               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-577

                                 Filed: 15 May 2018

Orange County, No. 15 CVS 668

CAROL D. MOORE, Plaintiff

              v.

WILLIAM W. JORDAN and HILL EVANS JORDAN & BEATTY, A Professional
Limited Liability Company, Defendants


       Appeal by plaintiff from order entered 7 February 2017 by Judge James K.

Roberson in Orange County Superior Court. Heard in the Court of Appeals 29

November 2017.


       Randolph M. James, P.C., by Randolph M. James, for plaintiff-appellant.

       Sharpless & Stavola, P.A., by Frederick K. Sharpless, for defendant-appellees.


       CALABRIA, Judge.


       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.

                                 I.      Background
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                                   Opinion of the Court



      Plaintiff and James B. Moore, III (“Dr. Moore”) were married on 22 September

1984 and separated on 29 March 2009. On 23 July 2009, plaintiff filed Moore v.

Moore, 09 CVD 1183, in Orange County District Court seeking, inter alia, spousal

support and an equitable distribution of marital property. On 21 June 2010, plaintiff

retained William W. Jordan (“Jordan”) and Hill Evans Jordan & Beatty, PLLC,

(collectively, “defendants”) to represent her in the pending action. 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



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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.

      On 20 June 2012, the trial court entered an Equitable Distribution Judgment

and Alimony Order awarding plaintiff alimony and an unequal distribution of the

parties’ net, non-retirement marital and divisible estate. The trial court found, in

relevant part, that:

             26. Plaintiff believed that [Dr. Moore] was moving and
             hiding the parties’ money. The Court finds Plaintiff’s belief
             to be unfounded.

             ...

             40. The parties lived well above their means during their
             marriage. The parties frequently incurred charges on their
             credit cards of $12,000 - $15,000 per month. They hired
             private tennis coaches for the children. Their children
             attended private and/or out-of-state schools. The parties
             used savings and investment accounts during the latter
             part of their marriage to meet their lifestyle expenses; in
             so doing and with the help of negative market forces, the
             parties dwindled their non-retirement cash and
             investment accounts from approximately $3,000,000 to
             under $200,000 by the time the parties separated.

             ...

             83. Plaintiff’s claim for attorney’s fees should be denied. . .
             . The parties’ respective estates, after the entry of this
             Judgment, shall be substantially similar. Many fees were
             incurred by the parties due to Plaintiff’s unfounded
             suspicion that [Dr. Moore] was hiding money, and the
             Court cannot find any statutory basis and justification to


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                                  Opinion of the Court



             support an award of attorney’s fees from [Dr. Moore] to
             Plaintiff.

      Plaintiff did not appeal the Equitable Distribution Judgment and Alimony

Order. However, on 18 June 2015, plaintiff filed a complaint against defendants in

Orange County Superior Court, alleging legal malpractice in their representation of

plaintiff’s equitable distribution action. Following some discovery, on 14 October

2016, defendants filed a motion for summary judgment. On 7 February 2017, the

trial court entered an order granting defendants’ motion for summary judgment.

Plaintiff appeals.

                                   II.    Analysis

      On appeal, plaintiff argues that defendants’ failure to present certain evidence

to the district court proximately caused her to receive a less-favorable judgment at

equitable distribution. We disagree.

      As an initial matter, since this is a legal malpractice action, “the plaintiff has

the burden of proving by the greater weight of the evidence: (1) that the attorney

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) (internal citation omitted).       “In a negligence action, summary

judgment for defendant is proper where the evidence fails to establish negligence on

the part of defendant, establishes contributory negligence on the part of plaintiff, or

establishes that the alleged negligent conduct was not the proximate cause of the


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                                   Opinion of the Court



injury.” Id. (citation and quotation marks omitted). We review the trial court’s

summary judgment order de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d

572, 576 (2008).

      A legal malpractice action is considered “a case within a case.” Young v. Gum,

185 N.C. App. 642, 647, 649 S.E.2d 469, 473 (2007), disc. review denied, 362 N.C. 374,

662 S.E.2d 552 (2008). In order to hold an attorney liable for harm arising from the

attorney’s negligence in another action, the plaintiff must establish causation by

proving that “(1) the original claim was valid; (2) the claim would have resulted in a

judgment in the plaintiff’s favor; and (3) the judgment would have been collectible.”

Id. at 646, 649 S.E.2d at 473 (citation and quotation marks omitted). We look to the

substantive law defining the plaintiff’s underlying claim in order to determine which

facts the plaintiff must forecast to support the legal malpractice claim. Id. at 647,

649 S.E.2d at 473-74.

      In an equitable distribution action,

             the burden of proof is upon the party claiming that
             property is marital property to show by a preponderance of
             the evidence that the property: (1) was acquired by either
             spouse or both spouses; (2) during the marriage; (3) before
             the date of the separation of the parties; and (4) is presently
             owned.

Id. at 647, 649 S.E.2d at 474 (citation and quotation marks omitted). “The party

claiming that property is marital property must also provide evidence by which that

property is to be valued by the trial court.”        Id. at 647-48, 649 S.E.2d at 474.


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                                   Opinion of the Court



Accordingly, in order to succeed on her legal malpractice claim against defendants,

“plaintiff was required to forecast evidence that would be sufficient to demonstrate

not only that defendants were negligent in advising her, but also evidence which

would support plaintiff’s underlying equitable distribution claim and her allegation

that an equitable distribution judgment in her favor would have exceeded” the

amount she actually received. Id. at 648-49, 649 S.E.2d at 474.

