An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1041
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
DOUGLAS S. HARRIS,
Plaintiff,
v. Guilford County
No. 12 CVS 5643
LISA BALLANTINE,
Defendant.
Appeal by plaintiff from order entered 8 March 2013 by
Judge John O. Craig, III in Guilford County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Douglas S. Harris, pro se, for plaintiff-appellant.
Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady
Richardson, Jr., for defendant-appellee.
DAVIS, Judge.
Douglas S. Harris (“Plaintiff”) appeals from the trial
court’s 8 March 2013 order granting in part and denying in part
the motions for summary judgment of Plaintiff and Lisa
Ballantine (“Defendant”). Plaintiff’s primary contention on
appeal is that the entry of summary judgment on the issue of
whether he committed legal malpractice was improper due to the
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existence of genuine issues of material fact. After careful
review, we vacate the trial court’s order and remand for further
proceedings.
Factual Background
In August 2010, Park Sterling Bank (“the Bank”) brought an
action (“the Bank Lawsuit”) against Defendant in New Hanover
County Superior Court seeking a deficiency judgment against her
in connection with her default on a loan. Defendant retained an
attorney, Kevin Sink (“Mr. Sink”), to represent her in the Bank
Lawsuit.
On 16 December 2010, the Bank served Defendant, through Mr.
Sink, with written discovery requests, including a request for
admissions pursuant to Rule 36 of the North Carolina Rules of
Civil Procedure. On 28 January 2011, Defendant terminated the
services of Mr. Sink1 and instructed him to send her case file to
another attorney, Al Butler (“Mr. Butler”), who was representing
Defendant’s husband in a separate matter. Mr. Butler noted that
responses to the Bank’s pending discovery requests were due on
17 February 2011. As a result, he obtained an extension of the
deadline until 21 March 2011. On 21 March 2011, Mr. Butler
obtained another extension of time, extending the deadline to 13
1
It appears from the record that Mr. Sink never actually
withdrew as Defendant’s counsel of record in the Bank Lawsuit.
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May 2011 while Defendant “pursued the possibility of filing a
bankruptcy petition.”
On 6 May 2011, Defendant met with Plaintiff, an attorney in
Greensboro, to discuss both the Bank Lawsuit and the possibility
of her filing a bankruptcy petition. The events that transpired
at this meeting are disputed by the parties. Defendant contends
that Plaintiff agreed to represent her in the Bank Lawsuit and
to respond to the Bank’s pending request for admissions.
Plaintiff, conversely, maintains that he did not agree to
represent her in the Bank Lawsuit and instead merely stated his
willingness to “assist” her in preparing her responses to the
Bank’s request for admissions.
On 16 May 2011, the Bank’s attorney emailed Defendant and
informed her that
I have not heard anything further from you
in response to my recent emails and most
importantly I have had no response (or have
any other arrangements been made for a
further extension) to my request for the
completed discovery documents no later than
May 13[.] To this end, please be advised
that I plan on moving for summary judgment
in order to reduce this matter to judgment.
I am sorry but I cannot continue to hold
this matter in abeyance any longer as I have
held the matter for months now on Al
Butler’s assurance that he would be filing a
bankruptcy petition for you which we now
know is not the case.
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On 20 June 2011, after failing to receive Defendant’s
responses by that date, the Bank filed a motion for summary
judgment, requesting that each matter contained within its
request for admissions be deemed admitted as provided for in
Rule 36(a). On that same day, the Bank sent Defendant a letter
stating, in pertinent part, as follows:
Most recently, I received a call from
attorney Douglas Harris who indicated that
he would be making an appearance in this
matter. Although I did not grant an
extension or agree that the deemed admitted
responses to the requests for admissions
would be waived[.] Mr. Harris indicated
that he was forwarding the discovery
responses and I should receive them no later
than May 23, 2011. To date, no discovery
responses have been received and my calls to
Mr. Harris have gone un-returned. This
matter appears on the trial calendar for
August 15, 2011 . . . Please be advised that
I intend to rely on the deemed admitted
responses to the request for admissions and
will not waive this position.
On 1 July 2011, Defendant spoke with another attorney,
Grady Richardson (“Mr. Richardson”), who agreed to represent
Defendant in the Bank Lawsuit. On 27 July 2011, Mr. Richardson
served the Bank’s attorney with Defendant’s responses to the
Bank’s request for admissions along with two affidavits. The
first affidavit addressed issues presented in the Bank Lawsuit
while the second affidavit detailed her interactions with Mr.
Sink and Mr. Harris and asserted that she had “been prejudiced
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in this action by the failures and ineffectiveness of [Mr.
