Royster v. McNamara

• Decision Date: 07 February 2012
• Docket Number: No. COA11–714.,COA11–714.
• Citation: Royster v. McNamara, 723 S.E.2d 122 (N.C. App. 2012)
• Parties: Kevin ROYSTER, Plaintiff v. Thomas D. McNAMARA, Defendant.
• Court: North Carolina Court of Appeals

723 S.E.2d 122

Kevin ROYSTER, Plaintiff

v.Thomas D. McNAMARA, Defendant.

No. COA11–714.

Court of Appeals of North Carolina.

Feb. 7, 2012.

Appeal by plaintiff from order entered 8 December 2010 by Judge Benjamin G. Alford in Onslow County Superior Court.Heard in the Court of Appeals 17 November 2011.

Jeffrey S. Miller, Jacksonville, for Plaintiff–Appellant.

Yates, McLamb & Weyher, L.L.P., Raleigh, by Dan J. McLamb and Kathrine E. Fisher, for Defendant–Appellee.

ERVIN, Judge.

PlaintiffKevin Royster appeals from an order granting summary judgment in favor of DefendantThomas McNamara and dismissing his allegation that he is entitled to damages for “emotional” injury.After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court erred by granting summary judgment in favor of Defendant and dismissing Plaintiff's request for damages for “emotional” injury and that this case should be remanded to the Onslow County Superior Court for further proceedings not inconsistent with this opinion.

I.Factual Background

Plaintiff; his father, Warren Royster; his grandmother, Barbara Jackson; and his mother, Brenda J. McClain, were involved in the operation of East Coast Imports, a sole proprietorship which purchased wrecked and salvaged automobiles for the purpose of rebuilding and reselling them or using them as a source of second-hand parts.Although East Coast Imports was owned by Ms. Jackson, Warren Royster served as its General Manager, Ms. McClain functioned as its secretary and bookkeeper, and Plaintiff worked as a salesman.An investigation by the License and Theft Division of the North Carolina Division of Motor Vehicles revealed that an individual named Stacey Greene had purchased a Saturn automobile from East Coast Imports.Although East Coast Imports represented that the vehicle was a 1993 Saturn that had been driven approximately 77,000 miles, the vehicle in question was, in fact, a 1992 Saturn that had been driven for 226,945 miles and had been sold to East Coast Imports as a “parts only” vehicle, which meant that it could not be appropriately registered or licensed for operation on North Carolina roads.The dashboard vehicle identification plate, the vehicle identification decal on the driver's side door, and the odometer had been removed from an unrepairable 1993 Saturn and installed on the 1992 Saturn sold to Ms. Greene in such a manner as to appear original.

On 4 May 2004, Ms. Greene filed a complaint against Warren Royster, Ms. Jackson, Ms. McClain, and Plaintiff, doing business as East Coast Imports, in which she sought to recover damages for fraud and unfair and deceptive trade practices.Plaintiff, Warren Royster, Ms. Jackson, and Ms. McClain retained Defendant to represent them in this proceeding.The action filed by Ms. Greene came on for trial before the trial court and a jury at the 10 October 2005 civil session of Onslow County Superior Court.On 13 October 2005, the jury returned a verdict finding in favor of Ms. Greene on the fraud claim and awarding her $1,911.00 in compensatory damages and $500,000.00 in punitive damages (which was reduced to $250,000.00 in accordance with N.C. Gen.Stat. § 1D–25).On the same date, the trial court entered judgment in accordance with the jury's verdict, as modified.

On 24 October 2005, Plaintiff, Warren Royster, Ms. Jackson, and Ms. McClain filed a motion for a new trial pursuant to N.C. Gen.Stat. § 1A–1,Rule 59.On 23 March 2006, the trial court entered an order denying this new trial motion.Plaintiff, Warren Royster, Ms. Jackson, and Ms. McClain noted an appeal to this Court from the trial court's judgment.On 6 November 2007, this Court filed an opinion affirming the trial court's judgment and upholding the denial of the motion for a new trial as to Plaintiff.Greene v. Royster,187 N.C.App. 71, 81–82, 652 S.E.2d 277, 284(2007).

