An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1041
                         NORTH CAROLINA COURT OF APPEALS

                             Filed:     19 August 2014


DOUGLAS S. HARRIS,
     Plaintiff,

      v.                                      Guilford County
                                              No. 12 CVS 5643
LISA BALLANTINE,
     Defendant.


      Appeal by plaintiff from order               entered 8 March 2013           by

Judge John O. Craig,          III in Guilford         County Superior         Court.

Heard in the Court of Appeals 23 April 2014.


      Douglas S. Harris, pro se, for plaintiff-appellant.

      Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady
      Richardson, Jr., for defendant-appellee.


      DAVIS, Judge.


      Douglas     S.   Harris    (“Plaintiff”)      appeals     from   the    trial

court’s 8 March 2013 order granting in part and denying in part

the   motions      for    summary     judgment     of    Plaintiff      and    Lisa

Ballantine     (“Defendant”).         Plaintiff’s       primary   contention      on

appeal is that the entry of summary judgment on the issue of

whether he committed legal malpractice was improper due to the
                               -2-
existence of genuine issues of material fact.       After careful

review, we vacate the trial court’s order and remand for further

proceedings.

                        Factual Background

    In August 2010, Park Sterling Bank (“the Bank”) brought an

action (“the Bank Lawsuit”) against Defendant in New Hanover

County Superior Court seeking a deficiency judgment against her

in connection with her default on a loan.    Defendant retained an

attorney, Kevin Sink (“Mr. Sink”), to represent her in the Bank

Lawsuit.

    On 16 December 2010, the Bank served Defendant, through Mr.

Sink, with written discovery requests, including a request for

admissions pursuant to Rule 36 of the North Carolina Rules of

Civil Procedure.    On 28 January 2011, Defendant terminated the

services of Mr. Sink1 and instructed him to send her case file to

another attorney, Al Butler (“Mr. Butler”), who was representing

Defendant’s husband in a separate matter.    Mr. Butler noted that

responses to the Bank’s pending discovery requests were due on

17 February 2011.   As a result, he obtained an extension of the

deadline until 21 March 2011.        On 21 March 2011, Mr. Butler

obtained another extension of time, extending the deadline to 13



1
  It appears from the record that Mr. Sink never actually
withdrew as Defendant’s counsel of record in the Bank Lawsuit.
                                    -3-
May 2011 while Defendant “pursued the possibility of filing a

bankruptcy petition.”

     On 6 May 2011, Defendant met with Plaintiff, an attorney in

Greensboro, to discuss both the Bank Lawsuit and the possibility

of her filing a bankruptcy petition.          The events that transpired

at this meeting are disputed by the parties.             Defendant contends

that Plaintiff agreed to represent her in the Bank Lawsuit and

to   respond    to   the   Bank’s   pending    request    for   admissions.

Plaintiff,     conversely,   maintains    that   he   did    not   agree   to

represent her in the Bank Lawsuit and instead merely stated his

willingness to “assist” her in preparing her responses to the

Bank’s request for admissions.

     On 16 May 2011, the Bank’s attorney emailed Defendant and

informed her that

          I have not heard anything further from you
          in response to my recent emails and most
          importantly I have had no response (or have
          any other arrangements been made for a
          further extension) to my request for the
          completed discovery documents no later than
          May 13[.]    To this end, please be advised
          that I plan on moving for summary judgment
          in order to reduce this matter to judgment.
          I am sorry but I cannot continue to hold
          this matter in abeyance any longer as I have
          held the matter for months now on Al
          Butler’s assurance that he would be filing a
          bankruptcy petition for you which we now
          know is not the case.
                                         -4-
    On    20    June    2011,    after    failing       to     receive    Defendant’s

responses by that date, the Bank filed a motion for summary

judgment,      requesting      that   each     matter        contained    within   its

request for admissions be deemed admitted as provided for in

Rule 36(a).      On that same day, the Bank sent Defendant a letter

stating, in pertinent part, as follows:

              Most recently, I received a call from
              attorney Douglas Harris who indicated that
              he would be making an appearance in this
              matter.     Although I did not grant an
              extension or agree that the deemed admitted
              responses to the requests for admissions
              would be waived[.]      Mr. Harris indicated
              that   he   was   forwarding  the  discovery
              responses and I should receive them no later
              than May 23, 2011.     To date, no discovery
              responses have been received and my calls to
              Mr. Harris have gone un-returned.       This
              matter appears on the trial calendar for
              August 15, 2011 . . . Please be advised that
              I intend to rely on the deemed admitted
              responses to the request for admissions and
              will not waive this position.

    On    1    July    2011,    Defendant      spoke    with     another      attorney,

Grady   Richardson      (“Mr.    Richardson”),         who    agreed     to   represent

Defendant in the Bank Lawsuit.               On 27 July 2011, Mr. Richardson

served the Bank’s attorney with Defendant’s responses to the

Bank’s request for admissions along with two affidavits.                           The

first affidavit addressed issues presented in the Bank Lawsuit

while the second affidavit detailed her interactions with Mr.

