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Progressive Sales Inc. v. Williams6/2/1987
Plaintiffs' record on appeal presents twenty-nine Assignments of Error essentially alleging that most of the findings of fact below are contrary to the evidence presented. Plaintiffs' brief contains arguments based on two of those Assignments of Error. Our review is limited to those two Assignments of Error. The remaining
twenty-seven Assignments of Error not raised in the brief are deemed abandoned on appeal. Rule 28(b)(5), N.C. Rules App. P.
In general, plaintiffs argue that the trial court erred by allowing defendants' motion for involuntary dismissal after plaintiffs' evidence and dismissing the action with prejudice. Specifically, they argue that the trial court erred by finding that plaintiffs failed to put on any evidence of the applicable standard of care for attorneys in the same or similar community, and that the evidence was insufficient to show that defendant Boone lacked the requisite skill necessary to practice that other attorneys similarly situated possess. After reviewing the evidence from the trial below, we agree with the trial court's finding that plaintiffs failed to put on proper evidence of an applicable standard of care for attorneys similarly situated, and properly granted an involuntary dismissal to defendants with prejudice.
"When a motion to dismiss pursuant to 41(b) is made, the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him." Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc., 305 N.C. 633, 640, 291 S.E.2d 137, 141 (1982). The trial judge in a non-jury case does not weigh the evidence in the light most favorable to the plaintiff as he does on a motion for directed verdict in a jury trial. Id. at 638, 291 S.E.2d at 13. Dismissal with prejudice pursuant to a Rule 41(b) motion is a judgment on the merits, subject to the usual rules of res judicata. Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974).
A plaintiff in a legal malpractice action must prove by a preponderance of the evidence that the attorney breached the duties owed to his client as set forth in Hodges v. Carter, 239 N.C. 517, 519, 80 S.E.2d 144, 145-46 (1954), was thereby negligent, and that this negligence proximately caused damage to the plaintiff. Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 365-66 (1985). The duties from Hodges, supra, at 519, 80 S.E.2d at 145-46, are as follows:
Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the
prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause. (Citations omitted.)
Plaintiffs did not offer at trial the testimony or affidavits of attorneys practicing commercial law in defendants' legal community. Rather, defendants' counsel at one point during trial said that attorneys in Cabarrus County do not usually file security agreements as financing statements as allowed under G.S. 9-402. In their brief before this Court plaintiffs argue that expert testimony is not required in a legal malpractice action. Plaintiffs cite language from Rorrer, supra, at 356,
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