Mali v. Odom

• Decision Date: 23 February 1988
• Docket Number: No. 1124,1124
• Citation: 367 S.E.2d 166,295 S.C. 78
• Court: South Carolina Court of Appeals
• Parties: Shida MALI and Daryoush J. Mali, Respondents, v. M. Glenn ODOM, Appellant. . Heard

Page 166

367 S.E.2d 166

295 S.C. 78

Shida MALI and Daryoush J. Mali, Respondents, v. M. Glenn ODOM, Appellant.

No. 1124.

Court of Appeals of South Carolina.

Heard Feb. 23, 1988.

Decided April 4, 1988.

Lawrence B. Orr and Helen T. McFadden, Bridges and Orr, and Eugene A. Fallon, Jr., Florence, for appellant.

Francis T. Draine, of Draine, McLaren & Lee, Columbia, for respondents.

GOOLSBY, Judge:

This is an attorney malpractice action. The jury awarded the respondents Shida and Daryoush J. Mali $65,000 in actual damages. M. Glenn Odom appeals. The questions on appeal relate to the sufficiency of the evidence as to the applicable standard of care, to the defense of assumption of risk, to the exclusion of certain evidence challenged as hearsay, and to the admission of certain evidence challenged as incompetent. We affirm in part, reverse in part, and remand for a new trial on the issue of actual damages.

On October 18, 1983, the Malis contracted to purchase property in Lakeside Subdivision in Florence County. The property consisted of four lots and a house. Two lots were unrestricted and two were restricted to residential use. The Malis intended to use the property for a school.

Odom, an attorney, was retained by the Malis to examine the title to the property and to handle the closing. Odom knew of the Malis' intention to operate a school on the property.

After the closing, which Odom attended, the Malis began remodeling the house to convert it into a school. Before the school could really get underway, however, adjoining landowners brought an action to enforce the restrictive covenants. The Circuit Court enjoined the Malis from using the two restricted lots for commercial purposes; however, following an appeal, the Supreme Court allowed one lot to be so used. See Rabon v. Mali, 289 S.C. 37, 344 S.E.2d 608 (1986).

The Malis then brought the instant action against Odom alleging he negligently represented them at the closing. Odom's answer denied he was negligent and asserted the affirmative defense of assumption of risk.

I.

Odom argues the trial court erred in failing to grant his motions for directed verdict and judgment notwithstanding the verdict. He contends the Malis did not establish by expert testimony the standard of care owed by Odom. We disagree.

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. Annot., 14 A.L.R.4th 170, 179-80 (1982); 7 Am.Jur.2d Attorneys at Law § 225 at 268-69 (1980); 7A C.J.S. Attorney & Client § 271 b at 499 (1980); see House v. Maddox, 46 Ill.App.3d 68, 4 Ill.Dec. 644, 360 N.E.2d 580 (1977) (the rules of evidence governing the trial of legal malpractice actions are the same as those against a doctor or dentist); cf. Kemmerlin v. Wingate, 274 S.C. 62, 65, 261 S.E.2d 50, 51 (1979) (the standard of care applicable to accountants "is the same as those" applied to doctors and other professionals); Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct.App.1984) (expert evidence is required in a medical malpractice case except where no special learning is needed to evaluate the defendant's conduct).

Here, additional expert testimony was not required because Odom himself, a practicing lawyer, established the applicable standard of care. See Stallings v. Ratliff, 292 S.C. 349, 356 S.E.2d 414 (Ct.App.1987) (expert testimony in a medical malpractice case regarding whether a physician breached a duty to disclose a particular risk was not required to create a jury question where an expert testified and the defendant physician himself admitted there was a duty to disclose and a conflict in testimony existed regarding whether the physician disclosed the risk). In published responses to the Malis' interrogatories, Odom conceded he had the "duty to disclose to the [Malis] the restrictions on the subject property" and the "duty to explain to [them] the impact of the restrictions on the subject property;" and in a published portion of his deposition, Odom agreed "it was incumbent upon [him] to disclose to [THE MALIS] ... COVENANTS OR REStrictiONs on [the] property."

Odom's breach of the applicable standard of care was established by Shida Mali's testimony that she and Odom "never talked about any restrictions," that he never explained to her that she might not be able to operate a school on the property, that "[n]othing was mentioned [at the closing] about restrictive covenants or ... any problem with the school," and that, had Odom explained anything to her "about having a problem ..., [she] would have stopped the closing right then."

We recognize Shida Mali's testimony was contradicted by the testimony of Odom that, at the closing, he informed Shida Mali of the restrictive covenants and of their significance and by the testimony of Jerry Lee Mills, who accompanied Shida Mali to the closing, that Odom at the closing "brought up the fact that there were restrictive covenants on the property." In deciding a motion either for directed verdict or for judgment notwithstanding the verdict, however, the trial judge does not weigh the evidence or determine the credibility of witnesses. South Carolina National Bank v. Silks, 367 S.E.2d 421 (Ct.App. 1988). Jurors do those things when determining their verdict. The trial judge's duty is simply to consider the evidence and all its reasonable inferences in the light most favorable to the nonmoving party and to deny the motion if the evidence yields more than one inference. Id.

II.

Odom further argues the trial court erred in not directing a verdict and in not granting his motion for judgment notwithstanding the verdict on the ground that the Malis assumed the risk involved in closing the transaction since the only reasonable inference to be drawn from the evidence is that he advised the Malis of the existence of the restrictive covenants and they elected to purchase the property anyway. Again, we disagree.

Ordinarily, the question of whether a plaintiff assumed the risk of injury or damage is a question of fact to be determined by the jury. Griffin v. Griffin, 282 S.C. 288, 318 S.E.2d 24 (Ct.App.1984). Here, the question of assumption of risk clearly constituted a jury question since, as we just noted, a factual dispute existed regarding whether Odom advised the Malis concerning the restrictions at any time prior to closing.

III.

Odom also contends the trial court erred in excluding, as hearsay, testimony from Odom's wife concerning certain remarks she overheard him make in a telephone conversation with Shida Mali shortly after the closing.

Any error committed by the trial court in excluding the evidence was harmless. Odom himself testified fully regarding this telephone conversation. See Rutledge v. St. Paul Fire and Marine Insurance Co., 286 S.C. 360, 334 S.E.2d 131 (Ct.App.1985) (the exclusion of testimony from the insurer's expert witness held harmless where the testimony was cumulative to testimony given by the insured).

IV.

A.

Odom next argues the trial court erred in allowing Shida Mali to offer her opinion regarding the present value of the subject property and regarding the value of personal property purchased for the Malis' school. He contends Shida Mali was not qualified to offer expert opinion testimony in these regards.

In South Carolina, an owner is qualified by the fact of ownership to give his or her estimate as to the value of his or her property unless the owner's want of qualification is so complete that his or her testimony is entirely worthless. Seaboard Coast Line R.R. v. Harrelson, 262 S.C. 43, 202 S.E.2d 4 (1974). The record here does not show that Shida Mali's knowledge of her property was so incomplete as to render her testimony about its value inadmissible. The trial court, therefore, committed no error in allowing Shida Mali to testify regarding the values she placed on the real and personal property in issue.

B.

Odom challenges the trial court's admission over his objection of evidence showing the school's anticipated monthly income and expenses. He claims this evidence reflected future lost profits and was speculative. The evidence, contained in three exhibits and offered through Anne Breneman Rowley, the school's director and the person charged with developing the school's curriculum, showed the school anticipated a monthly income of $18,346 and monthly expenses of $10,179.

We agree with Odom that the exhibits and the testimony concerning them provide evidence of future profits from the operation of the...