Sink]. . . and [Plaintiff].” In addition, Mr. Richardson also
filed a motion to “[w]ithdraw and/or [a]mend [a]dmissions . . .
pursuant to Rule 36(b) of the North Carolina Rules of Civil
Procedure.” The motion was granted by the Honorable Charles H.
Henry who entered an order on 3 August 2011 stating that
“Defendant’s responses dated 27 July 2011 to Plaintiff’s Request
for Admissions shall be allowed.” The Bank subsequently
withdrew its motion for summary judgment, and on 29 June 2012,
the Bank settled its lawsuit with Defendant for $7,250.00.
Plaintiff filed the present action in Guilford County
Superior Court on 24 April 2012 seeking a declaratory judgment
that he “never represented [Defendant] on any legal matter and
has never been retained whether by contract or payment or
agreement to represent [Defendant] on any legal matter.” In
response, Defendant filed counterclaims alleging professional
negligence, legal malpractice, and breach of fiduciary duty. On
20 February 2013, Plaintiff filed a motion for summary judgment
pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure, and on 25 February 2013, Defendant filed a cross-
motion for summary judgment.
The trial court heard the parties’ respective motions for
summary judgment on 4 March 2013. On 8 March 2013, the court
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entered an order (1) denying Plaintiff’s motion for summary
judgment as to his declaratory judgment claim; (2) finding that
Plaintiff had committed legal malpractice; (3) granting
Plaintiff partial summary judgment as to the claims for damages
asserted by Defendant in her counterclaims; (4) finding
Plaintiff “liable to the Defendant for nominal damages of
$1.00”; (5) granting Defendant’s motion for summary judgment as
to Plaintiff’s claim for declaratory relief; and (6) ordering
Plaintiff to pay Defendant the total sum of $9,214.20,
consisting of $8,590.00 in attorneys’ fees pursuant to N.C. Gen.
Stat. § 6-21.5 and $264.20 in costs based on N.C. Gen. Stat. §
7A-305.
In response to an exchange of emails between the parties
and the trial court over whether Defendant had sufficiently
requested an award of special damages in her counterclaims,
Defendant filed on 2 April 2013 a motion for reconsideration
pursuant to Rule 60(b). However, before the trial court ruled
on this motion, Plaintiff filed a notice of appeal to this Court
regarding the trial court’s 8 March 2013 order.
On 24 September 2013, Defendant filed a motion notifying
this Court of the pending Rule 60(b) motion and requesting that
the case be remanded to the trial court for ruling on that
motion. This Court entered an order on 7 October 2013 remanding
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the matter to the trial court for it to “conduct an evidentiary
hearing on the Rule 60(b) motion pending before it . . . and
[to] indicate what action it would be inclined to take were an
appeal not pending before this Court.”
In response to this Court’s order, an evidentiary hearing
on the Rule 60(b) motion was held by the trial court on 14
November 2013. On 25 November 2013, the trial court entered an
order stating that if it had jurisdiction to rule on Defendant’s
Rule 60(b) motion, it would be inclined to award Defendant’s
“requested attorneys’ fees, costs and expenses as damages
arising out of, and proximately caused by, [Plaintiff’s] legal
malpractice and negligence in the Bank Lawsuit . . . .”
Analysis
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows 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.”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008) (citation and quotation marks omitted). The role of the
trial court in ruling on a motion for summary judgment “is to
determine whether a genuine issue of material fact exists, but
not to decide an issue of fact.” Broyhill v. Aycock & Spence,
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102 N.C. App. 382, 389, 402 S.E.2d 167, 172, aff'd per curiam,
330 N.C. 438, 410 S.E.2d 392 (1991).
In the present case, the key issue before us is whether the
trial court usurped the role of the fact-finder in its 8 March
2013 order. Because the record reveals the existence of genuine
issues of material fact, we conclude that the trial court’s
order must be vacated.
An attorney-client relationship is formed “when a client
communicates with an attorney in confidence seeking legal advice
regarding a specific claim and with an intent to form an
attorney-client relationship.” Raymond v. N.C. Police
Benevolent Ass’n., Inc., 365 N.C. 94, 98, 721 S.E.2d 923, 926
(2011). Such a relationship may be implied by the parties’
conduct “and is not dependent on the payment of a fee, nor upon
the execution of a formal contract . . . . The dispositive
question . . . is whether [the] attorney’s conduct was such that
an attorney-client relationship could reasonably be inferred.”
