Tuesday, May 15, 2018

An Inexact Science

The dismissal of a legal malpractice claim has been affirmed by the North Carolina Court of Appeals

Carol D. Moore (“plaintiff”) appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s claim for legal malpractice. After careful review, we conclude that plaintiff failed to forecast any evidence to prove that, but for defendants’ alleged negligence, plaintiff would have received a more favorable judgment in her prior equitable distribution action. Accordingly, we affirm the trial court’s order.

At issue was the end of a 25-year marriage

Plaintiff hired defendants due to their experience tracing marital assets in complex equitable distribution proceedings. Defendants were aware that plaintiff believed that Dr. Moore had hidden assets in anticipation of the parties’ divorce. In addition to defendants, plaintiff also retained certified public accountant Heather Linton and certified fraud examiner Carl Allen (“Allen”) to help locate the alleged missing assets.

During discovery, defendants conducted depositions; subpoenaed financial institutions; and reviewed tax returns and other documents for evidence of undisclosed earnings or accounts, including potential off-shore transactions. However, neither defendants nor plaintiff’s experts ever located any undisclosed assets. Jordan ultimately concluded that the Moores’ once-substantial marital estate had been depleted as a result of market factors and the parties’ extravagant lifestyle choices. Although Allen had “theories” that Dr. Moore might have mismanaged marital funds, Jordan determined that the evidence was speculative, unsubstantiated, and likely inadmissible. Therefore, when the trial commenced on 3 January 2011, Jordan notified Allen that he would not call him to testify. At trial, defendants did not present any expert witness evidence to support plaintiff’s theory that Dr. Moore hid marital assets prior to the parties’ divorce.

The plaintiff did not appeal the distribution of marital assets by the trial court; rather, she sued her lawyer

“The law is not an exact science but is, rather, a profession which involves the exercise of individual judgment.” Id. Contrary to plaintiff’s arguments, Jordan’s failure to present evidence that he, in his professional judgment, deemed “speculative” and “unsupported” is consistent both with the exercise of due care in representing plaintiff’s action, and with his duty of candor to the court.

Plaintiff failed to forecast sufficient evidence for the trial court to consider regarding any alleged marital asset. Without such evidence, the trial court could not determine whether plaintiff might have obtained a judgment in excess of the one that she actually received at equitable distribution. Furthermore, contrary to plaintiff’s arguments, there is no evidence that defendants failed to exercise due care and diligence in representing plaintiff’s action. Since plaintiff failed to establish that any alleged negligence on the part of defendants proximately caused damage to her, we affirm the trial court’s order granting defendants’ motion for summary judgment.

(Mike Frisch)


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