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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.
RENNIE L. WILKINS, Plaintiff, v. PERRY SAFRAN and THE LAW OFFICES
OF PERRY R. SAFRAN, P.A., Defendants
Filed: 4 September 2007
1. Appeal and Error_appealability_summary judgment order
Although the Court of Appeals was not bound by the trial court's certification that there
was no just reason for delay, interlocutory appeals from a summary judgment order in a legal
malpractice case were heard to avoid piece-meal litigation and the risk of inconsistent verdicts.
2. Attorneys_withdrawal of representation--not malpractice
Summary judgment was properly granted for defendants on a claim of legal malpractice
where the individual defendant suffered a heart attack, lawyers in defendant firm assisting in
plaintiff's litigation resigned, defendants moved to withdraw as counsel more than seven weeks
prior to the scheduled trial date, and plaintiff settled after attempting to continue or set aside the
3. Attorneys_withdrawal of representation_not a breach of fiduciary duty
The trial court properly granted defendants' motion for summary judgment on plaintiff's
claim for breach of fiduciary duty arising from defendants' withdrawal from representation.
Defendants asserted a proper basis for withdrawal and did not breach their fiduciary duty.
4. Attorneys_withdrawal of representation_not constructive fraud
The trial court properly granted summary judgment for defendants on plaintiff's claim for
constructive fraud arising from defendant lawyers withdrawing from representation of plaintiff.
Plaintiff presented no evidence tending to show defendants sought or gained any personal benefit
by withdrawing from representation of plaintiff.
5. Attorneys_withdrawal of representation_no punitive damages
The trial court properly granted summary judgment for defendants on plaintiff's claim for
punitive damages arising from defendant lawyers withdrawing their representation of plaintiffs.
Plaintiff's evidence does not raise an inference of any of the three aggravating factors necessary
to support a claim for punitive damages: defendants moved to withdraw due to ill health and the
resignation of the primary associate attorney working on the case, they asserted a proper basis
and utilized proper procedures to withdraw, and they are not liable for compensatory damages.
6. Attorneys_withdrawal of representation_no statutory damages
The trial court erred by denying defendants' motion for summary judgment on plaintiff's
claim for statutory damages arising from defendant lawyers withdrawing their representation
from plaintiff. N.C.G.S. § 84-13 provides double damages if an attorney commits a fraudulent
practice, but no claim arises without a showing of actual or constructive fraud, or a fraudulent
practice. The trial court here granted summary judgment on the underlying claims.
Appeal by plaintiff and cross-appeal by defendants from order
entered 4 August 2006 by Judge Thomas D. Haigwood in Granville
County Superior Court. Heard in the Court of Appeals 20 August
Hayes Hofler, P.A., by R. Hayes Hofler, for plaintiff-
Patterson, Dilthey, Clay & Bryson, L.L.P., by Ronald C.
Dilthey and Tobias S. Hampson, for defendants-appellees/cross-
Rennie L. Wilkins (plaintiff) appeals from order entered
granting Perry Safran's (defendant) and The Law Offices of Perry
R. Safran's (collectively, defendants) motions for summary
judgment against plaintiff's claims for attorney
negligence/malpractice, breach of fiduciary duty, constructive
fraud, and punitive damages. Defendants cross-appeal from that
portion of the order denying their motion for summary judgment on
plaintiff's claim for statutory damages pursuant to N.C. Gen. Stat.
§ 84-13. We affirm in part, reverse in part, and remand.
Defendant is a duly-licensed attorney and counselor at law,
and member of the North Carolina State Bar. The Law Offices of
Perry R. Safran, P.A., is chartered by the North Carolina Secretary
of State, is an active entity, and is an approved professional
association by the North Carolina State Bar. Defendants
represented plaintiff for over five years regarding a construction
lawsuit filed against plaintiff on 21 April 1998.
In February 2003, defendant suffered a heart attack. On 25
April 2003, defendants submitted a written request asking the court
to set the original case for trial on 22 September 2003. Following
defendant's heart attack and the resignation of some of the lawyers
from defendant's staff, defendants filed a motion to withdraw as
plaintiff's counsel on 31 July 2003. Defendants' motion assertedplaintiff had been notified of their motion to withdraw and was
actively seeking new counsel. Plaintiff denies he was notified.