Sink and Mr. Harris and asserted that she had “been prejudiced
                                                -5-
in    this   action     by     the      failures      and       ineffectiveness         of   [Mr.

Sink]. . . and [Plaintiff].”                    In addition, Mr. Richardson also

filed a motion to “[w]ithdraw and/or [a]mend [a]dmissions . . .

pursuant to Rule 36(b) of the North Carolina Rules of Civil

Procedure.”         The motion was granted by the Honorable Charles H.

Henry    who    entered       an     order      on    3    August       2011    stating      that

“Defendant’s responses dated 27 July 2011 to Plaintiff’s Request

for     Admissions      shall        be   allowed.”              The    Bank        subsequently

withdrew its motion for summary judgment, and on 29 June 2012,

the Bank settled its lawsuit with Defendant for $7,250.00.

       Plaintiff       filed       the    present         action       in   Guilford        County

Superior Court on 24 April 2012 seeking a declaratory judgment

that he “never represented [Defendant] on any legal matter and

has    never    been    retained          whether         by    contract       or    payment   or

agreement to represent [Defendant] on any legal matter.”                                        In

response,      Defendant       filed      counterclaims            alleging         professional

negligence, legal malpractice, and breach of fiduciary duty.                                    On

20 February 2013, Plaintiff filed a motion for summary judgment

pursuant       to   Rule     56    of     the    North         Carolina     Rules      of    Civil

Procedure, and on 25 February 2013, Defendant filed a cross-

motion for summary judgment.

       The trial court heard the parties’ respective motions for

summary judgment on 4 March 2013.                         On 8 March 2013, the court
                                              -6-
entered     an    order      (1)     denying    Plaintiff’s       motion       for     summary

judgment as to his declaratory judgment claim; (2) finding that

Plaintiff        had     committed          legal     malpractice;            (3)     granting

Plaintiff partial summary judgment as to the claims for damages

asserted     by        Defendant       in    her      counterclaims;           (4)     finding

Plaintiff        “liable      to     the    Defendant    for      nominal       damages     of

$1.00”; (5) granting Defendant’s motion for summary judgment as

to Plaintiff’s claim for declaratory relief; and (6) ordering

Plaintiff        to    pay     Defendant       the     total      sum     of        $9,214.20,

consisting of $8,590.00 in attorneys’ fees pursuant to N.C. Gen.

Stat. § 6-21.5 and $264.20 in costs based on N.C. Gen. Stat. §

7A-305.

      In response to an exchange of emails between the parties

and   the   trial       court      over     whether    Defendant        had    sufficiently

requested        an   award     of   special       damages   in    her    counterclaims,

Defendant filed on 2 April 2013 a motion for reconsideration

pursuant to Rule 60(b).                However, before the trial court ruled

on this motion, Plaintiff filed a notice of appeal to this Court

regarding the trial court’s 8 March 2013 order.

      On 24 September 2013, Defendant filed a motion notifying

this Court of the pending Rule 60(b) motion and requesting that

the case be remanded to the trial court for ruling on that

motion.     This Court entered an order on 7 October 2013 remanding
                                  -7-
the matter to the trial court for it to “conduct an evidentiary

hearing on the Rule 60(b) motion pending before it . . . and

[to] indicate what action it would be inclined to take were an

appeal not pending before this Court.”

    In response to this Court’s order, an evidentiary hearing

on the Rule 60(b) motion was held by the trial court on 14

November 2013.   On 25 November 2013, the trial court entered an

order stating that if it had jurisdiction to rule on Defendant’s

Rule 60(b) motion, it would be inclined to award Defendant’s

“requested   attorneys’   fees,   costs   and   expenses   as   damages

arising out of, and proximately caused by, [Plaintiff’s] legal

malpractice and negligence in the Bank Lawsuit . . . .”

                              Analysis

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows 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.”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576

(2008) (citation and quotation marks omitted).       The role of the

trial court in ruling on a motion for summary judgment “is to

determine whether a genuine issue of material fact exists, but

not to decide an issue of fact.”        Broyhill v. Aycock & Spence,
                                       -8-
102 N.C. App. 382, 389, 402 S.E.2d 167, 172, aff'd per curiam,

330 N.C. 438, 410 S.E.2d 392 (1991).

    In the present case, the key issue before us is whether the

trial court usurped the role of the fact-finder in its 8 March

2013 order.      Because the record reveals the existence of genuine

issues of material       fact, we conclude that the trial court’s

order must be vacated.

    An attorney-client relationship is formed “when a client

communicates with an attorney in confidence seeking legal advice

regarding    a   specific     claim   and    with   an    intent     to     form    an

attorney-client      relationship.”            Raymond      v.      N.C.     Police

Benevolent Ass’n., Inc., 365 N.C. 94, 98, 721 S.E.2d 923, 926

(2011).      Such a relationship may be implied by the parties’

conduct “and is not dependent on the payment of a fee, nor upon

the execution of a formal contract . . . . The dispositive

question . . . is whether [the] attorney’s conduct was such that

an attorney-client relationship could reasonably be inferred.”