      On appeal, plaintiff asserts that there are several assets that would have been

classified as marital property, but for defendants’ failure to present expert financial

evidence at equitable distribution. For example, plaintiff contends that a projected

income spreadsheet prepared by the Moores’ financial planner, Kyle Elliott, along

with Elliott’s deposition testimony, establishes that on 1 December 2008, “the Moores

owned a 20% interest in a Texas business valued at 1.8 million dollars.”

      Assuming, arguendo, that this bare assertion and evidence would suffice at

equitable distribution, plaintiff’s belief that the Moores’ business interest would be

classified as marital property might be correct, because the spreadsheet was drafted

118 days prior to the parties’ separation. See generally N.C. Gen. Stat. § 50-20 (2017)

(“Distribution by court of marital and divisible property.”). However, N.C. Gen. Stat.

§ 50-21(b) provides, in pertinent part:

             For purposes of equitable distribution, marital property
             shall be valued as of the date of the separation of the parties,
             and evidence of preseparation and postseparation
             occurrences or values is competent as corroborative


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                                    Opinion of the Court



             evidence of the value of marital property as of the date of
             the separation of the parties.

N.C. Gen. Stat. § 50-21(b) (emphasis added).               Accordingly, at best, Elliott’s

spreadsheet and testimony would have been competent as corroborative evidence of

the value of the Moores’ business interest.

      In any event, this alleged asset was never presented to the district court

because there was not sufficient supporting evidence for equitable distribution

purposes. Jordan questioned Elliott about the spreadsheet and business interest

during his deposition prior to equitable distribution:

             [JORDAN:] All right. Now over to the right I see that
             you’ve got some accounts listed and you have Carol IRA,
             Carol taxable, Jim IRA, Jim taxable, 20 percent of business
             and rental house equity.

             [ELLIOTT:] Yes, sir.

             Q. Okay. Can you explain what those accounts are and
             numbers represent?

             A. The IRA and taxable are the accounts that are managed
             by my firm. Twenty percent of business references what I
             was – I guess what I was told was his interest in his new
             business. And that is the estimate of the value of that
             stock.

             Q. And is that based on what he told you?

             A. Yes, sir.

             Q. And what was that new business?

             A. I’ve gone blank on the name. It’s where he’s currently


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                                  Opinion of the Court



             employed.

             ...

             Q. . . . [E]arlier you were talking about a business that [Dr.
             Moore] had 20 percent interest in.

             A. Okay; right.

             Q. And you couldn’t remember the name of it. And I’m – I
             want to know if it was Highline FI. Or was it Mentis
             Analytics or some other business?

             A. I believe Highline was his old company.

             Q. Uh-huh.

             A. And . . . The 20 percent was in the new business that I
             believe is located in Texas.

             Q. Okay. But you don’t remember the name of it?

             A. I’ve gone totally blank; and that doesn’t sound familiar.

      Elliott’s spreadsheet includes the specific disclosure that “Wilbanks, Smith and

Thomas Asset Management LLC does not guarantee the accuracy of the data or future

performance returns.” (emphasis added). And although plaintiff argues that this

“asset should have been disclosed, valued, and distributed as marital property”

during the equitable distribution trial, she presents no evidence of its existence

beyond Elliott’s spreadsheet and testimony. Indeed, plaintiff fails to provide even the

name of any business in which she and Dr. Moore claimed a 20% ownership interest.

In short, “plaintiff has not forecast any evidence which would permit the court to



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                                    Opinion of the Court



identify, value or classify” any alleged asset not considered by the equitable

distribution court, “and in the absence of this evidence, the court could not value or

classify the property.” Young, 185 N.C. App. at 649, 649 S.E.2d at 474.

      Plaintiff also contends that defendants breached the community’s standard of

care by failing to present expert financial testimony to support her theory that Dr.

Moore hid marital assets. Plaintiff supports this contention by relying upon the

report and deposition testimony of Buddy Herring, her own expert witness in the

instant case.

      An attorney must “represent his client with such skill, prudence, and diligence

as lawyers of ordinary skill and capacity commonly possess and exercise in the

performance of the tasks which they undertake. The standard is that of members of

the profession in the same or similar locality under similar circumstances.” Rorrer,

313 N.C. at 356, 329 S.E.2d at 366. However, “[t]he mere fact that one attorney-

witness testifies that he would have acted contrarily to or differently from the action

taken by defendant is not sufficient to establish a prima facie case of defendant’s

negligence. . . . Differences in opinion are consistent with the exercise of due care.”

Id. at 357, 329 S.E.2d at 367.

      During his deposition in the instant case, Jordan explained why he decided

not to present plaintiff’s expert evidence to the equitable distribution court:

                      [Allen] had lots of questions. He had theories. But
                there were no – there was nothing that could be


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                                   Opinion of the Court



             substantiated to his various theories about the money.
             And, therefore, I deemed it speculative.

                   It was unsupported. . . . I did express concern about
             the quality of the work of Carl Allen on multiple occasions.
             And I don’t believe that Heather Linton did work that
             would be usable.

                   . . . I discussed with Ms. Moore on many occasions
             leading up to the trial the – the concern that I had with
             regard to what evidence we had of the so-called missing
             money.

                    It was non-existent. And as a lawyer, you have an
             obligation to not offer evidence that you know is not going
             to be allowed in and doesn’t – doesn’t represent probative
             evidence.

             ...

                    I’ve also found that in my 40-some years of trial
             practice that you weaken a case when you’re trying a case
             to the bench by offering evidence that’s basically fluff or
             speculative and subject to multiple attacks by the
             opposition.

                    So if you don’t have something that is really
             probative, you’re better off leaving it alone, instead of
             setting up a dummy for the other side to knock down and
             make you look bad with.

      “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.


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                                   Opinion of the Court



                                  III.   Conclusion

      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.

      AFFIRMED.

      Judges DAVIS and TYSON concur.




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