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2004-UP-367 - Hall v. Jones

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Ella R. Hall,        Appellant,

v.

J. Richard Jones, Esquire,        Respondent.


Appeal From Darlington County
James E. Lockemy, Circuit Court Judge


Unpublished Opinion No. 2004-UP-367
Submitted June 8, 2004 – Filed June 10, 2004


AFFIRMED


Ella R. Hall, of Hartsville, for Appellant.

Finley B. Clarke, of Florence, for Respondent.

PER CURIAM:  In this legal malpractice action, Ella Hall appeals a circuit court order granting summary judgment in favor of J. Richard Jones, Esquire.  We affirm.

FACTS

Ella Hall worked as a nurse for Commander Nursing Center.  In 1997, she became the subject of an investigation into some missing drugs at the center.  The South Carolina Board of Nursing investigated the incident.  Rebecca Plowden, the nursing home administrator, suspended Hall in July 1997 after the investigation indicated Hall was responsible for the missing drugs.  A complaint against her nursing license was filed with the Board.

Hall originally hired Anne Bell in August 1997 as counsel to help with the licensing matter before the Board.  She discussed bringing suit against Commander for racial discrimination because she was black and her husband was white, and she felt that contributed to her suspension.  Hall became dissatisfied with Bell’s representation and terminated the representation in March 1998.

Thereafter, Hall retained Jones in March 1998 to represent her in the Board matter.  Additionally, she raised the possibility of bringing suit against multiple parties, including Commander, Plowden, the Board, and its investigator.  Jones pursued his representation of Hall on the matter before the Board.  In October 1998, Jones and Hall were notified that the complaint against Hall’s license had been dismissed. 

In December 1998, Jones ended his representation of Hall.  He never filed any actions regarding her racial discrimination or defamation claims.  Hall stated that Jones presented her with a list of other counsel to consider for representation.  On December 7, 1998, Jones returned Hall’s file to her.  He never charged Hall for any of his representation.   

On July 22, 1999, Hall employed David Weeks to file actions for racial discrimination and defamation.  Hall subsequently terminated his representation.   

In December 2000, Hall filed separate pro se legal malpractice actions against Bell, Jones, and Weeks.  In her complaint against Jones, she alleged breach of contract, breach of fiduciary duty, and negligence.  All of her claims centered on his failure to file her action for defamation and racial discrimination.  Each cause of action was framed as an action for legal malpractice.  Jones filed an answer admitting he represented her regarding her nursing license, but denying he ever agreed to pursue the racial discrimination and defamation claims.  He asserted his representation ended on December 7, 1998, when he returned the file to Hall. 

Jones filed a motion for summary judgment, along with an affidavit from an expert.  The affidavit stated Jones did not breach the standard of care for an attorney.  The expert asserted a strategy was required to determine whether to file a lawsuit while the matter before the nursing board was pending, as well as the type of cause of action to file.  Hall failed to file an affidavit from an expert in connection with the summary judgment motion.  The circuit court extended to Hall forty-five days to file an affidavit establishing the standard of care and identifying Jones’ breach of the standard.  Hall never submitted the affidavit of an expert.

In ruling on the summary judgment motion, the circuit court considered Hall’s three causes of action as one action alleging legal malpractice.  The court found that she failed to properly establish the standard of care by expert testimony.  The court also noted that Hall still had several viable causes of action at the time Jones ended his representation.  As such, she did not show how his failure to file certain complaints was the proximate cause of any of her alleged damages.  Finally, the court concluded Jones “exercised good judgment and did not deviate from the standard of care” and that Hall “suffered no legal prejudice by the fact [Jones] had not filed suit for her prior to December 7, 1998.”  Hall did not file a Rule 59(e), SCRCP, motion to alter or amend the judgment to have the court specifically address either her breach of contract or breach of fiduciary duty claims.  This appeal follows.

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, this court applies the same standard which governs the trial court:  summary judgment is proper when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”  Rule 56(c), SCRCP; Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 114-115, 410 S.E.2d 537, 545 (1991).  “In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.”  Strother v. Lexington County Recreation Comm’n, 332 S.C. 54, 61, 504 S.E.2d 117, 121 (1998).  “On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below.”  Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001). 

DISCUSSION

Hall raises several issues contesting the grant of summary judgment in favor of Jones.  She alleges: 1) there are issues of fact as to whether an attorney-client relationship existed; [1] 2) the court erred in requiring an affidavit or testimony by an expert to establish the standard of care; 3) there are issues of fact related to Hall’s legal malpractice claim; 4) there are issues of fact related to Hall’s claim of breach of contract; [2] 5) there are issues of fact related to Hall’s breach of fiduciary duty claim; [3] and 6) the affidavit testimony of Jones’ expert was not uncontradicted.  The only issues properly before this court for review are the requirement of expert testimony and affidavit to establish the standard of care, and whether the trial court properly granted summary judgment as to the legal malpractice claim. 

I.       Expert Testimony

Hall contends that expert testimony was not required to establish the standard of care for the legal malpractice action against Jones.  She maintains it is common knowledge that an action should be filed before the statute of limitations has run.  We find the issue in this case went beyond the common knowledge of laypersons.  Hence, an affidavit of an expert was necessary to establish the appropriate standard of care.

