Podrebarac v. Horack, COA20-619

Docket NºNo. COA20-619
Citation279 N.C.App. 624, 866 S.E.2d 495
Case DateOctober 05, 2021
CourtCourt of Appeal of North Carolina (US)

279 N.C.App. 624
866 S.E.2d 495

Donald PODREBARAC, Plaintiff,
v.
HORACK, TALLEY, PHARR & LOWNDES, P.A., and Gena G. Morris, Defendants.

No. COA20-619

Court of Appeals of North Carolina.

Filed October 5, 2021


The Law Offices of James Scott Farrin, by Paul R. Dickinson Jr., Gary W. Jackson, Charlotte, and Christopher R. Bagley, Durham, for the Plaintiff-Appellant.

Poyner Spruill LLP, by Cynthia L. Van Horne, for the Defendants-Appellees.

DILLON, Judge.

279 N.C.App. 625

¶ 1 Plaintiff Donald R. Podrebarac appeals from an order granting summary judgment for Defendants, Horack, Talley, Pharr & Lowndes, P.A., and Gena G. Morris. We vacate and remand.

I. Background

¶ 2 Plaintiff commenced this action claiming Defendants committed legal malpractice in their representation of him in an equitable distribution matter (the "domestic case") against his ex-wife. During the mediation in the domestic case, Plaintiff and his ex-wife verbally agreed to a distribution of assets. At the conclusion of the mediation, they signed a document (hereinafter the "Stipulations") that essentially outlined what they had just verbally agreed to. Further, the Stipulations provided that they agreed to formalize the terms pertaining to "property settlement and alimony provisions" in a to-be-drafted settlement agreement.

¶ 3 When Defendants presented the Stipulations to the trial court on behalf of their client (Plaintiff) for entry, Defendants mistakenly forgot to attach an accompanying "Asset Chart" and failed to have the Stipulations notarized. See N.C. Gen. Stat. § 50-20(d) (2009) (requiring that to settle equitable distribution with a stipulation, the stipulation must be notarized). The Asset Chart was significant as it set forth the agreed-upon distribution of all property between the parties.

¶ 4 In any event, a document entitled "Marital Property Settlement Agreement" was circulated amongst the Plaintiff and his ex-wife to formalize their oral agreement, but neither signed the document. Notwithstanding the foregoing, for two years, Plaintiff and his ex-wife acted in lockstep with the terms set forth in this unsigned document.

¶ 5 At some point, though, Plaintiff's ex-wife began questioning the legitimacy of the Stipulations, triggering Plaintiff to file a Motion for Declaratory Judgment. Plaintiff's ex-wife responded with a motion to dismiss. The court ruled in her favor, finding the Stipulations to be unenforceable, primarily because they were not notarized.

¶ 6 After continued litigation, Plaintiff and his ex-wife finally settled the dispute, though Plaintiff found the terms less favorable than the terms he thought he and his wife had orally agreed to at their mediation.

279 N.C.App. 626

¶ 7 Because of the "unfavorable" settlement in the domestic case, Plaintiff filed this

866 S.E.2d 497

present malpractice action, claiming that Defendants’ failure to properly file the Stipulations caused further litigation with his ex-wife, resulting in additional legal fees and a less favorable result. In response, Defendants filed a motion to dismiss based on the statute of limitations, which the trial court granted. On appeal, in Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A. , 231 N.C. App. 70, 752 S.E.2d 661 (2013), we reversed and remanded. Upon remand, the parties proceeded with discovery, but ultimately, the trial court entered an order granting summary judgment for Defendants. Plaintiff timely appealed.

II. Standard of Review/Legal Malpractice

¶ 8 The standard of review on appeal from a grant of summary judgment is de novo. Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC , 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012). "The party moving for summary judgment is entitled to judgment as a matter of law only when there is no genuine issue of material fact." Creech v. Melnik , 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998).

¶ 9 As for legal malpractice, to prevail against one's attorney, the client must show "(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).

III. Analysis

¶ 10 The trial court entered summary judgment against Plaintiff based on two different theories: (1) the Stipulations do not constitute an enforceable agreement as it was an "agreement to agree," so Plaintiff could not establish proximate cause of any harm by Defendants’ failures obtaining the trial court's acceptance of the Stipulations; and (2) Plaintiff's claim is barred by the statute of limitations. We disagree and conclude that a genuine issue of material fact exists on both issues.

A. Binding Agreement or...

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1 practice notes
  • Wake Radiology Diagnostic Imaging LLC v. N.C. Dep't of Health & Human Servs., COA20-759
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...like our State's certificate of need laws—a regime that has spawned a legion of lawyers and other experts who learn to navigate the 866 S.E.2d 495 intricate language chosen by our General Assembly. The role of the judicial branch is not to speculate about the consequences of the language th......
1 cases
  • Wake Radiology Diagnostic Imaging LLC v. N.C. Dep't of Health & Human Servs., COA20-759
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 5, 2021
    ...like our State's certificate of need laws—a regime that has spawned a legion of lawyers and other experts who learn to navigate the 866 S.E.2d 495 intricate language chosen by our General Assembly. The role of the judicial branch is not to speculate about the consequences of the language th......

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