An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1527

NORTH CAROLINA COURT OF APPEALS

Filed: 20 September 2005

WALTER CLINE and WILLIAM
HAGLER,
    Plaintiffs,

v .                         Guilford County
                            No. 02 CVS 10788
MARK BLACK, ROBERT TROBICH,
MARVIN HENDERSON and J.
MICHAEL FARRELL,
    Defendants.

    Appeal by plaintiffs from an Order for Summary Judgment filed 2 July 2004 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 17 August 2005.

    Hicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellants.

    J. Michael Farrell, pro-se, defendant-appellee.

    BRYANT, Judge.

    Plaintiffs Walter Cline and William Hagler appeal from an Order filed 2 July 2004 in Guilford County Superior Court by the Honorable Anderson D. Cromer granting defendant J. Michael Farrell's Motion for Summary Judgment. For the reasons stated below, we affirm the trial court's Order granting summary judgment.

Underlying Facts
    On 18 September 1996, plaintiffs initiated a civil action in the United States District Court for the Eastern District of North Carolina alleging a variety of federal and state claims. The federal civil rights complaint was filed pro se by Hagler withdefendants Mark Black and Marvin Henderson representing Cline. In February 1998, defendant J. Michael Farrell agreed to represent Hagler solely to oppose a Motion for Summary Judgment filed by the defendants in the federal civil action. Farrell is a licensed attorney in Pennsylvania, but not North Carolina, and associated with Defendant Robert Trobich for this representation. On 1 May 1998, the Honorable Terrence Boyle, United States District Judge, entered an Order granting the Motion for Summary Judgment, and dismissed plaintiffs' claims. A Corrected Judgment was filed 5 May 1998.
    On 14 May 1998, Farrell signed and submitted a motion pursuant to Rule 60 for relief from judgment on behalf of Hagler. The court entered an Order denying the Motion for Relief from Judgment on 18 August 1998. On 28 September 1998 Cline and Hagler, acting pro se, jointly filed an Amended Notice of Appeal from the order granting summary judgment, and in January 1999, Cline and Hagler employed Robert A. Dybing to represent them in their appeal to the Fourth Circuit.
    On 19 July 1999, the United States Court of Appeals for the Fourth Circuit Court, in an unpublished opinion, affirmed in part and remanded in part the order granting summary judgment. In its Opinion, the Fourth Circuit panel affirmed the trial court's ruling dismissing plaintiffs' claims under federal law, but remanded the state law claims to the federal district court for clarification of their disposition. Upon remand, Judge Boyle entered an Order on 20 September 1999, clarifying that the federal district court did notexercise supplemental jurisdiction over the state law claims, and dismissed those claims without prejudice. From the record on appeal, it is unclear who, if anyone, was sent notice of this order.
    In November 1999, Hagler discovered the order dismissing the state law claims. On 28 April 2000, plaintiffs, acting pro se, filed a Motion to Amend the Order filed 20 September 1999, asking the court to change the date of entry of the Order to 7 November 1999 to reflect plaintiffs' lack of notification. Plaintiffs' Motion to Amend was denied on 21 December 2000. Meanwhile, the time period for re-filing the state law claims had elapsed and plaintiffs' subsequent state law civil actions were dismissed.
Procedural History
    On 9 October 2002, plaintiffs initiated this legal malpractice action against defendants Mark Black, Robert Trobich, Marvin Henderson and J. Michael Farrell in Guilford County Superior Court. Farrell filed an Answer on 30 December 2002, and an Amended Answer on 20 January 2003. Plaintiffs filed a Voluntary Dismissal Without Prejudice as to defendants Mark Black, Robert Trobich and Marvin Henderson on 4 February 2004. On 26 March 2004, Farrell filed a Motion for Summary Judgment. After a hearing before the Honorable Anderson D. Cromer, the trial court granted the Motion for Summary Judgment and entered an order to that effect on 2 July 2004. Plaintiffs appeal.
_________________________
    Plaintiffs raise only one issue on appeal - whether the trial court erred in entering summary judgment as to plaintiffs' malpractice claim against Farrell. Plaintiffs claim Farrell was negligent in failing to keep up with the status of their civil action in federal district court and by not notifying them of the 20 September 1999 dismissal without prejudice of their underlying state law claims. Plaintiffs claim this alleged breach of duty by Farrell prevented them from being able to re-file their claims in state court before the time for filing had elapsed.
Standard of Review
    Under Rule 56(c) of the Rules of Civil Procedure, summary judgment “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The moving party has the burden of establishing the absence of any genuine issue of material fact, and the trial court should view the evidence in the light most favorable to the nonmoving party. Norris v. Zambito, 135 N.C. App. 288, 293, 520 S.E.2d 113, 116 (1999). “On appeal, this Court has the task of determining whether, on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” Eckard v. Smith, 166 N.C. App. 312, 318, 603 S.E.2d 134, 138 (2004) (citing Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d399, 401 (1980)), appeal docketed, No. 573A04 (N.C. Nov. 11, 2004). We review the trial court's grant of summary judgment de novo. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002).