In South Carolina, the plaintiff in a legal malpractice suit must prove the following four elements:

(1) the existence of an attorney-client relationship;
(2) a breach of duty by the attorney;
(3) damage to the client;  and
(4) proximate cause of the plaintiff's damages by the breach. 

McNair v. Rainsford, 330 S.C. 332, 342, 499 S.E.2d 488, 493-94 (Ct. App. 1998); Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C. 433, 435,  472 S.E.2d 612, 613 (1996).  Additionally, the plaintiff must generally establish the standard of care by expert testimony.  Smith, 322 S.C. at 435, 472 S.E.2d at 613; Mali v. Odom, 295 S.C. 78, 80, 367 S.E.2d 166, 168 (Ct. App. 1988) (“A plaintiff in a legal malpractice case must ordinarily establish by expert testimony the standard of care, unless the subject matter is of common knowledge to laypersons.”).

In the instant case, the issue of when to file an action and what type of action to file is more complicated than Hall indicates.  As discussed by M.  Malissa Burnette, Jones’ expert and a certified specialist in employment and labor law, Jones needed to consider the ramifications of filing an action while Hall’s nursing license was pending review by the Board.  Jones’ predominant interest was in maintaining Hall’s nursing license. 

Additionally, Burnette indicated there were several theories under which Hall could proceed in asserting racial discrimination.  Burnette stated that several theories could only be asserted against certain defendants and that some theories had a cap on the amount of damages Hall could collect.  Burnette further stated that the only statute under which Hall could have asserted a claim against all defendants in the amount she desired would have been 42 U.S.C. § 1981, and the statute of limitations on that claim did not run until July 30, 2000. 

The combination of considerations in filing a suit—what type of suit to file, when it was most beneficial to file suit, and against whom the suit could be filed—all are beyond the scope of common knowledge held by laypersons.  As such, the common knowledge exception is inapplicable.  We agree with the circuit court and find that the general rule requiring the standard of care be properly established by expert testimony applies in this case.  See Smith, 322 S.C. at 435, 472 S.E.2d at 613. 

After Jones submitted the affidavit of Burnette, which established a standard of care and stated it was not breached, the court allowed Hall forty-five days in which to file her own affidavit by an expert.  The circuit court went beyond the requirements of the rule in trying to accommodate a pro se plaintiff.  Hall failed to file the requisite affidavit from an expert to establish the standard of care. 

II.      Summary Judgment of Legal Malpractice Claim

Hall contends the trial court erred in granting summary judgment on her claim for legal malpractice.  She alleges that issues of fact exist relating to the duty required, the breach of that duty by Jones, the damages caused by the breach, and whether Jones’ actions were the proximate cause of the damages.  We disagree.

As discussed above, Hall was required to establish the standard of care by expert testimony to survive summary judgment.  As she failed to do so, summary judgment by the circuit court was appropriate.  The motion was properly granted in any event. 

Hall’s primary contention is that Jones failed to file a complaint under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §2000e-2(a)(1), with the Equal Employment Opportunity Commission.  Hall asserts Jones missed the 300-day statute of limitations for filing the claim, and she is now barred.

First, this issue is not properly preserved for review on appeal.  Hall originally charged that Jones missed a 180-day statute of limitations for filing.  It was not until after the summary judgment hearing, but before receipt of the final order granting the motion, that she first made the claims regarding the 300-day statute of limitations.  As the trial court did not expressly rule on that issue, it is not preserved for our review on appeal.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).

Next, Hall fails to demonstrate how she was harmed by Jones’ failure to file the claim.  Hall had several causes of action still available to her after December 7, 1998, including an action under 42 U.S.C. § 1981.  Section 1981 and other tort actions do not have a cap on the damages Hall could collect. 

Jones’ representation of Hall was terminated in December 1998.  In July 1999, Hall engaged Weeks to represent her in her racial discrimination claims.  She had almost a year before the statute of limitations ran on her claims pursuant to 42 U.S.C. § 1981 and her tort claims.  As such, Jones’ failure to file claims on Hall’s behalf would not be the proximate cause of her damages, as she still had viable causes of action available to her.                      

CONCLUSION

Accordingly, we concur with the circuit court and hold that the allegation of attorney malpractice required expert testimony as to the standard of care and deviation from such standard.  We conclude the circuit court properly granted Jones’ motion for summary judgment. 

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.


[1]   The trial judge assumed for the purpose of his order that an attorney-client relationship existed.  Therefore, there is no reason for this court to address this issue.

[2]   With regard to the breach of contract issue, the arguments in Hall’s brief are conclusory and fail to cite any supporting authority for the position.  As such, we find Hall abandoned the issues on appeal.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994); Solomon v. City Realty Co., 262 S.C. 198, 201, 203 S.E.2d 435, 436 (1974). 

[3]   With regard to the breach of fiduciary duty claim, Hall appears to be arguing the same issues she argued in relation to her legal malpractice claim.  As such, the issue will be consolidated with the legal malpractice claim.