On 29 October 2008, Plaintiff filed a complaint against Defendant seeking to recover damages for professional negligence.In his complaint, Plaintiff alleged that he had never had any “dealings whatsoever with [Ms.] Greene” or any involvement with “East Coast Imports that in any way impacted [Ms.] Greene” and that, except for Defendant's negligent failure to move for a directed verdict in his favor at trial, Plaintiff would not have had “judgment entered against him in the amount of $251,911.00.”In his answer, Defendant asserted that the trial court's order denying Plaintiff's motion for a new trial and our decision to affirm the trial court's ruling established that “more than a scintilla of evidence” supported Ms. Greene's claims against Plaintiff so that the trial court would have denied a directed verdict motion had one been made on Defendant's behalf.In addition, Defendant asserted that Plaintiff's claims were barred on collateral estoppel and res judicata grounds.On 9 July 2009, Plaintiff voluntarily dismissed his complaint against Defendant without prejudice pursuant to N.C. Gen.Stat. § 1A–1,Rule 41(a).

Plaintiff refiled his complaint against Defendant on 2 July 2010.Although the complaint that Plaintiff filed on 2 July 2010 was essentially identical to the one that he had voluntarily dismissed without prejudice on 9 July 2009, Plaintiff did allege for the first time in his refiled complaint that, as a result of Defendant's negligence, “[Plaintiff][had] been prevented from enjoying a normal life, [was] forced to undergo humiliation and emotional damage, and [had] suffered other damages....”In his answer, Defendant reiterated the defenses that he had asserted in his initial answer and alleged that Plaintiff's claims for “emotional damages and any other emotional distress” should be disregarded because they had not been asserted in Plaintiff's original complaint.On 25 August 2010, Defendant filed a motion seeking summary judgment in his favor on the grounds that (1) the record in the underlying case established as a matter of law that, had a motion for directed verdict in Plaintiff's favor been made at the original trial, it would have been denied; (2)Plaintiff's claim was barred by the doctrines of collateral estoppel and res judicata; and (3)Plaintiff's emotional distress claim had not been asserted in his original complaint.On 8 December 2010, the trial court entered an order allowing Defendant's motion.Plaintiff noted an appeal to this Court from the trial court's order.

II.Legal Analysis

A.Appropriateness of Summary Judgment

On appeal, Plaintiff contends that the trial court erred by granting summary judgment in favor of Defendant by “giving the Defendant[ ] the benefits of the doctrine of res judicata.”Although the trial court appears to have relied on the doctrine of collateral estoppel rather than the doctrine of res judicata in deciding to dismiss Plaintiff's complaint, we believe that Plaintiff's challenge to the trial court's decision has merit.

In seeking summary judgment, Defendant contended that there was no genuine issue of material fact concerning whether the injuries that Plaintiff claims to have sustained were proximately caused by Defendant's negligence.More specifically, Defendant argued that Plaintiff's complaint was subject to dismissal because the issue of whether Plaintiff was liable to Ms. Greene on the basis of fraud had been fully and fairly litigated in the underlying case.As a result, Defendant contended that Plaintiff was collaterally estopped from arguing that he had not defrauded Ms. Greene and that Plaintiff could not establish that his alleged injuries were proximately caused by Defendant's negligence because the record developed in Greene,“including the Judgment, the jury's verdict, the Order denying [Plaintiff's] Motion for [a] New Trial, all findings of fact and conclusions of law in that Order, and other pleadings and filings[,]” established that a motion for directed verdict, had one been asserted, would and should have been denied.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.”N.C. Gen.Stat. § 1A–1,Rule 56(c).“A defendant may show [that]he is entitled to summary judgment ‘by (1) proving that an essential element of the plaintiff's case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.’ ”Young v. Gum,185 N.C.App. 642, 645, 649 S.E.2d 469, 472(2007)(quotingJames v. Clark,118 N.C.App. 178, 181, 454 S.E.2d 826, 828, disc. review denied,340 N.C. 359, 458 S.E.2d 187(1995)), disc. review denied,362 N.C. 374, 662 S.E.2d 552(2008).We review an order granting summary judgment de novo, Howerton v. Arai Helmet, Ltd.,358 N.C. 440, 470, 597 S.E.2d 674, 693(2004), viewing the record evidence in the light most favorable to the nonmoving party.ABL Plumbing & Heating Corp. v. Bladen Cty. Bd. of Educ.,175 N.C.App. 164, 167–68, 623 S.E.2d 57, 59(2005), disc. review denied,360 N.C. 362, 629 S.E.2d 846(2006).

In a legal malpractice action, “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 [ v. Carter ], 239 N.C. 517, [519–20], 80 S.E.2d 144[, 145–46 (1954) ] and that [the attorney's] negligence (2)proximately caused(3) damage to the plaintiff.”Rorrer v. Cooke,313 N.C. 338, 355, 329 S.E.2d 355, 365–66(1985)(emphasis added).In order to establish the necessary proximate cause, “a plaintiff is required to prove that he would not have suffered the harm alleged absent the negligence of his attorney.”Hummer v. Pulley,...