Booher v. Frue, 98 N.C. App. 585, 587, 392 S.E.2d 105, 106,
disc. review. denied, 328 N.C. 89, 402 S.E.2d 410 (1991)
(internal citations and quotation marks omitted). “[I]n a
professional malpractice case predicated upon a theory of an
attorney's negligence, the plaintiff has the burden of proving
by the greater weight of the evidence: (1) that the attorney
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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)
(citations omitted).
In support of her motion for summary judgment, Defendant
submitted an affidavit in which she testified that (1) on 6 May
2011, she traveled to Greensboro at the request of Plaintiff to
discuss issues surrounding the Bank Lawsuit; (2) during this
meeting, Plaintiff agreed to represent her in the Bank Lawsuit
and agreed to contact the Bank’s attorney regarding the deadline
for her responses to the Bank’s request for admissions; (3) the
Bank’s attorney emailed Defendant that the discovery responses
were due by 13 May 2011; (4) on 16 May 2011, the Bank’s attorney
emailed Defendant that no extension to the 13 May 2011 deadline
had been granted and that he would be seeking the entry of
summary judgment; (5) Defendant called Plaintiff after receiving
the Bank attorney’s email at which time Plaintiff told her that
he had left a message for the Bank’s attorney and would call him
again in order to obtain an extension; (6) Plaintiff
subsequently informed Defendant that the Bank’s attorney had
agreed to extend the deadline until 23 May 2011; (7) on 23 May
2011, Plaintiff told Defendant that he was going to submit the
responses to the Bank’s attorney by the end of the day; (8) on
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22 June 2011, Defendant was served with the Bank’s motion for
summary judgment which “shocked and surprised” her; and (9)
Defendant attempted to contact Plaintiff to ascertain why the
discovery responses had not been submitted but never received an
explanation from Plaintiff.
In response to Defendant’s motion for summary judgment,
Plaintiff submitted an affidavit in which he gave the following
account of the key events: (1) on 6 May 2011, Plaintiff met
with Defendant to discuss a “bankruptcy matter” and during this
meeting they also discussed the Bank Lawsuit; (2) Plaintiff
never agreed to represent Defendant in the Bank Lawsuit nor did
he agree to “answer admissions and other discovery requests
pursuant to the Bank Lawsuit”; (3) during the 6 May 2011
meeting, he merely agreed to “assist her in timely preparing and
responding to the bank’s [request for admissions]” and then
proceeded to provide such assistance via a phone conversation in
which he discussed proposed discovery responses with her over
the course of an hour “with the expectation that she would be
answering and that she would be filing them”; (4) the only
conversation he had with the Bank’s attorney was a single phone
call at Defendant’s request in which Plaintiff informed the
Bank’s attorney that Defendant would provide her responses
shortly and asked the Bank’s attorney “if he would have any
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problem switching mediators because [Defendant] did not like the
current one”; and (5) no payment arrangements were ever agreed
upon between Plaintiff and Defendant.
Based on the competing factual assertions contained in the
parties’ respective affidavits regarding the events at issue, we
believe that resolution of this case at the summary judgment
stage was improper. There is conflicting evidence in the record
regarding the specific contours of any attorney-client
relationship that may have existed between Plaintiff and
Defendant. We have previously vacated a trial court’s entry of
summary judgment in a legal malpractice action where factual
disputes existed regarding the alleged attorney-client
relationship. See Broyhill, 102 N.C. App. at 389-90, 402 S.E.2d
at 172 (concluding that trial court’s entry of summary judgment
in malpractice action was improper where parties disputed
whether attorney had actually been retained to represent
plaintiff in real estate transaction); Ives v. Real-Venture,
Inc., 97 N.C. App. 391, 399, 388 S.E.2d 573, 578 (holding that
trial court erred in granting summary judgment on legal
malpractice claim where genuine issue of material fact existed
as to whether attorney had duty to conduct title search or
obtain title insurance on behalf of party asserting malpractice
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claim), disc. review. denied, 327 N.C. 139, 394 S.E.2d 174
(1990).
In the present case, it will be the role of the fact-finder
at trial to determine the nature of any attorney-client
relationship that may have existed between the parties and
whether any applicable duty of care arising out of that
relationship was breached by Plaintiff. Accordingly, we vacate
the trial court’s order and remand this case for trial. Because
we are vacating the trial court’s order, we decline to address
the remaining arguments raised by the parties.
Conclusion
For the reasons stated above, we vacate the trial court’s 8
March 2013 order and remand for further proceedings.
VACATED AND REMANDED.
Judges STROUD and McCULLOUGH concur.
Report per Rule 30(e).