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2004-UP-058 - Cummings v. Newby, Pridgen, and Sartip Attorneys at Law
PREHEARING REPORT

THE STATE OF SOUTH CAROLINA
In the Court of Appeals


Clyde D. Cummings, Jr. and Doris C. Cummings,        Appellants,

v.

Newby, Pridgen, & Sartip, Attorneys at Law and Bill M. Pridgen,        Repondents.


Appeal from Horry County
Court of Common Pleas
John L. Breeden, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-058
Submitted January 12, 2004 – Filed January 29, 2004


AFFIRMED


Steven E. Solomon, of Myrtle Beach, for Appellants.

Bryan P. Stirling, of Columbia, for Respondents.


PER CURIAM:  Clyde D. Cummings, Jr., and Doris C. Cummings appeal a circuit court order granting summary judgment in favor of Newby, Pridgen, & Sartip, Attorneys at Law and Bill M. Pridgen in this attorney malpractice action.  We affirm.

FACTS

On November 24, 1995, the Cummings purchased condominium unit #1516 at Beach Cove in Myrtle Beach, South Carolina.  Bill M. Pridgen, a member of the firm of Newby, Pridgen & Sartip, represented the Cummings at the closing.  Prior to the closing, a title search revealed no lis pendens of record affecting the condominium unit #1516.

However, in 1993 two lawsuits were filed against the Beach Cove Condominium Complex.  The first suit [1] sought recovery for damages caused as a result of defective construction at the condominium complex.  The second, [2] a class action consisting of individual homeowners, sought recovery for losses of rental income and damages to the interior of the individual condominiums.  Although both cases settled, the settlement amount did not cover the cost of repairs or the loss of rental income suffered by the homeowners.  As a result, each owner of a condominium unit at Beach Cove was assessed varying amounts to fund repairs necessitated by the settlement. 

The Cummings filed suit on October 9, 1998 to recover the amount of the assessments as well as punitive damages, alleging Pridgen and his firm were at fault in not disclosing prior to closing the existence of the two lawsuits concerning the Beach Cove Condominium Complex.  Pridgen and the firm answered, denying liability.  It is undisputed the Cummings received marketable title to their condominium unit. 

Pridgen and the firm filed a motion for summary judgment on December 13, 2001, more than three years after the action was filed.    It was argued that a plaintiff in a malpractice case must establish the standard of care through expert testimony.  Because the Cummings did not produce an expert for this purpose, movants contended they were entitled to summary judgment.

The Cummings relied on a “title abstractor” as their expert.  The title abstractor did not offer an opinion on an attorney’s duties in terms of disclosure to a client in a real estate transaction, but merely opined that had she conducted the title search, she would have informed the closing attorney of the existence of the then two pending lawsuits.  The Cummings alternatively argued that disclosure of the lawsuits was within the common knowledge of laypersons, thus providing an exception to the general rule requiring expert testimony.

The circuit court granted summary judgment, agreeing with Pridgen and the firm that in this legal malpractice action, the standard of care must be proven through expert testimony. The Cummings appeal.   

ISSUE

Did the circuit court err in granting summary judgment, as expert testimony was not offered to establish the standard of care owed by an attorney in a real estate transaction?

STANDARD OF REVIEW

“In reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court under Rule 56(c), SCRCP.”  Fisher v. Stevens, 355 S.C. 290, 294, 584 S.E.2d 149, 151 (Ct. App. 2003) (citing Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991)). Accordingly, summary judgment is appropriate when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”  Rule 56(c), SCRCP.  “In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party.”  McNair v. Rainsford, 330 S.C. 332, 341, 499 S.E.2d 488, 493 (Ct. App. 1998).

LAW/ANALYSIS

The Cummings argue the circuit court erred in granting summary judgment.  We disagree.

