Harris v. Maready , 84 N.C. App. 607 ( 1987 )

353 S.E.2d 656 (1987)

Shirley T. HARRIS
v.
W.F. MAREADY, William H. Petree, C. Roger Harris, and Petree, Stockton, Robinson, Vaughn, Glaze and Maready.

No. 8621SC620.

Court of Appeals of North Carolina.

March 17, 1987.

James, McElroy & Diehl, P.A. by William K. Diehl, Jr., Charlotte, for plaintiff-appellant.

Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and Jill R. Wilson, Greensboro, for defendants-appellees.

JOHNSON, Judge.

We must determine if the trial court properly granted summary judgment on the counts which plaintiff has not voluntarily dismissed, to wit: (1) Count I negligence, (2) Count II breach of contract, (3) Count IV fraud and misrepresentation, (4) Count VII respondeat superior. The dispositive issue that we must decide is whether plaintiff's forecast of evidence presented a material issue of fact with respect to damages she would not have incurred but for defendants' conduct. If so, defendants were not entitled to summary judgment. We hold that there is no triable material issue of fact regarding plaintiff's allegations that she has suffered damages as a proximate result of defendants' conduct. Accordingly, we affirm the summary judgment entered by the trial court in favor of defendants.

Rule 56, N.C.Rules Civ.P. states, inter alia, the following:

The judgment sought shall be rendered forthwith 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.

"The rules governing summary judgment motions are now familiar and need not be repeated here." Rorrer v. Cooke, 313 N.C. 338, 340, 329 S.E.2d 355, 358 (1985) (summary judgment was appropriate in an attorney malpractice action where affidavits presented by plaintiff in response to defendant's motion for summary judgment failed to forecast evidence that would show that defendant's alleged negligence was a proximate cause of the loss of her medical malpractice suit in that they failed to establish that if the attorney had done anything differently plaintiff would have been successful in a medical malpractice action).

Although plaintiff's complaint sets forth several causes of action there is one requisite element that is common to each cause of action that plaintiff alleges in her complaint, to wit: damages. Plaintiff's allegations of damages and affidavits with statements to the effect that but for defendants' conduct she would have received a "property settlement" and a larger alimony award, at best, are speculative.

The record on appeal in the case sub judice reveals that in the alimony action against her husband, plaintiff, represented by defendant Maready, submitted an affidavit stating her monthly needs as $4,563.15. However, the evidence, which was not substantially in dispute, established that for several years Mr. Harris had provided plaintiff with approximately $2,000.00 per month for her personal expenses (this amount was taken from Mr. Harris' after-tax income).

The trial court ordered Mr. Harris to pay $3,000.00 per month as an alimony award (77CVD1765). Mr. Harris appealed from that order to this Court. In an unpublished opinion this Court upheld the trial court's award of alimony. This court noted, as the record on appeal in the case sub judice bears out; that the trial court followed the requirements of G.S. 50-16.5 in determining the amount of alimony to meet the needs of plaintiff. Defendant Maready, in his deposition, which was uncontradicted by plaintiff, states that this $3,000.00 per month alimony award was the largest alimony award ordered by a Forsyth County judge and successfully defended on appeal.

We have thoroughly reviewed the record on appeal and as the trial court concluded, there is no material issue of fact upon which to base a denial of defendants' motion for summary judgment. The forecast of evidence that was before the trial court did not reveal any way in which defendant Maready's conduct in the representation of Ms. Harris proximately caused any damages which plaintiff alleged.

Defendant Maready, in his representation of plaintiff, relied upon and presented to the trial court the most reliable and accurate information pertaining to C.R. Harris' financial status, to wit: supporting documentation of C.R. Harris' financial status and income which was tendered by C.R. Harris to lending institutions; and C.R. Harris' income tax returns. There is no question that defendant Maready successfully apprised the trial court that C.R. Harris was a man of considerable wealth. The financial statement Mr. Harris had filed with a bank showed net assets of over $2,750,000.00 and a net worth of $2,500,000.00. The income tax statement defendant Maready relied upon revealed Mr. Harris' gross income to be $125,000.00. In this regard we find no basis for any assertions that the law firm in any way is liable to her for damages or affected defendant Maready's representation of plaintiff such that she was deprived of a larger alimony award.

