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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
MARIE T. FORMYDUVAL, as Administratrix of the Estate of HARTWELL
B. FORMYDUVAL and JOEY FORMYDUVAL, Plaintiffs, v. WILLIAM S.
BRITT, Individually and d/b/a BRITT & BRITT; and BRITT & BRITT,
Filed: 6 June 2006
Attorneys_malpractice in claim against doctor_Rule 9(j) not applicable to legal malpractice
The trial court erred by dismissing plaintiffs' legal malpractice action against defendants
for failure of the complaint to include the certification required by to N.C.G.S. § 1A-1, Rule 9(j).
The clear and unambiguous language of the statute and precedents establish that Rule 9(j) applies
solely to medical malpractice actions and not to legal malpractice actions.
Judge BRYANT dissenting.
Appeal by plaintiffs from order entered 3 November 2003 by
Judge B. Craig Ellis in Columbus County Superior Court. Heard in
the Court of Appeals 30 November 2005.
The Odom Law Firm, PLLC, by Thomas L. Odom, Jr. and T.
LaFontine Odom, Sr., and Williamson & Walton, LLP, by Benton
H. Walton, III, for plaintiffs-appellants.
Mitchell, Brewer & Richardson, by Ronnie M. Mitchell and Coy
E. Brewer, Jr., for defendants-appellees.
Marie T. Formyduval, Administratrix of the Estate of Hartwell
B. Formyduval, and son, Joey Formyduval (collectively,
plaintiffs) appeal from order entered denying plaintiffs' motion
to amend their complaint and dismissing plaintiffs' legal
malpractice actions against William S. Britt and Britt & Britt,
PLLC (collectively, defendants). We reverse and remand.
In June 1995, plaintiffs retained attorney William S. Britt
(Britt) to represent the Estate of Hartwell B. Formyduval against
Dr. David G. Bunn (Dr. Bunn) in a medical malpractice action
seeking damages for the alleged wrongful death of Hartwell B.
Formyduval. On 31 August 1995, Britt filed a complaint alleging
medical malpractice by Dr. Bunn (the First Action). Over the
next year and a half, Britt retained expert medical witnesses to
testify at trial, took depositions of defense witnesses, and
conducted other discovery and evidentiary matters. Britt's primary
expert medical witness withdrew prior to the scheduled trial.
Britt determined plaintiffs' case was likely to be unsuccessful.
Britt voluntarily dismissed this First Action without prejudice on
21 February 1997.
A. The Underlying Action
Britt filed a summons and a second complaint (the Second
Action) on 19 August 1997. The complaint in the Second Action
alleged medical malpractice and again sought damages from Dr. Bunn
for the alleged wrongful death of Hartwell Formyduval. Britt
retained new expert medical witnesses to testify. The trial was
scheduled for 12 April 1999. Prior to trial, Dr. Bunn moved to
exclude plaintiffs' proposed experts alleging they failed to
qualify under N.C. Gen. Stat. § 8C-1, Rule 702(c) ([I]f the party
against whom or on whose behalf the testimony is offered is a
general practitioner, the expert witness, during the year
immediately preceding the date of the occurrence that is the basis
for the action, must have devoted a majority of his or herprofessional time to either or both of the following: (1) Active
clinical practice as a general practitioner; or (2) Instruction of
students in an accredited health professional school or accredited
residency or clinical research program in the general practice of
After hearing counsel's arguments, the trial court allowed Dr.
Bunn's motion and excluded all testimony of plaintiffs' medical
experts. After these rulings, Britt announced his intention to
rest plaintiffs' case in the absence of expert testimony. Dr. Bunn
thereafter moved for a directed verdict pursuant to Rule 50 of the
Rules of Civil Procedure. The trial court granted the motion.
Britt appealed to this Court from the trial court's rulings
excluding plaintiffs' medical expert witnesses and granting Dr.
Bunn's motion for directed verdict. This Court affirmed the ruling
to exclude plaintiffs' experts under the 1995 amendments to N.C.
Gen. Stat. § 8C-1, Rule 702. The North Carolina Supreme Court
denied plaintiffs' petition for discretionary review. See
Formyduval v. Bunn, 138 N.C. App. 381, 389, 530 S.E.2d 96, 101,
disc. rev. denied, 353 N.C. 262, 546 S.E.2d 93 (2000) (We hold
that all three of plaintiff's witnesses are specialists as that
term is used in the statute. Thus, they are all disqualified from
testifying against defendant pursuant to Rule 702(c).).
B. The Present Action
On 10 April 2002, plaintiffs instituted this action for legal
malpractice, alleging Britt was negligent in handling the First and
Second Action, and that he breached his fiduciary duty toplaintiffs. In their amended answer, defendants denied liability
and moved to dismiss plaintiffs' claims alleging failure to comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure.
