Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis

356 S.E.2d 372 (1987)

PROGRESSIVE SALES, INC. and Leasing Associates, Inc., (Debtors-in-Possession under the Jurisdiction of the United States District CourtBankruptcy DivisionMiddle District of North Carolina) v. WILLIAMS, WILLEFORD, BOGER, GRADY & DAVIS, a North Carolina Law Partnership consisting of John Hugh Williams, John R. Boger, Jr., Samuel F. Davis, Jr., Brice J. Willeford, Jr., Thomas M. Grady & M. Slate Tuttle, Jr., and Williams, Boger, Grady, Davis & Tutle, P.A., (a North Carolina Professional Corporation), and Dan Alan Boone.

No. 8619SC1008.

Court of Appeals of North Carolina.

June 2, 1987.

*374 Mullins & Van Hoy by Michael P. Mullins, Charlotte, for plaintiffs-appellants.

Hartsell, Hartsell & Mills, P.A., by W. Erwin Spainhour, Concord, for defendants-appellees.

JOHNSON, Judge.

Plaintiffs' record on appeal presents twenty-nine Assignments of Error essentially alleging that most of the findings of fact below are contrary to the evidence presented. Plaintiffs' brief contains arguments based on two of those Assignments of Error. Our review is limited to those two Assignments of Error. The remaining twenty-six Assignments of Error not raised in the brief are deemed abandoned on appeal. Rule 28(b)(5), N.C.Rules App.P.

In general, plaintiffs argue that the trial court erred by allowing defendants' motion for involuntary dismissal after plaintiffs' evidence and dismissing the action with prejudice. Specifically, they argue that the trial court erred by finding that plaintiffs failed to put on any evidence of the applicable *375 standard of care for attorneys in the same or similar community, and that the evidence was insufficient to show that defendant Boone lacked the requisite skill necessary to practice that other attorneys similarly situated possess. After reviewing the evidence from the trial below, we agree with the trial court's finding that plaintiffs failed to put on proper evidence of an applicable standard of care for attorneys similarly situated, and properly granted an involuntary dismissal to defendants with prejudice.

"When a motion to dismiss pursuant to 41(b) is made, the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him." Dealers Specialties, Inc., v. Neighborhood Housing Services, Inc., 305 N.C. 633, 640, 291 S.E.2d 137, 141 (1982). The trial judge in a non-jury case does not weigh the evidence in the light most favorable to the plaintiff as he does on a motion for directed verdict in a jury trial. Id. at 638, 291 S.E.2d at 13. Dismissal with prejudice pursuant to a Rule 41(b) motion is a judgment on the merits, subject to the usual rules of res judicata. Barnes v. McGee, 21 N.C.App. 287, 289, 204 S.E.2d 203, 205 (1974).

A plaintiff in a legal malpractice action must prove by a preponderance of the evidence that the attorney breached the duties owed to his client as set forth in Hodges v. Carter, 239 N.C. 517, 519, 80 S.E.2d 144, 145-46 (1954), was thereby negligent, and that this negligence proximately caused damage to the plaintiff. Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 365-66 (1985). The duties from Hodges, supra, at 519, 80 S.E.2d at 145-46, are as follows:

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause. (citations omitted).

Plaintiffs did not offer at trial the testimony or affidavits of attorneys practicing commercial law in defendants' legal community. Rather, defendants' counsel at one point during trial said that attorneys in Cabarrus County do not usually file security agreements as financing statements as allowed under G.S. 25-9-402. In their brief before this Court plaintiffs argue that expert testimony is not required in a legal malpractice action. Plaintiffs cite language from Rorrer, supra, at 356, 329 S.E.2d at 366, which says that "[e]xpert testimony is helpful [in legal malpractice actions] to establish what the standard of care as applied in the investigation and preparation of medical malpractice lawsuits requires and to establish whether the defendant-attorney's performance lived up to such a standard." Plaintiffs' citation from Rorrer is incomplete. While this language does not mandate that expert testimony be introduced in a medical malpractice action, the Court in Rorrer, supra, also stated that:

The third prong of Hodges requires an attorney to represent his client with such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. The standard is that of members of the profession in the same or similar locality under similar circumstances.

(Emphasis supplied). Although Rorrer does not mandate introducing expert testimony in a legal malpractice action, that case does stress the need to establish the standard of care in the same or similar legal community. Plaintiffs in the case sub judice argue that there was sufficient evidence that Boone lacked the requisite degree of learning, skill, and ability that other attorneys similarly situated possess. The evidence at trial is clear as to what Boone did and did not do. What is not clear is the standard by which Boone's acts *376 and omissions are to be weighed. That is the purpose of putting on evidence as to the standard of care in a malpractice lawsuit; to see if this defendant's actions "lived up" to that standard. Rorrer, supra. In Rorrer, upon which plaintiffs rely, the Court held that the affidavit of an attorney offered by the plaintiff to show the applicable standard of care failed to state affirmatively what the standard of care required the defendant attorney to do, but was merely an opinion as to the importance of having more than one medical witness in a medical malpractice action. In the case sub judice, there is not so much as an affidavit from another attorney. Without any evidence as to the standard of care, plaintiffs failed to get past the first prong of the Rorrer test. Accordingly, this Court need not address plaintiffs' other contentions. The judgment appealed from granting defendants' motion for involuntary dismissal with prejudice is

Affirmed.

EAGLES and ORR, JJ., concur.