    While “it is seldom appropriate to grant summary judgment in a negligence action, it is proper if there are no genuine issues of material fact, and the plaintiff fails to demonstrate one of the essential elements of the claim.” Parish v. Hill, 350 N.C. 231, 236, 513 S.E.2d 547, 550 (1999). In a legal malpractice action based upon an attorney's negligence, the plaintiff must allege and prove by the greater weight of the evidence: “(1) that the attorney breached the duties owed to his client . . . and that this negligence (2) proximately caused (3) damage to the plaintiff.” Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985) (citation omitted).
    At the hearing on Farrell's Motion for Summary Judgment, the trial court found the attorney/client relationship between Hagler and Farrell ended when Hagler's pro se Notice of Appeal was filed on 18 September 1998 in the United States District Court for the Eastern District of North Carolina, with the case then going to the United States Court of Appeals for the Fourth Circuit. Furthermore, the trial court found there was nothing in the record indicating Cline was at any time represented by Farrell before 5 November 1999.   (See footnote 1)  The trial court found that because there was noattorney/client relationship at the time of the 20 September 1999 Order dismissing the state law claims, plaintiffs could not establish a breach of duty necessary to support their legal malpractice claim.
Plaintiff Walter Cline
    There is no indication anywhere in the record that Farrell represented Cline in any manner prior to November 1999. While Cline may have benefitted from the 14 May 1998 Motion to Reconsider, this filing did not create an attorney/client relationship between Farrell and Cline. Therefore, there was no genuine issue of material fact tending to show the existence of an attorney/client relationship between Farrell and Cline.
Plaintiff William Hagler
    Farrell does not appear as an attorney of record in the docket sheet for the federal civil action. Farrell's last act taken on behalf of Hagler was the filing of the Motion to Reconsider on 14 May 1998. From then on, Hagler proceeded pro se, filing at least three motions on his own behalf: (1) a Motion for an Extension of Time within which to file a Notice of Appeal filed 18 September 1998; (2) an Amended Notice of Appeal filed by both Cline and Hagler on 28 September 1998; and (3) a Motion to Amend the 20 September 1999 Order filed by both Cline and Hagler on 28 April 2000.    There is no indication in the record that an attorney/client relationship between Farrell and Hagler existed past 18 September 1998, when Hagler began representing himself pro se. Farrell had sent a letter to Hagler in May 1998 indicating he would be willing to handle the appeal if Hagler would meet his original fee obligations. Farrell's letter indicated when Hagler's notice of appeal would need to be filed and asked Hagler to contact Farrell to confirm whether the terms for Farrell's continuing representation were acceptable. Hagler did not make any further payments to Farrell.
    On 4 January 1999, Cline and Hagler hired Robert Dybing to represent them on appeal to the United States Court of Appeals for the Fourth Circuit. When the United States Court of Appeals rendered its decision and remanded the state law claims to the federal district court for clarification, Dybing instructed Cline and Hagler to let him know whether the federal district court dismissed the state law claims without prejudice as he was willing to assist them in re-filing those claims in state court. However, even though the claims were dismissed without prejudice on 20 September 1999, it was not until November that Hagler learned of the dismissal, too late to timely file the claims in a North Carolina Superior Court. Nothing in the record indicates Farrell represented Hagler during this time.
    Plaintiffs argue that Farrell's failure to formally withdraw from the case evidences an attorney/client relationship continued past 18 September 1998. However, “the relation of attorney andclient may be implied from the conduct of the parties, and is not dependent on the payment of a fee, nor upon the execution of a formal contract.” North Carolina State Bar v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325 (1985) (citation omitted).
        [Moreover,] as between the attorney and the client, the relationship may in some instances terminate prior to the date the attorney withdraws of record. We cannot, therefore, equate the date of the attorney's withdrawal of record with the date the attorney ceased representing the client with regard to the matters which are the basis of [a] malpractice action.

Sharp v. Teague, 113 N.C. App. 589, 595-96, 439 S.E.2d 792, 796 (1994). In the instant case, the attorney/client relationship between Farrell and Hagler ended on or about 18 September 1998 when Hagler began representing himself pro se by filing his Motion for an Extension of Time within which to file a Notice of Appeal. Therefore, based on the conduct of the parties as evidenced in the record, there was no attorney/client relationship in existence between 18 September 1998 and 5 November 1999. As there exists no genuine issue of material fact tending to show the existence of an attorney/client relationship between Farrell and Hagler, the trial court properly granted Farrell's Motion for Summary Judgment.
    Affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).


Footnote: 1
    In November 1999, Cline paid Farrell $3,500.00 to draft a Complaint addressing plaintiffs' state law claims. On 24 November 1999, plaintiffs initiated a civil action asserting the state lawclaims in Cumberland County Superior Court, using the draft Complaint prepared by Farrell. All of plaintiffs' state law claims were subsequently dismissed.

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