Defendants filed a counterclaim seeking to recover costs and
expenses incurred by them during the original representation of
plaintiffs in the medical malpractice action. Defendants moved to
dismiss the action and maintained plaintiffs failed to allege with
specificity in their legal malpractice complaint that pursuant to
Rule 9(j) that the medical care had been reviewed by a person
qualified as an expert witness who was willing to testify to a
deviation from the applicable standard of care.
The date for designation of expert witnesses was set for 17
July 2003. Plaintiffs served their request for the trial court to
peremptorily set this matter for trial on 15 September 2003, then
3 November 2003. On 22 August 2003, the parties agreed to require
designation of expert witnesses by 2 September 2003 and provided
that discovery was to be completed and dispositive motions were to
be filed and heard by 17 October 2003. Defendants calendared their
motion to dismiss for hearing on 15 September 2003, the date
originally set for trial. On 5 September 2003, plaintiffs filed a
motion to amend their complaint to allege certification pursuant to
Rule 9(j) and to raise the unconstitutionality of Rule 9(j).
C. Procedural Rulings
On 15 September 2003, a hearing was held on plaintiffs' motion
to amend and defendants' motion to dismiss. The trial court
acknowledged the action had been pending for seventeen months, thatdefendants' motion to dismiss had been pending for fourteen months,
and the case was forty-five days away from plaintiffs' peremptory
setting on 3 November 2003.
On 3 November 2003, the trial court entered an order denying
plaintiffs' motion to amend, finding, inter alia, undue delay in
filing the motion and that granting the motion would be futile
because the complaint alleging medical malpractice by a health care
provider failed to include the Rule 9(j) certification. The trial
court further granted defendants' motion to dismiss. Plaintiffs
sought to appeal from the order. That appeal was dismissed as
interlocutory. On 12 August 2004, the North Carolina Supreme Court
declined to review this Court's order dismissing the appeal. See
Formyduval v. Britt, 601 S.E.2d 530 (No. 303P04) (Aug. 12, 2004)
(Unpublished) (order denying writ of certiorari to review order of
the Court of Appeals). On 14 February 2005, defendants filed a
voluntary dismissal without prejudice of their counterclaim.
Plaintiffs appeal the trial court's order dismissing all claims
Plaintiffs argue the trial court erred by: (1) dismissing
plaintiffs' complaint for failing to include a Rule 9(j)
certification of expert witnesses in a medical malpractice action;
(2) denying plaintiffs' motion to amend their complaint; and (3)
taxing the costs of the action to plaintiffs.
III. Standard of Review
The trial court specifically dismissed plaintiffs' action for
violation of Rule 9(j). Rule 9(j) provides that any action
alleging medical malpractice by a health care provider shall be
dismissed if the complaint does not follow the requirements set
forth in the statute. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2005)
(effective 1 January 1996).
Our standard of review of an order allowing a
motion to dismiss is whether, as a matter of
law, the allegations of the complaint, treated
as true, are sufficient to state a claim upon
which relief may be granted under some legal
theory, whether properly labeled or not.
Harris v. NCNB Nat'l Bank of N.C., 85 N.C.
App. 669, 670, 355 S.E.2d 838, 840 (1987). In
ruling upon such a motion, the complaint is to
be liberally construed, and the court should
not dismiss the complaint unless it appears
beyond doubt that [the] plaintiff could prove
no set of facts in support of his claim which
would entitle him to relief. Dixon v.
Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757,
Holloman v. Harrelson, 149 N.C. App. 861, 864, 561 S.E.2d 351, 353,
disc. rev. denied, 355 N.C. 748, 565 S.E.2d 665 (2002).
IV. Dismissal of Plaintiffs' Legal Malpractice Action
Plaintiffs argue the trial court erred by dismissing their
legal malpractice action against defendants pursuant to Rule 9(j).
Plaintiffs' legal malpractice complaint alleges defendants-
attorneys were negligent in representing plaintiffs in two prior
medical malpractice claims against Dr. Bunn. The trial court
dismissed plaintiffs' legal malpractice action against defendants
due to the omission of a Rule 9(j) certification and concluded: 4. The Complaint in this action alleges
medical malpractice by a health care provider.
5. Plaintiff's Complaint in this action fails
to include the certification required by G.S.
§ 1A-1, Rule 9(j).
A plaintiff in a legal malpractice action must establish that
the loss would not have occurred but for the attorney's conduct.
Rorrer v. Cooke, 313 N.C. 338, 361, 329 S.E.2d 355, 369 (1985)
(citation omitted). A plaintiff must prove: (1) The original
claim was valid; (2) It would have resulted in a judgment in his
favor; and (3) The judgment would have been collectible. Id.
(citations omitted). A plaintiff alleging a legal malpractice
action must prove a case within a case, meaning a showing of the
viability and likelihood of success of the underlying action.