Booher v. Frue, 98 N.C. App. 585, 587, 392 S.E.2d 105, 106,

disc.     review.   denied,    328    N.C.   89,    402    S.E.2d     410    (1991)

(internal    citations   and    quotation      marks      omitted).         “[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
                                      -9-
breached the duties owed to his client . . . and that this

negligence (2) proximately caused (3) damage to the plaintiff.”

Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985)

(citations omitted).

    In support of her motion for summary judgment, Defendant

submitted an affidavit in which she testified that (1) on 6 May

2011, she traveled to Greensboro at the request of Plaintiff to

discuss issues surrounding the Bank Lawsuit; (2) during this

meeting, Plaintiff agreed to represent her in the Bank Lawsuit

and agreed to contact the Bank’s attorney regarding the deadline

for her responses to the Bank’s request for admissions; (3) the

Bank’s attorney emailed Defendant that the discovery responses

were due by 13 May 2011; (4) on 16 May 2011, the Bank’s attorney

emailed Defendant that no extension to the 13 May 2011 deadline

had been granted and that he would be seeking the entry of

summary judgment; (5) Defendant called Plaintiff after receiving

the Bank attorney’s email at which time Plaintiff told her that

he had left a message for the Bank’s attorney and would call him

again   in     order   to    obtain     an     extension;     (6)    Plaintiff

subsequently    informed    Defendant       that   the   Bank’s   attorney   had

agreed to extend the deadline until 23 May 2011; (7) on 23 May

2011, Plaintiff told Defendant that he was going to submit the

responses to the Bank’s attorney by the end of the day; (8) on
                                            -10-
22 June 2011, Defendant was served with the Bank’s motion for

summary      judgment       which     “shocked       and     surprised”         her;    and    (9)

Defendant attempted to contact Plaintiff to ascertain why the

discovery responses had not been submitted but never received an

explanation from Plaintiff.

       In   response       to     Defendant’s        motion       for    summary       judgment,

Plaintiff submitted an affidavit in which he gave the following

account of the key events:                  (1) on 6 May 2011, Plaintiff met

with Defendant to discuss a “bankruptcy matter” and during this

meeting      they    also    discussed         the    Bank       Lawsuit;    (2)       Plaintiff

never agreed to represent Defendant in the Bank Lawsuit nor did

he   agree    to     “answer       admissions        and    other       discovery      requests

pursuant      to     the    Bank      Lawsuit”;      (3)     during       the    6     May    2011

meeting, he merely agreed to “assist her in timely preparing and

responding      to    the    bank’s      [request          for    admissions]”         and    then

proceeded to provide such assistance via a phone conversation in

which he discussed proposed discovery responses with her over

the course of an hour “with the expectation that she would be

answering     and     that      she    would    be    filing       them”;       (4)    the    only

conversation he had with the Bank’s attorney was a single phone

call   at    Defendant’s          request      in    which       Plaintiff      informed      the

Bank’s      attorney       that     Defendant        would       provide     her       responses

shortly and asked the Bank’s attorney “if he would have any
                                           -11-
problem switching mediators because [Defendant] did not like the

current one”; and (5) no payment arrangements were ever agreed

upon between Plaintiff and Defendant.

      Based on the competing factual assertions contained in the

parties’ respective affidavits regarding the events at issue, we

believe that resolution of this case at the summary judgment

stage was improper.          There is conflicting evidence in the record

regarding     the      specific          contours        of     any      attorney-client

relationship       that      may    have    existed           between      Plaintiff     and

Defendant.        We have previously vacated a trial court’s entry of

summary judgment in a legal malpractice action where factual

disputes     existed         regarding        the        alleged         attorney-client

relationship.       See Broyhill, 102 N.C. App. at 389-90, 402 S.E.2d

at 172 (concluding that trial court’s entry of summary judgment

in   malpractice       action      was     improper       where       parties    disputed

whether     attorney        had    actually       been        retained     to   represent

plaintiff    in     real    estate    transaction);            Ives   v.    Real-Venture,

Inc., 97 N.C. App. 391, 399, 388 S.E.2d 573, 578 (holding that

trial     court     erred     in    granting       summary        judgment      on     legal

malpractice claim where genuine issue of material fact existed

as   to   whether    attorney      had     duty    to    conduct        title   search    or

obtain title insurance on behalf of party asserting malpractice
                                       -12-
claim),   disc.    review.     denied,   327     N.C.    139,    394    S.E.2d   174

(1990).

     In the present case, it will be the role of the fact-finder

at   trial   to    determine     the     nature    of     any     attorney-client

relationship      that   may   have    existed    between       the    parties   and

whether   any     applicable    duty     of    care     arising       out   of   that

relationship was breached by Plaintiff.                 Accordingly, we vacate

the trial court’s order and remand this case for trial.                      Because

we are vacating the trial court’s order, we decline to address

the remaining arguments raised by the parties.

                                  Conclusion

     For the reasons stated above, we vacate the trial court’s 8

March 2013 order and remand for further proceedings.

     VACATED AND REMANDED.

     Judges STROUD and McCULLOUGH concur.

     Report per Rule 30(e).
