Appeal by defendants from judgment filed 7 May 2001 and order
dated 31 May 2001, and cross appeal by plaintiff David Norman
Hummer from judgment filed 7 May 2001 by Judge Wade Barber in
Durham County Superior Court. Heard in the Court of Appeals 11
February 2003.
Law Offices of Willie D. Gilbert, II, P.A., by Willie D.
Gilbert, II for plaintiff appellant.
Bailey & Dixon, L.L.P., by Gary S. Parsons and Warren T.
Savage, for defendant appellants.
BRYANT, Judge.
Pulley, Watson, King & Lischer, P.A. (the firm) and Tracy K.
Lischer (Lischer), individually and as agent of the firm,
(collectively, defendants) appeal from (1) a judgment filed 7 May
2001 entered consistent with a jury verdict finding David Norman
Hummer (plaintiff) was damaged by defendants' negligence and
awarding damages, and (2) an order dated 31 May 2001 denying
defendants' motions for new trial and judgment notwithstanding the
verdict. Plaintiff cross-appeals from the judgment filed 7 May2001.
(See footnote 1)
On 13 February 1998, plaintiff and Cynthia Wax Hummer filed a
complaint alleging various causes of action, including breach of
contract, legal negligence (specifically including failure to
request a hearing, failure to fully research the issues involved,
and failure to properly investigate and prepare), negligent
misrepresentation, and negligent infliction of emotional distress,
all of which related to a claim of legal malpractice against
defendants. On 17 March 1998, defendants filed an answer and
third-party complaint against Willie D. Gilbert, II, plaintiff's
current lawyer, and his law firm. In their answer, defendants
asserted affirmative defenses of insulating negligence of
plaintiff's current lawyer and plaintiff's contributory negligence.
In the third-party complaint, defendants sought indemnification
and/or contribution from Mr. Gilbert and his law firm. The trial
court ultimately granted plaintiff partial summary judgment on both
of defendants' affirmative defenses, granted Mr. Gilbert summary
judgment on the third-party complaint, and imposed Rule 11
sanctions on defendants. These rulings of the trial court, except
for the imposition of one $2,500.00 sanction, were subsequently
upheld by this Court in Hummer v. Pulley, Watson, King, & Lischer
P.A., 140 N.C. App. 270, 536 S.E.2d 349 (2000) (Hummer I).
(See footnote 2)
On 11April 2001, defendants filed a motion to amend their answer to
allege the defense of failure to mitigate damages. The trial court
granted this motion on 13 April 2001, the first day scheduled for
trial of this case.
At trial, plaintiff introduced evidence tending to show he was
a “career status” teacher at Northern Durham High School (the
school) on 12 June 1997. While helping to set up for the
graduation ceremony, plaintiff was approached by Tommy Parker (Mr.
Parker), the school's athletic director. Although plaintiff had
formerly coached the women's basketball team, he had resigned that
position under pressure from Mr. Parker, and thus Mr. Parker was no
longer plaintiff's supervisor. For a prior period of approximately
two years, plaintiff and Mr. Parker had been having personal
differences. Mr. Parker called out to plaintiff, but plaintiff did
not respond and instead waved his hand and walked away as had
become his practice during the school year in order to avoid any
conflict. Unbeknown to plaintiff, Mr. Parker had been asked to
give him instructions from the school principal. Later that day,
following the graduation ceremony, plaintiff was working in his
classroom when he was approached by the school principal, Dr. Isaac
Thomas (Dr. Thomas). Dr. Thomas stated that he needed to talk with
plaintiff, and plaintiff inquired if it involved Mr. Parker. Dr.
Thomas responded that it did, and plaintiff stated:
This is ridiculous. I'm out of coaching.
He's not my superior. He doesn't need to tell
me anything. He needs to leave me alone, I'm
going to kick some tail. If you're here to
defend him, let me know. If you want to, I
can add your name to the list. I can kickyour tail too.
Dr. Thomas accused plaintiff of threatening him, ordered plaintiff
to leave the school campus, and stated he would call “Personnel” to
have plaintiff fired. Plaintiff testified he had no intention of
threatening Dr. Thomas, that the phrase “kick some tail” was a
coaching expression, and that he had meant he was going to get to
the bottom of the problem. When plaintiff was subsequently
informed that dismissal proceedings would be initiated, he employed
Lischer and the firm to represent him in any such proceedings.
On 6 August 1997, plaintiff received a letter from Ann
Denlinger, superintendent for Durham Public Schools, informing him
of her intent to recommend to the school board that plaintiff be
dismissed based on grounds of insubordination, neglect of duty,
failure to fulfill duties and responsibilities of a teacher, and
failure to comply with reasonable requirements prescribed by the
school board. The letter further informed plaintiff he had fifteen
days to request a review of the superintendent's recommendation by
a panel of the Professional Review Committee (PRC). It also noted
that if plaintiff did not request a hearing, the superintendent's
recommendation would be submitted directly to the school board.