On 1 August 2003, defendants' motion to withdraw as counsel was
granted. Defendants served plaintiff with a copy of the order
allowing their withdrawal on 4 August 2003.
After defendants withdrew, plaintiff retained other counsel to
represent him in the underlying construction lawsuit. On 4
September 2003, plaintiff submitted motions to continue the 22
September 2003 trial date, or, alternatively, to set aside the
order allowing defendants' withdrawal. Both motions were initially
denied, but the court ordered the motions could be reconsidered on
the day of trial.
Prior to the trial date, plaintiff and his new counsel
negotiated a settlement of the construction lawsuit. In the
settlement, plaintiff agreed to pay $22,500.00 in exchange for a
voluntary dismissal of the suit with prejudice. This agreement did
not release defendants from any claims that [plaintiff] ha[d] or
may have against [defendants] or to limit in any way any claims
that [plaintiff] may have against [defendants].
On 28 December 2004, plaintiff commenced a legal malpractice
action. A partial summary judgment order was entered on 4 August
2006 dismissing plaintiff's claims for: (1) attorney
negligence/malpractice; (2) breach of fiduciary duty; (3)
constructive fraud; and (4) punitive damages. The trial court
denied defendants' motion for summary judgment in part on
plaintiff's claim for statutory damages under N.C. Gen. Stat. § 84-
13. Plaintiff appeals and defendants cross-appeal.
Plaintiff argues the trial court erred by allowing defendants'motions for summary judgment in part and dismissing his claims.
On cross-appeal, defendants argue the trial court erred by
denying their motion for summary judgment in part on plaintiff's
claim for statutory damages under N.C. Gen. Stat. § 84-13.
III. Interlocutory Appeals
 Neither party raised or argued to dismiss either appeal as
interlocutory. As a preliminary matter, both appeals are
interlocutory. An interlocutory appeal arises when an order is
entered by the trial court that does not dispose of the entire
controversy between the parties. Hudson-Cole Dev. Corp. v. Beemer,
132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). The general
rule is that a party is not entitled to immediately appeal an
interlocutory order. Id. There are two exceptions to allow an
immediate review of an interlocutory ruling: (1) where the order
represents a final judgment as to one or more but fewer than all of
the claims or parties and the trial court certifies in the judgment
that there is no just reason to delay the appeal or (2) where
delaying the appeal will irreparably impair a substantial right of
the party. Id. (internal quotation omitted). Here, the trial
court certified no just reason exists to delay an appeal of the
order. Even though this Court is not bound by the trial court's
certification, in our discretion we review these interlocutory
appeals because there is no just reason for delay and our review
will avoid both piece-meal litigation and the risk of inconsistent
verdicts. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131
N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) ([T]he trial court's
determination that 'there is no just reason to delay the appeal,'
while accorded great deference, cannot bind the appellate courts
because 'ruling on the interlocutory nature of appeals is properlya matter for the appellate division, not the trial court.'
IV. Standard of Review
Summary judgment is proper 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. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of
A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff's case is
non-existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie case at trial.
Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 212,
580 S.E.2d 732, 735 (2003) (quotations omitted), aff'd, 358 N.C.
131, 591 S.E.2d 521 (2004).
We review an order allowing summary
judgment de novo. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003)
. If the granting of summary judgment can be
sustained on any grounds, it should be affirmed on appeal. Shore
v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).
V. Plaintiff's Appeal
Plaintiff argues the trial court erred in allowing defendants'
motions for summary judgment in part and dismissing his claims
against defendants. We disagree.
A. Attorney Negligence/Malpractice
 [I]n a professional malpractice case
predicated upon a theory of an attorney's
negligence, the plaintiff has the burden of
proving 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
Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985)
is answerable in damages for any loss to his
client which proximately results from a want
of that degree of knowledge and skill
ordinarily possessed by others of his
profession similarly situated, or from the
omission to use reasonable care and diligence,
or from the failure to exercise in good faith
his best judgment in attending to the
litigation committed in his care.
Hodges v. Carter, 239 N.C. 517, 520, 80 S.E.2d 144, 146 (1954).
A plaintiff in a legal malpractice action must
establish that the loss would not have
occurred but for the attorney's conduct. 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. 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
Formyduval v. Britt, 177 N.C. App. 654, 658, 630 S.E.2d 192, 194
(2006) (internal quotations omitted), aff'd, 361 N.C. 215, 639
S.E.2d 443 (2007).