Kearns v. Horsley, 144 N.C. App. 200, 211, 552 S.E.2d 1, 8, disc.
rev. denied, 354 N.C. 573, 559 S.E.2d 179 (2001). Plaintiffs'
complaint alleged a likelihood of success in their medical
malpractice action against Dr. Bunn but for defendants' legal
Defendants argue: [t]he plain language of the statute makes
rule 9(j)'s certification or pleading requirements applicable to
any complaint alleging medical malpractice by a health care
provider. Rule 9(j) provides in pertinent:
Medical malpractice. -- Any complaint alleging
medical malpractice by a health care provider
as defined in G.S. 90-21.11 in failing to
comply with the applicable standard of care
under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the
medical care has been reviewed by a person who
is reasonably expected to qualify as an expertwitness under Rule 702 of the Rules of
Evidence and who is willing to testify that
the medical care did not comply with the
applicable standard of care;
(2) The pleading specifically asserts that the
medical care has been reviewed by a person
that the complainant will seek to have
qualified as an expert witness by motion under
Rule 702(e) of the Rules of Evidence and who
is willing to testify that the medical care
did not comply with the applicable standard of
care, and the motion is filed with the
(3) The pleading alleges facts establishing
negligence under the existing common-law
doctrine of res ipsa loquitur.
N.C. Gen. Stat. § 1A-1, Rule 9(j). The statute clearly and
unambiguously applies only to any complaint alleging medical
malpractice by a health care provider. Id.
In Thigpen v. Ngo, our Supreme Court discussed the legislative
intent of Rule 9(j) and held, our analysis reveals the legislature
intended Rule 9(j) to control pleadings in medical malpractice
claims. 355 N.C. 198, 203, 558 S.E.2d 162, 166 (2001) (emphasis
supplied). The Court further held:
The legislature specifically drafted Rule 9(j)
to govern the initiation of medical
malpractice actions and to require physician
review as a condition for filing the action.
The legislature's intent was to provide a more
specialized and stringent procedure for
plaintiffs in medical malpractice claims
through Rule 9(j)'s requirement of expert
certification prior to the filing of a
Id. (Emphasis supplied).
In Hummer v. Pulley, Judge Bryant writing for this Court
stated: 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. The
malpractice jury, in essence, then determines
the outcome of the underlying case and from
that determination reaches the malpractice
157 N.C. App. 60, 66, 577 S.E.2d 918, 923, disc. rev. denied, 357
N.C. 459; 585 S.E.2d 758 (2003) (citation omitted).
The complaint at issue does not seek damages for medical
malpractice from a health care provider. Instead, it alleges legal
malpractice by attorneys who caused plaintiffs to lose viable
medical malpractice actions. Defendants' negligence arises out of
their alleged failure to procure expert medical witnesses who could
qualify to testify pursuant to Rule 702. Nothing in Rule 9(j)
requires any special pleading for a complaint alleging legal
malpractice against an attorney. State ex rel. Util. Comm'n v.
Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977) (When the
language of a statute is clear and unambiguous, it must be given
effect and its clear meaning may not be evaded by an administrative
body or a court under the guise of construction.).
Rule 9(j) is a special pleading requirement that solely
applies to plaintiffs who file complaints alleging medical
malpractice by a health care provider. Under the clear language of
the statute and our Supreme Court's precedents, Rule 9(j) does not
apply to a plaintiff alleging legal malpractice against an
attorney. The trial court erred in ruling plaintiffs' legal malpractice
action must be dismissed for failure to contain a Rule 9(j) medical
malpractice certification. Plaintiffs are only required to proffer
sufficient evidence to the jury tending to show Dr. Bunn's alleged
negligence to establish their case within a case.
The trial court also erred in taxing the costs of the action
to plaintiffs. Because Rule 9(j) does not apply to plaintiffs'
legal malpractice claims against defendants, it is unnecessary to
consider plaintiffs' remaining assignments of error.
Our standard of review of defendants' motion to dismiss
requires us to: (1) accept all of plaintiffs' allegations as true;
(2) review those allegations in a light most favorable to
plaintiffs; and (3) deny defendants' motion to dismiss if
plaintiffs' complaint states a claim under some legally viable
theory. Harrelson, 149 N.C. App. at 864, 561 S.E.2d at 353. We do
not address the merits of any of plaintiffs' claims under the
standard of review applicable for a motion for summary judgment or
for a directed verdict. Our holding solely addresses the legal
sufficiency of plaintiffs' complaint when challenged by defendants'
motion to dismiss.
The trial court erred by dismissing plaintiffs' legal
malpractice action against defendants pursuant to Rule 9(j). The
clear and unambiguous language of the statute and precedents
establish that Rule 9(j) applies solely to medical malpractice
actions and not legal malpractice actions. The trial court's orderdismissing plaintiffs' complaint is reversed and this case is
remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Judge CALABRIA concurs.