Plaintiff hand-delivered the superintendent's letter to
Lischer the same day he received it and informed her of his desire
to have a hearing before the PRC. Lischer drafted a letter
requesting a hearing before the PRC and attached a list of PRC
members plaintiff wished to strike from the panel together with a
memorandum of law in support of plaintiff's position detailing howplaintiff's conduct did not support grounds for dismissal. This
request for a PRC hearing was, however, never mailed or delivered
to the superintendent. As a result, on 9 September 1997, the
school board passed a resolution dismissing plaintiff. This
resolution was forwarded to plaintiff by the superintendent with a
covering letter stating, “in light of your failure to request a
hearing on my recommendation for your dismissal, the Board of
Education . . . voted to dismiss you from your position as a
teacher within the Durham Public Schools.” Lischer soon thereafter
discovered her error and was unsuccessful in her attempt to seek to
have the matter reopened. She ultimately terminated her employment
by plaintiff, advising him to seek judicial review of the matter on
his own. We note that defendants concede in their brief that,
under section 115C-325(n) of the North Carolina General Statutes,
judicial review was not available to a career status teacher who is
dismissed without requesting a hearing before the board of
education. See N.C.G.S. § 115C-325 (2001); see also Hummer I, 140
N.C. App. at 282-83, 536 S.E.2d at 357 (failure to request school
board hearing precluded judicial review).
In regard to the claim for negligent infliction of emotional
distress, plaintiff's wife testified in response to the question
“How has this entire episode relating to the termination of your
husband's career . . . made you feel?” “[I]t made me feel sad. It
made me feel angry . . . . All [plaintiff] wanted was his hearing
to be heard, and I know 'til the day I die he wouldn't have lost
his job.” In an effort to show mitigation of his damages,plaintiff also introduced evidence of his unsuccessful attempts to
obtain other teaching positions.
Defendants sought to introduce expert testimony from several
witnesses who had extensive experience in the practice of education
law that the probable outcome of the dismissal proceedings would
not have been different had Lischer, in fact, mailed the request
for a hearing. The trial court refused to admit this evidence on
the ground it invaded the province of the jury as the finder of
fact. Defendants did, however, introduce expert testimony
regarding the availability of teaching positions in counties around
Durham, the difficulty in filling those positions, and plaintiff's
potential earning capacity.
After the presentation of evidence, defendants' motion for
directed verdict was denied, and the jury returned a verdict
finding Lischer or the firm negligent and awarding damages to
plaintiff in the total amount of $595,442.00. The jury, however,
reduced the amount of damages awarded to plaintiff by $124,800.00
based on plaintiff's failure to mitigate his damages. Following
trial, defendants' motions for judgment notwithstanding the verdict
or, in the alternative, a new trial were denied.
_______________________________
The issues on direct appeal are whether: (I) plaintiff
presented sufficient evidence that Lischer's negligence was the
proximate cause of his harm; (II) the trial court erred by not
admitting defendants' expert testimony regarding the probable
outcome had Lischer not been negligent; (III) admission oftestimony by plaintiff's wife of her belief plaintiff would not
have lost his job had he received a hearing was unfairly
prejudicial; and (IV) admission of evidence of earlier proceedings
and post-complaint pleadings in the case were unfairly prejudicial.
The issues on cross-appeal are whether: (V) the trial court abused
its discretion in allowing defendants' motion to amend the answer
and (VI) there was sufficient evidence to support the reduction of
damages by the jury.
Direct Appeal
I
Defendants initially contend the trial court erred by denying
their motions for directed verdict, judgment notwithstanding the
verdict, and new trial. Defendants argue plaintiff presented no
competent evidence that the school board would have decided not to
dismiss plaintiff had a hearing been requested. As such,
defendants claim plaintiff did not establish that the failure to
request a hearing was the proximate cause of plaintiff's dismissal.
A motion for judgment notwithstanding the verdict is a motion
for judgment to be “entered in accordance with an earlier directed
verdict motion.” Smith v. Childs, 112 N.C. App. 672, 682, 437
S.E.2d 500, 507 (1993). As such, the same standards are used in
the review of both motions. Id. In ruling on these motions, “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.” Summer v. Allran, 100 N.C. App. 182,183, 394 S.E.2d 689, 690 (1990). Motions for directed verdict and
judgment notwithstanding the verdict should be denied where there
is more than a scintilla of evidence to support each element of a
plaintiff's case. Clark v. Moore, 65 N.C. App. 609, 610, 309
S.E.2d 579, 580-81 (1983).