Defendant suffered a heart attack in February 2003. Lawyers
assisting defendant in plaintiff's litigation resigned in July
2003. On 31 July 2003, defendants moved to withdraw as counsel on
the grounds that the associate attorney in charge of the litigation
on behalf of plaintiff was now working at a different law firm and
defendant's health did not allow his continued representation ofplaintiff. The certificate of service attached to this motion
certified plaintiff was served by placing a copy addressed to
plaintiff in the United States mail on 31 July 2003. The trial
court granted defendants' motion to withdraw as counsel on 1 August
2003 and plaintiff was served the order allowing withdrawal on 4
N.C. State Bar Rules of Professional Conduct, Rule 1.16(a)
(2007) states that an attorney shall withdraw from the
representation of a client if: . . . (2) the lawyer's physical or
mental condition materially impairs the lawyer's ability to
represent the client[.] (Emphasis supplied). Plaintiff's expert
witness stated that defendants' conduct violated the standard of
care with regard to the requirement to give reasonable notice to
the client and to allow plaintiff sufficient time to employ other
counsel. Under the facts at bar, we disagree.
Defendants filed their motion to withdraw more than seven
weeks prior to the scheduled trial date. Defendants' motion
complied with the State Bar Rules of Professional Conduct allowing
withdrawal due to defendant's ill health. Defendants' motion to
withdraw did not breach the duty owed to plaintiff.
Defendants received a binding court order allowing defendants'
motion to withdraw. Plaintiff's new counsel properly requested a
continuance and challenged the trial court's order granting
defendants' motion to withdraw. See Williams & Michael, P.A. v.
Kennamer, 71 N.C. App. 215, 217, 321 S.E.2d 514, 516 (1984) (Where
an attorney has given his client no prior notice of an intent to
withdraw, the trial judge has no discretion. The Court must grant
the party affected a reasonable continuance or deny the attorney's
motion for withdrawal.); Smith v. Bryant, 264 N.C. 208, 141 S.E.2d303 (1965) (New trial granted when trial judge did not continue the
defendant's case for a reasonable time after attorney refused to
represent the defendant.).
Although plaintiff's motions to continue or to set aside
defendants' withdrawal were initially denied, the trial court
allowed both motions to be reconsidered on the day of trial.
Plaintiff and his new counsel settled the claims against plaintiff
prior to the scheduled trial date. Summary judgment was properly
granted for defendants on plaintiff's claim of attorney
negligence/malpractice. This assignment of error is overruled.
B. Breach of Fiduciary Duty
 Breach of fiduciary duty is a species of negligence or
professional malpractice. Heath v. Craighill, Rendleman, Ingle &
Blythe, P.A., 97 N.C. App. 236, 244, 388 S.E.2d 178, 183 (citing
Childers v. Hayes, 77 N.C. App. 792, 795, 336 S.E.2d 146, 148
(1985), disc. rev. denied, 316 N.C. 375, 342 S.E.2d 892 (1986)),
disc. rev. denied, 327 N.C. 428, 395 S.E.2d 678 (1990). Because
defendants asserted a proper basis and moved to withdraw,
defendants' conduct did not breach their fiduciary duty owed to
plaintiff. The trial court properly granted defendants' motion for
summary judgment on plaintiff's breach of fiduciary duty claim.
This assignment of error is overruled.
C. Constructive Fraud
 A prima facie showing of constructive fraud requires
plaintiff to prove that they and defendants were in a 'relation of
trust and confidence . . . [which] led up to and surrounded the
consummation of the transaction in which defendant is alleged to
have taken advantage of his position of trust to the hurt of
plaintiff.' Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666,488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547,
549, 61 S.E.2d 725, 726 (1950)). The relationship of attorney and
client creates such a relationship of trust and confidence. Fox
v. Wilson, 85 N.C. App. 292, 299, 354 S.E.2d 737, 742 (1987)
(citations omitted). Plaintiff's evidence must prove defendants
sought to benefit themselves or to take advantage of the
confidential relationship. Barger, 346 N.C. at 666, 488 S.E.2d at
224; NationsBank v. Parker, 140 N.C. App. 106, 114, 535 S.E.2d 597,
Plaintiff presented no evidence tending to show defendants
sought or gained any personal benefit by withdrawing from
representation of plaintiff. In the absence of such a showing, the
trial court properly granted summary judgment for defendants on
plaintiff's claim of constructive fraud. This assignment of error
D. Punitive Damages
 Punitive damages may be awarded, in an appropriate case
. . . to punish a defendant for egregiously wrongful acts and to
deter the defendant and others from committing similar wrongful
acts. N.C. Gen. Stat. § 1D-1 (2005); see Rhyne v. K-Mart Corp.,
358 N.C. 160, 167, 594 S.E.2d 1, 7 (2004) (Chapter 1D reinforces
the common-law purpose behind punitive damages by providing that
they are to be awarded to punish a defendant for egregiously
wrongful acts and to deter the defendant and others from committing
similar wrongful acts. (Quotation omitted)).
