Petrou v. Hale

• Decision Date: 20 November 1979
• Docket Number: No. 789SC1151,789SC1151
• Citation: 260 S.E.2d 130,43 N.C.App. 655
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Homer D. PETROU v. Davis R. HALE and Hubert H. Senter.

Page 130

260 S.E.2d 130

43 N.C.App. 655

In the Matter of Homer D. PETROU v. Davis R. HALE and Hubert H. Senter.

No. 789SC1151.

Court of Appeals of North Carolina.

Nov. 20, 1979.

Hollowell, Silverstein, Rich & Brady, by Ben A. Rich, Raleigh, for plaintiff appellant.

Hubert H. Senter, pro se.

ERWIN, Judge.

Plaintiff contends the trial court erred in entering summary judgment on its claims of malicious prosecution, abuse of process and negligence. We disagree.

"(T)he party moving for summary judgment has the burden of 'clearly establishing the lack of any triable issue of fact by the record properly before the court. . . .' " Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E.2d 419, 421 (1979). One means of meeting this burden is to show that an essential element of the opposing party's claim is nonexistent. Moore v. Fieldcrest Mills, Inc., supra; Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974).

Want of probable cause is an essential element of a cause of action for malicious prosecution, Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978), and whether probable cause exists is a question of law for the court when the facts are admitted or established. Pitts v. Pizza, Inc., supra, and Carson v. Doggett and Ward v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950).

There is no dispute between the parties as to what was the basis for Senter's filing of the malpractice suit. Defendant Hale had informed Senter that: plaintiff had operated on him to remove hemorrhoids; after not being able to have bowel movements some ten days later, Hale advised plaintiff of his condition for which plaintiff merely prescribed hot baths; when his pain persisted and his stomach and abdomen became swollen, Hale obtained a pair of rubber gloves, inserted his fingers, and removed a rubber or plastic tube and gauze packing from his rectum; afterwards, he was able to have bowel movements. Based on these undisputed revelations of fact, Senter, an attorney, advised Hale that a cause of action for malpractice existed against plaintiff, and Hale employed Senter to represent him. Under these circumstances, we must determine whether, as a matter of law, probable cause existed for Senter to file suit against plaintiff.

Probable cause is:

" '(T)he existence of circumstances and facts sufficiently strong to excite, in a reasonable mind, suspicion that the person charged with having been guilty was guilty. It is a case of apparent guilt as contra-distinguished from real guilt. It is not essential that there should be positive evidence at the time the action is commenced, but the guilt should be so apparent at the time, as would be sufficient ground to induce a rational and prudent man, who duly regards the rights of others as well as his own, to institute a prosecution; not that he knows the facts necessary to insure a conviction, but that there are known to him sufficient grounds to suspect that the person he charges was guilty of the offense.' "

Carson v. Doggett and Ward v. Doggett, 231 N.C. at 633, 58 S.E.2d at 611-12; Smith v. Deaver, 49 N.C. 513, 514-15. Applying this test, we hold that, under the stated facts before him, defendant Senter had probable cause to file suit on behalf of his client.

An attorney owes a duty to his client to exert his best judgment in the prosecution of the litigation entrusted to him. Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954). In the good faith exercise of his judgment, an attorney cannot be a seer of what the outcome of a suit will be. That is for the court and oftentimes, the jury to resolve. Thus, the mere termination of a lawsuit in favor of an adverse party does not mean that there was a want of probable cause to believe on a set of stated facts that a cause of action did exist. Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965); Gray v. Gray, 30 N.C.App. 205, 226 S.E.2d 417 (1976). Plaintiff would have us impose liability on an attorney when the outcome of his client's suit is not in accord with the facts as related to him by the client. Sound public policy dictates that private litigants have free access to the courts as a means of settling private claims or disputes. See N.C.Const. art. 1, § 18; Lyddon v. Shaw, 56 Ill.App.3d 815, 14 Ill.Dec. 489, 372 N.E.2d 685 (1978); Spencer v. Burglass, 337 So.2d 596 (La.Ct. of App.1976). Senter was merely the instrument through which Hale invoked the judicial determination as to the validity of his claim. See Spencer v. Burglass, supra.

We are aware that it has long been the law in our State " 'that advice of counsel, however learned, on a statement of facts, however full, does not of itself, and as a matter of law, afford protection to one who has instituted an unsuccessful prosecution against another; but such advice is only evidence to be submitted to the jury' on the issues of probable cause and malice," Bassinov v. Finkle, 261 N.C. 109, 112, 134 S.E.2d 130, 132 (1964); Bryant v. Murray, 239 N.C. 18, 24, 79 S.E.2d 243, 247 (1953), and find no conflict with out decision today. We have merely held that on the statement of facts as related to the attorney in this case, probable cause existed for an institution of a lawsuit for malpractice on behalf of his client. The trial court did not err in entering summary judgment on plaintiff's claim of malicious prosecution.

Abuse of Process

" '(T)he test as to whether there is an abuse of process is whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.' " (Citations omitted.)

Finance Corp. v. Lane, 221 N.C. 189, 196, 19 S.E.2d 849, 853 (1942). In other words, the gravamen of a cause of action for abuse of process is the improper use of the process after it has been issued. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979); Benbow v. Caudle, 250 N.C. 371, 108 S.E.2d 663 (1959); Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955); Finance Corp. v. Lane, supra.

Plaintiff has failed to present any evidence of an abuse of process after defendants instituted the prior malpractice action. Plaintiff's allegation "(t)hat the sole purpose of the Defendants and each of them, in filing and maintaining said action, was to coerce the Plaintiff and his malpractice insurance carrier into making a cash settlement in order to free themselves from said false, malicious, and vexacious (sic) litigation" without any evidence of subsequent misuse of process lawfully issued does not state a cause of action for abuse of process. An ulterior motive alone is not sufficient. Edwards v. Jenkins, 247 N.C. 565, 101 S.E.2d 410 (1958); Byrd, Malicious Prosecution in North Carolina, 47 N.C.L.Rev. 285, 288 (1969). The court's entry of summary judgment on plaintiff's abuse of process claim was proper.

Negligence

Plaintiff's third count of his complaint alleges a cause of action in negligence. It alleges that defendant Senter fell below the standard of care required of attorneys in performance of their professional duties and breached a duty owed to an opposing party in a malpractice suit to properly investigate the facts and the law, to review hospital records, and to consult medical experts before filing a malpractice suit.

In Insurance Co. v. Holt, 36 N.C.App. 284, 244 S.E.2d 177 (1978), we held that claims for relief for attorney malpractice are actions sounding in contract and may properly be brought only by those who are in privity of contract with such attorneys by virtue of a contract providing for their employment. In Insurance Co. v. Holt, supra, a general contractor who was made a defendant in an indemnity action by a title insurance company filed a third-party complaint against the certifying attorneys in the real estate transaction for negligent failure to ascertain the existence of property liens of unpaid creditors. Since our decision in Insurance Co. v. Holt, supra, we have decided the recent cases of Davidson and Jones, Inc. v. County of New Hanover, 41 N.C.App. 661, 255 S.E.2d 580 (1979), and Shoffner Industries, Inc. v. W. B. Lloyd Construction Co., 42 N.C.App. 259, 257 S.E.2d 50 (1979).

In Davidson, supra, we held that an architect who was not in privity of contract with a general contractor or his subcontractors could be held liable to the general contractor and the subcontractors for economic loss resulting from breach of a common law duty of care.

Similarly, in Shoffner Industries, Inc., supra, we held that an...