In a legal malpractice case, a plaintiff is required to prove
that he would not have suffered the harm alleged absent the
negligence of his attorney. Rorrer v. Cooke, 313 N.C. 338, 361,
329 S.E.2d 355, 369 (1985). A plaintiff in order to prove this
causation element must establish three things: (1) the underlying
claim, upon which the malpractice action is based, was valid; (2)
the claim would have resulted in a judgment in the plaintiff's
favor; and (3) the judgment would have been collectible or
enforceable. Id. In other words, a legal malpractice plaintiff is
required to prove the viability and likelihood of success of the
underlying case as part of the present malpractice claim. This has
been referred to as having to prove “a case within a case.” Kearns
v. Horsley, 144 N.C. App. 200, 211, 552 S.E.2d 1, 8 (2001). This
is true even if the negligent actions of the attorney resulted in
a total foreclosure of the underlying case being heard on its
merits. See id. at 211-12, 552 S.E.2d at 8-9.
Under the case within a case method of proof, the plaintiff in
a legal malpractice action presents the evidence in support of the
underlying claim before the jury (or fact-finder) in the
malpractice action. See Chocktoot v. Smith, 571 P.2d 1255, 1258
(Ore. Sup. Ct. 1977). The malpractice jury, in essence, thendetermines the outcome of the underlying case and from that
determination reaches the malpractice verdict. See id. A
malpractice plaintiff is not required to prove what outcome a
particular fact-finder in the underlying case (i.e. the original
jury or, in this case, the school board) would have reached.
Instead, the malpractice jury must substitute its own judgment in
applying the relevant law, as instructed by the trial court, to the
facts of the underlying case. See id. at 1258-59; see also Smith,
112 N.C. App. at 680, 437 S.E.2d at 506 (“[p]roof of legal
malpractice necessitates an attempt to show what should have
occurred without some error on the part of the attorney”).
In this case, plaintiff's dismissal was grounded in
allegations of insubordination, neglect of duty, failure to fulfill
the duties and responsibilities of a teacher, and failure to comply
with reasonable requirements of the school board. “The term
insubordination imports a willful disregard of express or implied
directions of the employer and a refusal to obey reasonable
orders,” Crump v. Bd. of Educ., 79 N.C. App. 372, 374-75, 339
S.E.2d 483, 485 (1986) (citation omitted) (internal quotations
omitted), and neglect of duty is a failure to perform a duty
imposed either by law or contract, Overton v. Bd. of Educ., 304
N.C. 312, 318, 283 S.E.2d 495, 499 (1981).
Plaintiff presented evidence he was performing his duties as
a teacher and was not willfully disobeying any express or implied
direction or refusing to obey an order of Dr. Thomas. Mr. Parker
was not plaintiff's supervisor and, in fact, plaintiff did not knowMr. Parker was trying to give plaintiff instructions from Dr.
Thomas. Plaintiff further testified Dr. Thomas approached him
about Mr. Parker, while plaintiff was working in his classroom, and
plaintiff had no intent to actually threaten anyone. Furthermore,
the superintendent's letter to plaintiff notifying him of his
dismissal specifically stated that “in light of [plaintiff's]
failure to request a hearing on [the superintendent's]
recommendation . . . the Board of Education voted to dismiss
[plaintiff] from [his] position as a teacher.” This is evidence
tending to show plaintiff's dismissal was based more on procedural
grounds, and not on the actual facts of the encounter with Dr.
Thomas.
We conclude the facts surrounding plaintiff's dismissal as
presented in the record, at best, only questionably support the
allegations against him. Furthermore, even if we were to assume
the school board would have dismissed plaintiff regardless of his
efforts to dispute the charges against him, defendants' negligence
also foreclosed plaintiff from judicial review and a chance to
prove his case in that forum on the same facts. Thus, there was
sufficient evidence, viewed in the light most favorable to
plaintiff, that defendants' failure to request a hearing was the
proximate cause of plaintiff's dismissal. See Smith, 112 N.C. App.
at 682, 437 S.E.2d at 507.
II
Defendants next contend the trial court committed error by not
allowing defense expert testimony to the effect that the schoolboard would have dismissed plaintiff even if defendants had
requested a hearing before the PRC. As discussed in Part I, supra,
it is not necessary to present evidence of what the particular
fact-finder would have done in the underlying case. Moreover,
expert testimony is inadmissible when the expert is testifying to
the legal effect of specific facts. See Smith, 112 N.C. App. at
679-80, 437 S.E.2d at 506. Finally, expert testimony simply
telling the jury the result they should reach is also inadmissible.
See Williams v. Sapp, 83 N.C. App. 116, 120, 349 S.E.2d 304, 306
(1986). In this case, the expert testimony proffered by defendants
was offered to tell the jury what result the school board would
have reached and thus the result the jury should reach as a legal
conclusion from the facts and circumstances of plaintiff's
dismissal. Therefore, the trial court properly excluded
defendants' expert testimony.