[T]he claimant must prove that the defendant is liable for
compensatory damages and that one of the following aggravating
factors was present and was related to the injury for which
compensatory damages were awarded: (1) fraud; (2) malice; or (3)willful or wanton conduct. N.C. Gen. Stat. § 1D-15(a) (2005).
The aggravating factors must be averred with particularity and
proved by clear and convincing evidence. N.C. Gen. Stat. § 1A-1,
Rule 9(k) (2005); N.C. Gen. Stat. § 1D-15(b) (2005); see Burgess v.
Busby, 142 N.C. App. 393, 410, 544 S.E.2d 4, 13 (2001) (Order
reversed when aggravating factor was sufficiently alleged in the
complaint to support a claim for punitive damages).
Viewed in the light most favorable to plaintiff, defendants'
evidence tends to show they moved to withdraw from representation
of plaintiff due to ill health and the resignation of the primary
associate attorney working on plaintiff's case from the firm.
Defendants asserted a proper basis and utilized proper procedures
mandated by the Rules of Professional Conduct and the Rules for
Superior Court Practice to move to withdraw. Defendants are not
liable for any compensatory damages based on their proper
withdrawal. Plaintiff's evidence fails to raise an inference of
the existence of any of the three aggravating factors necessary to
support a claim for punitive damages. N.C. Gen. Stat. § 1D-15(a).
The trial court properly granted summary judgment on plaintiff's
claim for punitive damages. This assignment of error is overruled.
VI. Defendants' Appeal
 Defendants argue on cross-appeal that the trial court
erred by denying their motion for summary judgment in part on the
plaintiff's claims for statutory damages under N.C. Gen. Stat. §
84-13. We agree.
N.C. Gen. Stat. § 84-13 (2005) provides, [i]f any attorney
commits any fraudulent practice, he shall be liable in an action to
the party injured, and on the verdict passing against him, judgment
shall be given for the plaintiff to recover double damages. In Jordan v. Crew, this Court held that if a plaintiff fails
to state a viable claim for fraud, constructive fraud, or any
fraudulent practice, no derivative claim for double damages
arises under N.C. Gen. Stat. § 84-13. 125 N.C. App. 712, 720, 482
S.E.2d 735, 739, disc. rev. denied, 346 N.C. 279, 487 S.E.2d 548
(1997). We have held the trial court properly granted summary
judgment for defendants on plaintiff's breach of fiduciary duty and
constructive fraud claims. Without a prima facie showing of actual
or constructive fraud or any fraudulent practice, no claim for
double damages arises under N.C. Gen. Stat. § 84-13. Id. The
trial court erred in denying defendants' motion for summary
judgment on plaintiff's claim for statutory damages under N.C. Gen.
Stat. § 84-13. We reverse that portion of the trial court's order
and remand for entry of summary judgment for defendants.
The trial court properly granted defendants' motions for
summary judgment on plaintiff's claims for: (1) attorney
negligence/malpractice; (2) breach of fiduciary duty; (3)
constructive fraud; and (4) punitive damages. Viewed in the light
most favorable to plaintiff, no genuine issues of material fact
exist on those claims. That portion of the trial court's order is
Once the underlying claims for breach of fiduciary duty and
constructive fraud claims were properly dismissed, plaintiff could
not establish the statutory requirements for a claim for double
damages pursuant to N.C. Gen. Stat. § 84-13. The trial court erred
in denying defendants' motion for summary judgment in part. That
portion of the trial court's order is reversed. This case is
remanded for entry of summary judgment for defendants onplaintiff's statutory damages claim. Id
Affirmed in Part, Reversed in Part, and Remanded.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
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