Summer v. Allran

• Decision Date: 21 August 1990
• Docket Number: No. 8926SC1114,8926SC1114
• Citation: 394 S.E.2d 689,100 N.C.App. 182
• Court: North Carolina Court of Appeals
• Parties: Mary Anne SUMMER, Plaintiff, v. William J. ALLRAN, III and Allran & Allran, Defendants.

Page 689

394 S.E.2d 689

100 N.C.App. 182

Mary Anne SUMMER, Plaintiff, v. William J. ALLRAN, III and Allran & Allran, Defendants.

No. 8926SC1114.

Court of Appeals of North Carolina.

Aug. 21, 1990.

Tucker, Hicks, Hodge and Cranford, P.A. by John E. Hodge, Jr. and Fred A. Hicks, Charlotte, for plaintiff-appellant.

Bailey & Dixon by David M. Britt, Gary S. Parsons and Alan J. Miles, Raleigh, and Carpenter & James by James R. Carpenter, Gastonia, for defendants-appellees.

WELLS, Judge.

Plaintiff argues on appeal that the trial court erred in granting defendants' motion for directed verdict at the close of all the evidence. She contends that the evidence of attorney malpractice was sufficient to go to the jury. For the reasons which follow, we disagree.

In ruling on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor. West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985) and cases cited therein. Only where the evidence, when so considered, is insufficient to support a verdict in the nonmovant's favor should the motion for directed verdict be granted. Id. Applying these principles to the present case, defendants are not entitled to a directed verdict unless plaintiff has failed as a matter of law to show actionable negligence. Everhart v. LeBrun, 52 N.C.App. 139, 277 S.E.2d 816 (1981).

In order to show actionable negligence in a legal malpractice action, the plaintiff must prove by the greater weight of the evidence that the attorney breached the duties owed to his client as set forth by Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954), and that this negligence proximately caused damage to the plaintiff. Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985). Specifically, when a plaintiff brings suit for legal malpractice, plaintiff must show that but for the negligence of defendant, plaintiff would have suffered no "loss." In order to meet this burden, plaintiff must prove three things: (1) that the original claim was valid; (2) it would have resulted in a judgment in plaintiff's favor; and (3) the judgment would have been collectible. Id.; see also Bamberger v. Bernholz, 326 N.C. 589, 391 S.E.2d 192 (1990) (reversing 96 N.C.App. 555, 386 S.E.2d 450 (1989) for reasons stated in dissenting opinion of Lewis, J.)

In this case plaintiff contends that as a result of negligent legal representation by defendant Allran and his law firm, she suffered "loss" in the form of lost alimony, reduced child support, and an inadequate share of the couple's marital property. Plaintiff's contentions must fail, however, because the record reveals that plaintiff's claims have already been addressed and that, in fact, the resulting judgments either were not in plaintiff's favor or were settled by mutual agreement between plaintiff and Garry Summer. Plaintiff testified that a few months after signing the separation agreement drafted by defendant Allran, she filed suit against her former husband in Mecklenburg County. In that action, plaintiff asked for equitable distribution of marital property temporary alimony and "subsistence" and for the separation agreement to be set aside. The case was transferred to Gaston County. An order was issued in Gaston County dismissing the claims for temporary alimony and "subsistence" and granting the claim for setting aside the separation agreement. A subsequent order dated 7 April 1983 was also entered in Gaston County. It addressed issues including custody, possession of the marital...