Little v. Matthewson

• Court: North Carolina Court of Appeals
• Writing for the Court: JOHNSON; EAGLES; LEWIS; LEWIS
• Citation: Little v. Matthewson, 442 S.E.2d 567, 114 N.C.App. 562 (N.C. App. 1994)
• Decision Date: 03 May 1994
• Docket Number: No. 933SC279,933SC279
• Parties: Lizzie LITTLE, Plaintiff, v. Glennie M. MATTHEWSON, II, Matthewson & Daniels, P.A., and Glennie M. Matthewson, II, Administrator of the Estate of Jeanne Daniels Matthewson, Defendants.

Page 567

442 S.E.2d 567

114 N.C.App. 562

Lizzie LITTLE, Plaintiff, v. Glennie M. MATTHEWSON, II, Matthewson & Daniels, P.A., and Glennie M. Matthewson, II, Administrator of the Estate of Jeanne Daniels Matthewson, Defendants.

No. 933SC279.

Court of Appeals of North Carolina.

May 3, 1994.

Jeffrey L. Miller, Greenville, for plaintiff-appellant.

No brief filed for defendants-appellees.

JOHNSON, Judge.

This appeal is a malpractice action brought by plaintiff against defendant-attorneys who previously represented her in a slip and fall case against Pitt County Memorial Hospital.

The facts relative to the slip and fall case are as follows: On 12 July 1983, plaintiff went to Pitt County Memorial Hospital to visit sick relatives; while there, plaintiff slipped on a floor which had just been waxed. There were no warning or caution signs displayed in the area advising plaintiff or others of the hazardous floor condition. Plaintiff suffered personal injuries and incurred medical expenses. Plaintiff employed defendant-attorneys in April 1986 to handle her claim against the hospital.

On 11 July 1986, one day before the statute of limitations would have run, defendant-attorneys filed an application and order for a twenty-day extension to file a complaint, which was granted. The date of the fall was not stated in the application. On 31 July 1986, the last day of the extension, defendant-attorneys filed a formal complaint. In the complaint, defendant-attorneys mistakenly referred to the date of the alleged injury as 7 July 1983 instead of 12 July 1983. Although plaintiff informed defendant-attorneys of the correct date before they filed the complaint on her behalf, defendant-attorneys failed to make the correction. The hospital, accordingly, asserted the statute of limitations as a defense, based on the fact that the complaint alleged that the injury occurred on 7 July 1983, more than three years before the institution of plaintiff's lawsuit on 11 July 1986.

On 7 February 1987, defendant-attorneys filed a voluntary dismissal without prejudice without first seeking to correct the date mentioned in the complaint. On 2 February 1988, another attorney for plaintiff filed an action against the hospital on plaintiff's behalf. The trial judge dismissed that case on 30 March 1988, finding that it was barred by the statute of limitations.

As a result, on 28 June 1989, plaintiff instituted the present action against defendant-attorneys, seeking to recover damages based upon their negligent handling of her slip and fall case. Plaintiff alleged defendant-attorneys were negligent in filing a complaint containing an inaccurate date, in failing to correct the date, in failing to amend the complaint to correct the date, and in dismissing the action without first correcting the date. In their answer, defendant-attorneys admitted the existence of the attorney-client relationship, the correct date of plaintiff's fall, and that they failed to include the correct date in the complaint.

This malpractice action came on for trial at the 26 October 1992 civil session of Pitt County Superior Court. At the close of plaintiff's evidence, the trial court directed a verdict for defendant-attorneys. Plaintiff filed timely notice of appeal to our Court.

Plaintiff argues on appeal that the trial court committed reversible error in directing a verdict for defendant-attorneys. A directed verdict motion tests the legal sufficiency of the evidence to go to the jury. The trial court must consider the evidence in the light most favorable to the plaintiff, giving plaintiff the benefit of all reasonable inferences. Snead v. Holloman, 101 N.C.App. 462, 400 S.E.2d 91 (1991). If there is more than a scintilla of evidence supporting each element of the plaintiff's case, the directed verdict motion should be denied. Id. Review by an appellate court is limited to examining the grounds asserted in the directed verdict motion. Southern Bell Telephone & Telegraph Co. v. West, 100 N.C.App. 668, 397 S.E.2d 765 (1990), aff'd per curiam, 328 N.C. 566, 402 S.E.2d 409 (1991).

