Appeal by plaintiff from orders filed 17 June 2002 and 3 July
2002 by Judge Carl L. Tilghman in Lenoir County Superior Court.
Heard in the Court of Appeals 12 May 2004.
James Ben Smith, pro se, plaintiff-appellant.
Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by
Thomas H. Morris, for defendant-appellee Nicholas E. Harvey.
Attorney General Roy Cooper, by Special Deputy Attorney
General Charles J. Murray and Assistant Attorney General
William McBlief, for defendant-appellees Imelda Pate, Hon.
John Paul Jones and Hon. Benjamin G. Alford.
BRYANT, Judge.
James Ben Smith (plaintiff) appeals orders filed 17 June 2002
and 3 July 2002 dismissing his complaint.
On 19 February 2002, plaintiff in propria persona filed a
complaint entitled “Civil Complaint and Legal Malpractice Action
Jury Demand” and filed an amended complaint entitled the same on 20
May 2002. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6),
defendants filed several motions to dismiss both the complaint and
the amended complaint for failure to state a claim upon which
relief could be granted. On 17 June 2002, the trial court entered
an order allowing defendant Nicholas E. Harvey's Rule 12(b)(6)
motion. On 3 July 2002, the trial court entered an order allowing
the Rule 12(b)(6) motion of the remaining defendants. From these
orders, plaintiff appealed.
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The dispostive issue is whether the trial court erred in
dismissing plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-
1, Rule 12(b)(6).
In his complaint, plaintiff alleged Nicholas E. Harvey
(defendant) represented plaintiff in a criminal proceeding
prosecuted by defendant Imelda Pate, D.A., in courts presided over
by defendants John Paul Jones and Benjamin G. Alford, superior
court judges. Plaintiff further alleged that (1) defendant Jones
wrongfully revoked plaintiff's bond, (2) defendant Harvey provided
ineffective representation, (3) defendant Pate engaged inprosecutorial misconduct, (4) defendant Alford demonstrated bias
against plaintiff, and (5) defendants colluded to deny him his
rights and to wrongfully imprison plaintiff. As a cause of action
against defendant Harvey, plaintiff alleged defendant Harvey:
A-1. Accepted appointment without time to
competently prepare for trial and perform his
duties.
A-2. Neglected to perform his duties as
Plaintiff's Attorney.
A-3. He was/is required to withdraw as
Plaintiff's Counsel and failed to do so. (see)
general Rule 2.8(B)(2), due to inability to
prepare for trial competently.
A-4. Constantly and continually violated his
fiduciary obligations in general, owed to
Plaintiff, VIA Conflict of Interest.
A-5. Acted in collusion with all other
Defendant's denying Plaintiff of his right to
the adversarial process, and effective
assistance of counsel and a fair trial.
A-6. Failed to allow Plaintiff to assist in
his own defense by refusing to enter certain
evidence, and properly and/or meaningfully
object to testimony and evidence and allowed
it to be entered into evidence regardless of
irrelevance and/or regardless of incompetence
of same.
A-7. Conspired with other Defendants to deny
Plaintiff his rights to a fair trial,
effective assistance of counsel, the
adversarial process, due process and equal
protection under the law, in violation of
Plaintiff's 1
st 5
th 6
th and 14
th amendment rights
under the U.S. Constitution, and N.C.
Constitution.
A-8. Failed to request the trial Judge to rule
upon his claimed Conflict of Interest, after
the Plaintiff herein brought same to his
attention.
A-9. As a result of Defendant's negligence,
malfeasance, nonfeasance and Legal Malpractice
in the performance of and/or failure to
perform his professional duties in a skilful
[sic], diligent responsible and/or reasonable
manner concerning his obligations associated
with legal representation of Plaintiff, all to
Plaintiff's substantial damages and injuries
exceeding $20,000.00 and all jurisdictional
requirements. Plaintiff's damages include
both physical and mental anguish and wrongful
imprisonment.
As a cause of action against defendants Pate, Jones and
Alford, plaintiff contended they colluded to violate his rights to
a fair and impartial trial.
A motion to dismiss for failure to state a claim upon which
relief can be granted presents the question of whether the
complaint is legally sufficient to state a cause of action.
N.C.G.S. § 1A-1, Rule 12(b)(6) (2003);
Industries, Inc. v.
Construction Co., 42 N.C. App. 259, 263-64, 257 S.E.2d 50, 54
(1979). A complaint is not sufficient if an insurmountable bar to
recovery appears on the face of the complaint.
Sutton v. Duke, 277
N.C. 94, 102, 176 S.E.2d 161, 166 (1970). “A complaint may be
dismissed pursuant to Rule 12(b)(6) if no law exists to support the
claim made, if sufficient facts to make out a good claim are
absent, or if facts are disclosed which will necessarily defeat the
claim.”
Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388
S.E.2d 134, 136 (1990).
In an action predicated on attorney malpractice, a plaintiff
must allege and prove that the attorney breached duties owed to the
plaintiff as his client and that the attorney's negligenceproximately caused damages to the plaintiff.
Rorrer v. Cooke, 313
N.C. 338, 355, 329 S.E.2d 355, 365-66 (1985). A plaintiff who
alleges an attorney provided negligent representation in a criminal
proceeding has an augmented or higher standard of allegation and
proof.
Belk v. Cheshire, 159 N.C. App. 325, 332, 583 S.E.2d 700,
705-06 (2003). The reason for the stricter standard is three
public policy considerations: (1) the criminal justice system
affords a criminal defendant protections against abuses of the
system and wrongful conviction; (2) a guilty defendant should not
be allowed to profit from criminal behavior; and (3) the threat of
a malpractice action may reduce the pool of attorneys willing to
serve indigent defendants.
Id. at 332, 583 S.E.2d at 706. Fatally
absent from plaintiff's pleading in the case
sub judice is any
allegation that plaintiff is innocent of whatever criminal charge
or charges were brought against plaintiff or that an acquittal
would have occurred but for counsel's alleged negligence. We hold
the trial court properly dismissed the claim against defendant
Harvey.
Acts performed in a judicial capacity are entitled to absolute
immunity from money damages even if the act is erroneous,
malicious, or in excess of authority.
Stump v. Sparkman, 435 U.S.
349, 356-57, 55 L. Ed. 2d 331, 339 (1978). An insurmountable bar
to recovery against defendants Jones and Alford, as judges acting
in their judicial capacity, is therefore presented. Moreover,
[i]t is settled law in this jurisdiction that
a public official, engaged in the performance
of governmental duties involving the exerciseof judgment and discretion, may not be held
personally liable for mere negligence in
respect thereto. The rule in such cases is
that an official may not be held liable unless
it be alleged and proved that his act, or
failure to act, was corrupt or malicious, or
that he acted outside of and beyond the scope
of his duties.
Smith v. Hefner, 235 N.C. 1, 7, 68 S.E.2d 783, 787 (1952). Because
plaintiff's complaint in this case is lacking in such allegation
against defendants Pate, Jones and Alford, we hold the trial court
properly dismissed plaintiff's complaint against these defendants.
Accordingly, the trial court's orders are affirmed.
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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