Judge BRYANT dissents by separate opinion.
BRYANT, Judge. Dissenting in a separate opinion.
I respectfully disagree with the majority's holding that the
trial court erred in dismissing plaintiffs' complaint for failing
to include Rule 9(j) certification of expert witnesses in a medical
In reviewing a dismissal of a complaint for failure to state
a claim, the appellate court must determine whether the complaint
alleges the substantive elements of a legally recognized claim and
whether it gives sufficient notice of the events which produced the
claim to enable the adverse party to prepare for trial. Brandis
v. Lightmotive Fatman, 115 N.C. App. 59, 62, 443 S.E.2d 887, 888
(1994). When determining whether a complaint is sufficient to
withstand a Rule 12(b)(6) motion to dismiss, the trial court must
discern whether, as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim upon
which relief may be granted under some legal theory. Shell Island
Homeowners Ass'n. Inc. v. Tomlinson, 134 N.C. App. 217, 225, 517
S.E.2d 406, 413 (1999). A motion to dismiss under Rule 12(b)(6) is
an appropriate method of determining whether procedural bars to a
plaintiffs' claims exist. See Horton v. Carolina Medicorp, 344
N.C. 133, 136, 472 S.E.2d 778, 780 (1996).
In a legal malpractice action based upon claims of attorney
negligence, a plaintiff is required through the pleadings to place
the defendant on notice that plaintiff intends to prove and mustthen be able to offer proof that plaintiff 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). In order for
a plaintiff to properly allege and prove causation, plaintiff must
establish three things: (1) the underlying claim upon which the
legal 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. (Emphasis
added). In a claim for legal malpractice, plaintiff is required to
prove the viability and likelihood of success of the underlying
case, which 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 requisite applies 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.
In the instant case, Judge Ellis ruled plaintiffs' complaint
alleging attorney negligence in a medical malpractice case was
subject to Rule 9(j), and concluded it was subject to dismissal due
to plaintiffs' failure to include the certification required by
G.S. § 1A-1, Rule 9(j). Because plaintiffs' legal malpractice
action was based on defendants' handling of a medical malpractice
case, plaintiffs were required to allege and prove a case within
a case. In other words, plaintiffs must properly allege and in
order to prevail, ultimately prove the underlying medical
malpractice claim. I see no reason to distinguish the pleading
requirements as to the underlying medical malpractice claim fromthe pleading requirements of the legal malpractice claim. See
Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C. App. 60,
66, 577 S.E.2d 918, 923 (2003) (a legal malpractice plaintiff must
prove success of the underlying action even if the attorney's
negligent actions . . . resulted in a total foreclosure of the
underlying case being heard on its merits), disc. review denied,
357 N.C. 459, 585 S.E.2d 758. As for a medical malpractice claim,
compliance with Rule 9(j) must be made at the time the complaint is
filed. Keith v. Northern Hosp. Dist., 129 N.C. App. 402, 499
S.E.2d 200, disc. review denied, 348 N.C. 693, 511 S.E.2d 646
(1998). I disagree with plaintiff's argument and the majority's
holding that Rule 9(j) certification is not required in this legal
malpractice action. Clearly where our jurisprudence requires proof
of a case within a case in a legal malpractice action, and where
that legal malpractice action is based on medical malpractice,
plaintiffs must plead and prove the underlying case. Moreover,
Thigpen made it clear that the legislature intended Rule 9(j) to
control the pleadings in a medical malpractice action. Thigpen v.
Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002) ([M]edical
malpractice complaints have a distinct requirement of expert
certification with which plaintiffs must comply. Such complaints
will receive strict consideration by the trial judge. Failure to
include the certification necessarily leads to dismissal.).
The underlying medical malpractice action was filed by Mr.
Britt on 19 August 1997. Although that original complaint is not
in the record before us, plaintiffs accede in their brief the 19August 1997 action failed to contain a Rule 9(j) certification.
The failure by Mr. Britt to properly certify the medical
malpractice action under Rule 9(j) was a specific procedural error
that mandated dismissal by the trial court. See N.C.G.S. § 1A-1,
Rule 9(j) (2005). Likewise plaintiff's complaint in the instant
legal malpractice action also failed to include a 9(j)
certification and subjects this case to dismissal. Notwithstanding
plaintiff's 5 September 2003 proposed amendment to their legal
malpractice complaint to allege, inter alia, a Rule 9(j)
certification, the proposed amendment [did] not allege that the
review of the medical care at issue in this action took place
before the filing of the original [c]omplaint. Thus, plaintiffs
have not established the viability and likelihood of success of
their underlying medical malpractice claim.
In short, plaintiffs have failed to properly plead a case
within a case. Therefore, the trial court did not err in
dismissing the legal malpractice complaint and accordingly, I must
dissent from the majority.
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