III
Defendants also contend the trial court erred in allowing
testimony from plaintiff's wife, in response to a question on how
the circumstances surrounding her husband's dismissal made her
feel, that “all [plaintiff] wanted was his hearing to be heard, and
I know 'til the day I die he wouldn't have lost his job.”
Defendants contend this was an improper expression of opinion, was
an attempt to inflame the jury, and unfairly prejudiced defendants
on the issue of causation.
The record, however, clearly reveals this was the response of
plaintiff's wife to a question directed toward plaintiff's claimfor negligent infliction of emotional distress and mental anguish
as a result of defendants' negligence, and not the proximate cause
of the negligence. The probative value of this testimony on the
issues of emotional distress and mental anguish was not
substantially outweighed by the danger of unfair prejudice. See
N.C.G.S. § 8C-1, Rule 403 (2001). Thus, we find no abuse of
discretion on the part of the trial court in admitting this
testimony. See Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42,
53, 524 S.E.2d 53, 61 (1999) (exclusion of evidence under Rule 403
is left to the sound discretion of the trial court and requires
showing decision was so arbitrary it could not have been the
product of a reasoned decision).
IV
Defendants finally contend the trial court erred in admitting
evidence of earlier proceedings in the case, including defendants'
affirmative defenses of contributory negligence and insulating
negligence, the third-party complaint against plaintiff's attorney
and resulting grant of summary judgment against defendants on those
issues, and the subsequent affirmation of summary judgment and
sanctions against defendants by this Court in Hummer I.
The affirmative defenses and third-party complaint were
founded upon defendants' assertion that plaintiff could have sought
judicial review of his dismissal, despite statutory law to the
contrary, see Hummer I, 140 N.C. App. at 282-83, 536 S.E.2d 349,
356-57, and were relevant to plaintiff's claim that defendants had
failed to properly research the legal issues involved in hisdismissal hearing, see N.C.G.S. § 8C-1, Rule 401 (2001). These
pleadings were also relevant to plaintiff's negligent infliction of
emotional distress claim as they tended to show the continuation of
actions by defendants, which allegedly caused emotional distress
and mental anguish to both plaintiff and his wife. Furthermore,
during her testimony, Lischer gave her opinion that she was no
longer representing plaintiff during the time for filing a petition
for judicial review, and it was the responsibility of plaintiff's
attorney to have filed any such petition. Accordingly, evidence of
the prior decisions and pleadings in this case was also relevant to
impeach Lischer's assertions during her testimony that plaintiff
had the ability to seek judicial review, by demonstrating that
these assertions were unfounded. Thus, the probative value of this
evidence was not substantially outweighed by any danger of unfair
prejudice against defendants. Therefore, the trial court did not
abuse its discretion in admitting this evidence. See Benton, 136
N.C. App. at 53, 524 S.E.2d at 61 (1999).
Cross-Appeal
V
On cross-appeal, plaintiff argues the trial court erred in
allowing defendants' motion to amend their answer to include the
defense of failure to mitigate damages. Plaintiff contends the
trial court abused its discretion by granting the motion filed only
twelve days before trial.
The decision to allow a motion to amend a pleading is left to
the discretion of the trial court. House of Raeford Farms, Inc. v.Raeford, 104 N.C. App. 280, 282, 408 S.E.2d 885, 887 (1991). In
this case, we find no abuse of discretion on the part of the trial
court in allowing defendants' motion as there is no evidence this
motion was filed in bad faith to cause delay and/or unfair
prejudice to plaintiff. See id. at 282-83, 408 S.E.2d at 887.
Further, plaintiff stated he had been made aware damages would be
at issue in the case. Therefore, plaintiff's failure to obtain
other employment being at issue in the case, plaintiff has failed
to show any prejudice against him on this issue by allowance of the
motion to amend the pleadings. Accordingly, we overrule this
assignment of error.
VI
Plaintiff also contends the trial court erred in allowing the
issue of mitigation of damages to go to the jury. He argues there
was no evidence to support a finding he did not mitigate his
damages. We disagree. Defendants provided expert testimony
detailing the wide availability of jobs in the counties around
Durham, the difficulty those counties were having in filling
vacancies, and plaintiff's earning capacity. Additionally, there
was evidence plaintiff failed to obtain other employment despite
the wide availability of other teaching positions. From this, we
conclude there was sufficient evidence to submit the issue of
mitigation of damages to the jury. See generally, Haas v. Warren,
341 N.C. 148, 152-55, 459 S.E.2d 254, 256-58 (1995) (evidence
sufficient to reach a jury in a legal malpractice claim). We thus
conclude there was no error in the entry of judgment in favor ofplaintiff and affirm the denial of defendants' motion for judgment
notwithstanding the verdict or, in the alternative, a new trial.
No error.
Judges TYSON and ELMORE concur.
Footnote: 1