“There are four elements to a cause of action for legal malpractice: 1) the existence of an attorney-client relationship; 2) breach of a duty by the attorney; 3) damage to the client; and 4) proximate causation of the client’s damages by the breach.”  Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433, 435 n.2, 472 S.E.2d 612, 613 n.2 (1996).

Generally, in a legal malpractice case, the standard of care an attorney owes in a particular transaction must be proven by expert testimony, unless the subject matter of the transaction is within the common knowledge of laypersons.  Mali v. Odom, 295 S.C. 78, 80, 367 S.E.2d 166, 168 (Ct. App. 1988) (citations omitted); McNair v. Rainsford, 330 S.C. 332, 343, 499 S.E.2d 488, 494 (Ct. App. 1998); see also 7 Am. Jur. 2d Attorneys at Law § 237 (1997).  Significantly, the rules of evidence governing legal malpractice actions are the same as those used for other professionals, i.e., doctors, architects, accountants, and dentists.  Mali, 295 S.C. at 80, 376 S.E.2d at 168 (citing House v. Maddox, 360 N.E.2d 580 (Ill. App. Ct. 1977)).

In Gilliland v. Elmwood Props., 301 S.C. 295, 391 S.E.2d 577 (1990), the plaintiff, an architect, sued the defendant for breach of contract.  The defendant counterclaimed, asserting the architect was professionally negligent by failing to design the project according to the contract’s specifications.  Our supreme court stated the following:

The well known rule still exists that generally, in a malpractice case, “there can be no finding of negligence in the absence of expert testimony to support it.”  The claimant in a malpractice claim must, through expert testimony, establish both the standard of care and the deviation by the defendant from such standard.  Here, [the defendant] presented no evidence from an expert that [the plaintiff] had committed malpractice.  Thus, the summary judgment was, in this respect, proper.

Id. at 300-301, 391 S.E.2d 580 (citations omitted).

The same situation is presented in this case.  The Cummings have presented no expert evidence either establishing the standard of care owed by Pridgen and his firm or showing a deviation from that standard.  Instead, the Cummings offer the testimony of a title abstractor who would testify that if the closing attorney had inquired, she would have informed him of the lawsuits pending against the condominium complex.  The Cummings then leap to the conclusion that Pridgen should have passed the information on to them.  As noted, the Cummings’ fall-back position is that disclosure of this information fits within the common knowledge exception, thereby obviating the need for expert testimony.  We reject the Cummings’ arguments. 

The threshhold determination in a case alleging attorney malpractice is the standard that the attorney failed to meet.  In this  case, the question is whether Pridgen failed to act according to the standard of care governing attorneys engaged in real estate transactions.  A title abstractor simply cannot present testimony to this end.  In Ex Parte Charles Watson, Jr., Op. No. 25757 (S.C. Sup. Ct. filed Dec. 1, 2003) (Shearouse Adv. Sh. No. 43 at 30), in no ambiguous terms, our supreme court held “that when nonlawyer title abstractors examine public records and then render an opinion as to the content of those records, they are engaged in the unauthorized practice of law.”  Id. at 2.  Therefore, it logically follows that a title abstractor, whose research and resulting opinion constitutes the unauthorized practice of law, may not properly testify to the standard of care owed by an attorney in a real estate transaction.          

Moreover, we find the issue as to the attorney’s standard of care in this matter well beyond the common knowledge of laypersons.    Absent proper expert testimony, we decline to impose on attorneys in real estate transactions the standard of care advocated by the Cummings.  This case illustrates well the rationale warranting the application of the general rule requiring expert testimony.         

CONCLUSION

Accordingly, we concur with the circuit court and hold that the allegation of attorney malpractice in this real estate transaction required expert testimony as to the standard of care and deviation from such standard.

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur. 


[1]         Beach Cove Resort Homeowners Ass’n, Inc. v. Beach Cove Assocs., et al., Case No. 93-CP-26-2624

[2]         Galen and Valeria Christner, et al. v. Beach Cove Assocs., et al., Case No. 93-CP-26-3627