An attorney's legal obligation to his or her client has been set forth by our Supreme Court, to-wit:

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause. (Citations omitted.)

. . . . .

[H]e is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care. (Citations omitted.)

Rorrer v. Cooke, 313 N.C. 338, 341, 329 S.E.2d 355, 358 (1985), quoting Hodges v. Carter, 239 N.C. 517, 519-20, 80 S.E.2d 144, 145-46 (1954).

"In a professional malpractice case predicated upon a theory of an attorney's negligence, the plaintiff has the burden of proving by the greater weight of the evidence: (1) that the attorney breached the duties owed to his client, as set forth by Hodges, 239 N.C. 517, 80 S.E.2d 144, and that this negligence (2) proximately caused (3) damage to the plaintiff." Rorrer, 313 N.C. at 355, 329 S.E.2d at 365-66. "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 his favor; and (3) The judgment would have been collectible." Id. at 361, 329 S.E.2d at 369.

Plaintiff argues that defendant-attorneys based their directed verdict motion on two grounds. The first ground is that plaintiff failed to present expert testimony and evidence establishing a breach of the standard of care; the second is that plaintiff failed to establish that the underlying claim was valid, would have resulted in a judgment in her favor, and would have been collected.

We first address whether plaintiff failed to present expert testimony and evidence establishing a breach of the standard of care. In Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis, 86 N.C.App. 51, 356 S.E.2d 372 (1987), our Court made reference to Rorrer, noting "[a]lthough Rorrer does not mandate introducing expert testimony in a legal malpractice action, that case does stress the need to establish the standard of care in the same or similar legal community.... [T]he purpose of putting on evidence as to the standard of care in a malpractice lawsuit [is] to see if this defendant's actions 'lived up' to that standard." Id. at 56, 356 S.E.2d at 375.

Our Court recently addressed the issue of whether the standard of care was established in a legal malpractice action in Haas v. Warren, 112 N.C.App. 574, 436 S.E.2d 259 (1993). After reciting the duties of an attorney promulgated in Hodges and expounded upon in Rorrer, our Court held that the standard of care in Haas had not been established. Our Court noted that the proffered testimony was "evidence of what other attorneys [in the same or similar community] do, not evidence of what they should do which is what is required by Hodges and Rorrer." Id. at 579, 436 S.E.2d at 262 (emphasis retained).

We believe the standard of care has been established in the case sub judice. Attorney T.F. Harris, whose experience included twenty-seven years of practicing law, almost exclusively in civil litigation, testified at trial for plaintiff. Attorney Harris served as attorney for Pitt County Memorial Hospital in the slip and fall case underlying the instant appeal. He testified that pursuant to the North Carolina Rules of Civil Procedure, plaintiff sought and obtained a twenty-day extension of time within which to file her complaint, and Attorney Harris explained that this is a procedure which is used when a statute of limitations period is about to expire. He testified further that because the complaint alleged that the accident occurred on 7 July 1983, he believed plaintiff had been four days late asking for the twenty-day extension, and that in Attorney Harris' answer to plaintiff's complaint he therefore raised the defense of the statute of limitations, i.e., "that [the] suit [was] not filed within [an] appropriate period of time." Later, while testifying further about the motion to dismiss and how to make an amendment to a complaint, Attorney Harris was asked if the North Carolina Rules of Civil Procedure "are rules that govern the practicing lawyers in North Carolina in the courts and in civil actions[.]" Attorney Harris noted that the North Carolina Rules of Civil Procedure "are the uniform procedural rules that all lawyers have to abide by." We find that Attorney Harris' testimony was evidence of what other attorneys in the same or similar community "should do." Indeed, in matters involving the statute of limitations, we believe a statewide standard for all licensed attorneys in North Carolina exists in that all licensed attorneys have the duty to maintain basic minimum levels of competency. When accepting a case from a client, the applicable statute of limitations is one of the very first matters which an attorney examines. And, as evidenced herein, incorrectly stating the relevant dates on a plaintiff's complaint can result in the dismissal of what might otherwise be a valid claim.

Moreover, as we have stated...