Plaintiff contends that defendant Maready breached a duty to her and breached an "oral contract" with her by not instituting separate lawsuits against C.R. Harris for alleged forgeries of her name on deeds in which she merely held a marital interest; and that she lost a "litigation advantage" and possible causes of action against her former husband because defendant Maready did not institute separate lawsuits against C.R. Harris prior to her divorce. We find that there is no merit to plaintiff's argument and that summary judgment was proper.

Plaintiff's complaint alleges that defendant Maready breached an "oral contract" with her as follows:

SECOND COUNT (BREACH OF CONTRACT)

....

40. In July, 1976, Maready entered into an oral contract with Plaintiff whereby in consideration for Plaintiff's payment of legal fees, Maready agreed to perform professional legal services for her, including the pursuit of litigation against C.R. Harris for his fraudulent misconduct in forging signatures on deeds to property.

41. Plaintiff has, at all times, performed all the agreements in the contract to be performed on her part. At the time and manner specified.

42. Maready refused to perform the conditions of the contract on his part as hereinbefore alleged and as a result, Plaintiff has been damaged.

43. Maready abandoned the contract and refused to render professional services without reasonable cause.

44. Plaintiff discovered Defendant['s] breach of contract on or about January 18, 1979.

(Emphasis supplied.)

In her breach of contract claim plaintiff merely makes a generalized assertion that she has been "damaged." We find nothing in the forecast of evidence that would justify a jury determination of plaintiff's breach of contract claim. In the record on appeal there is nothing in the forecast of evidence to indicate that defendant Maready filed any action on plaintiff's behalf against C.R. Harris for the alleged forged deeds or that he agreed to do so. We have found nothing in the record on appeal to substantiate the bare allegation in plaintiff's complaint that defendant Maready entered into an "oral contract" with plaintiff to pursue "litigation against C.R. Harris for his fraudulent misconduct in forging signatures on deeds to property." Plaintiff, in her brief, states the following: "Mrs. Harris testified that Maready told her the forged instruments would not be used in the alimony claim but would be there ``when we need them.' (S. Harris Dep. I, 190)." Plaintiff also asserts that defendant Maready told her the deeds were "on the back burner." However, we find nothing in the record on appeal that constitutes a sufficient forecast of evidence from which a jury could determine that defendant Maready agreed to represent plaintiff in separate lawsuits against C.R. Harris for his alleged forgeries. Moreover, there is nothing in the forecast of evidence to show that any legal fees paid by plaintiff were at all connected with any alleged agreement by defendant to institute lawsuits against C.R. Harris for his "fraudulent misconduct in forging signatures on deeds to property."

Assuming arguendo that defendant Maready did orally agree to represent plaintiff in separate actions against C.R. Harris, there is no merit to plaintiff's argument that the trial court erred in granting defendants' motion for summary judgment. This Court has held that an attorney-client relationship may be terminated as follows:

As between the attorney and his client, the relationship may in good faith, be dissolved at any time, but the attorney may not be released from litigation in which he appears for the client without first satisfying the court that his withdrawal therefrom is justified, and whether he is justified will depend on the circumstances of that particular situation.

High Point Bank & Trust Co. v. Morgan-Schultheiss Inc., 33 N.C.App. 406, 414, 235 S.E.2d 693, 698-699, cert. den., 293 N.C. 258, 237 S.E.2d 535 (1977), cert. den., 439 U.S. 958, 99 S. Ct. 360, 58 L. Ed. 2d 350 (1978). The forecast of evidence in the instant case reveals that defendant Maready never appeared in court or filed any pleadings on behalf of plaintiff in reference to the alleged forged deeds.

The forecast of evidence presented to the trial court shows that based upon her needs the trial court properly awarded her $3,000.00 per month as alimony. An attorney does not breach a duty to a client by declining to institute a lawsuit that in his or her professional judgment would be fruitless or that he or she considers to be an abuse of process. Moreover, the record on appeal bears out defendants' assertion that defendant Maready protected plaintiff's rights when he assisted plaintiff in her efforts to retain a new lawyer. Defendant Maready turned over all relevant files to plaintiff's newly retained counsel at least a year before the statutes of limitations had run on any of the claims plaintiff sought to have litigated.

For the aforementioned reasons the judgment is

Affirmed.

HEDRICK, C.J., and GREENE, J., concur.