An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-1211


Filed: 1 June 2004

James Ben Smith,

    v.                        Lenoir County
                            No. 02 CVS 234
Nicholas E. Harvey, Attorney,
(correct: “Nicholas E.
Harvey, Sr.”), Imelda Pate,
Attorney and D.A., Honorable
John Paul Jones, Judge,
Honorable Benjamin G. Alford, Judge,


    v.                        Lenoir County
                            No. 02 CVS 0234

    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.


    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 1st 5th 6th and 14th 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.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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