 N.C. 749, 315 S.E.2d 704 (1984), cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121 (1984). The publication need not include the imputation of a crime, moral turpitude, or immoral conduct. Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979) (citing Kindley v. Privette, 241 N.C. 140, 84 S.E.2d 660 (1954)). However, the words must be of such a nature that the trial court "can presume as a matter of law that they tend to disgrace and degrade the party or hold him up to public hatred, contempt or ridicule, or cause him to be shunned and avoided." Flake, 212 N.C. at 786, 195 S.E. at 60.
A claim for breach of contract requires the showing of a valid contract that "existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach." Claggett v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997) (citing RGK, Inc. v. Guaranty Co., 292 N.C. 668, 235 S.E.2d 234 (1977); Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 160 S.E.2d 476 (1968)).
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