               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1335

                                  Filed: 5 July 2016

Stanly County, No. 14 CVS 650

DURON LAMAR HAMPTON, Plaintiff,

              v.

ANDREW T. SCALES, Defendant.


        Appeal by plaintiff from judgment entered 13 July 2015 by Judge Joseph N.

Crosswhite in Stanly County Superior Court. Heard in the Court of Appeals 28 April

2016.


        The Law Office of Charles M. Putterman, P.C., by Charles M. Putterman, for
        plaintiff-appellant.

        Poyner Spruill LLP, by E. Fitzgerald Parnell, III, T. Richard Kane, and J. M.
        Durnovich, for defendant-appellee.


        ZACHARY, Judge.


        Duron Hampton (plaintiff) appeals from an order granting summary judgment

in favor of Andrew Scales (defendant) on plaintiff’s claim of legal malpractice against

defendant. Defendant previously represented plaintiff on eight charges of second-

degree rape and one charge of crime against nature. On appeal plaintiff argues that

the trial court erred by entering summary judgment against him, on the grounds that

the evidence before the trial court presented a genuine issue of material fact on the

issue of whether defendant’s representation of plaintiff on these charges met the
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                                         Opinion of the Court



applicable standard of care. We conclude that the trial court did not err by granting

summary judgment for defendant and that its order should be affirmed.

                                I. Factual and Procedural Background

      On 30 June 2011, Sharon Thomas reported to Albemarle Police Officer Star

Gaines that her fifteen-year-old daughter “Tina”1 had been having sex with a twenty-

one year old man whom Tina identified as “Run Run.” Plaintiff has admitted that he

was previously known by the nickname Run Run. Detective Cindi Rinehart

investigated Ms. Thomas’s allegation. During this investigation, Tina was evaluated

at the Butterfly House Children’s Advocacy House (“Butterfly House”), where she was

interviewed by Registered Nurse Amy Yow, a licensed forensic interviewer and a

certified sexual assault nurse examiner. Nurse Yow first conducted a videotaped

interview of Tina, during which Tina told Nurse Yow that she had previously had

sexual relations with three men, whom she identified as “DeShawn,” “Frankie,” and

“Cameron.” At the end of the videotaped portion of the interview, Nurse Yow and

Tina were joined by certified nurse midwife Rebecca Huneycutt, who performed a

comprehensive physical examination of Tina. As Nurse Yow, Nurse Huneycutt, and

Tina walked to the examination room, Tina told the two nurses that she had also had

sex with plaintiff, whom she identified as Run Run.                    Officer Gaines, Detective

Rinehart, Nurse Yow, and Nurse Huneycutt each executed an affidavit averring that



      1   To protect the privacy of the victim, we refer to her by the pseudonym “Tina.”

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Tina had stated that she had sex with plaintiff. In addition, Detective Rinehart

obtained a statement from D.H., a friend of Tina’s, in which D.H. stated that Tina

had called D.H. on more than ten occasions to talk about having sexual intercourse

with plaintiff.

       Detective Rinehart also reviewed Tina’s school records. In 2002, when Tina

was six years old and in kindergarten, testing indicated that her I.Q. was around 64

and she was classified by the school system as being an “educable mentally disabled”

student. When Tina was reevaluated in 2009, she was classified as having a “mild”

intellectual disability. In her interview with Nurse Yow, Tina reported that she was

in a “special class” at school.

       On 14 February 2012, arrest warrants were issued charging plaintiff with

eight charges of second-degree rape, in violation of N.C. Gen. Stat. § 14-27.3,2 and one

charge of crime against nature in violation of N.C. Gen. Stat. § 14-177. The charges

of second-degree rape alleged that plaintiff had engaged in intercourse with a person

who is mentally disabled. These warrants were served on plaintiff while he was in

the Stanly County jail on other charges. After plaintiff was charged with these

offenses, he sent a note to Detective Rinehart asking her to obtain “a good plea offer”

that would enable plaintiff to be released from jail and return to his wife and child.



       2  N.C. Gen. Stat. § 14-27.3 was recodified as N.C. Gen. Stat. § 14-27.22, effective 1 December
2015. Plaintiff was charged with offenses occurring in 2011 and was charged under former N.C. Gen.
Stat. § 14-27.3.

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      On 2 March 2012, defendant was appointed by the Court to represent plaintiff

on these charges. Plaintiff sent several notes to defendant. None of the letters in the

record that were written by plaintiff to defendant include any assertion by plaintiff

that he was factually innocent of the charged offenses or that he wanted a jury trial.

Instead, all of plaintiff’s notes urgently requested defendant to negotiate a plea

bargain that would enable plaintiff to be released from jail as soon as possible. For

example, on one occasion plaintiff wrote the following to defendant:

             Sir, I am not trying to fight these charges in no way. I have
             a wife and daughter at home that desperately need me.
             You are the best attorney for this case. I just want to plea
             out. These charges are from last year before I went to
             prison, and I’m truly a changed person with
             responsibilities. I was attending college before these new
             charges. I am no longer breaking laws, getting in all kinds
             of mess. . . . I’m asking for you [to] please get my life back.
             This is it for me. My family is my everything. Please move
             speedily on a plea of any kind of probation. I’ll take it.

      Defendant was successful in negotiating a plea bargain with the prosecutor

and on 27 April 2012, plaintiff pleaded guilty to one charge of taking indecent liberties

in violation of N.C. Gen. Stat. § 14-202.1 (2014), a Class F felony. Plaintiff entered a

guilty plea pursuant to N.C. v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162

(1970). “A defendant enters into an Alford plea when he proclaims he is innocent,

but intelligently concludes that his interests require entry of a guilty plea and the

record before the judge contains strong evidence of actual guilt.” State v. Cherry, 203

N.C. App. 310, 314, 691 S.E.2d 40, 44 (2010) (citation omitted). In exchange for


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plaintiff’s guilty plea, the prosecutor dismissed the eight charges of second-degree

rape and the charge of crime against nature. Plaintiff was released from jail, placed

on probation, and required to register with the North Carolina Sex Offender Registry.

Additional details about the charges against plaintiff will be discussed below, as

relevant to the issues raised on appeal.

      About a year after pleading guilty to taking indecent liberties, plaintiff

obtained a signed statement from Tina stating that she and plaintiff had not had any

sexual contact. Plaintiff retained defendant to prepare a motion for appropriate relief,

and Mr. Patrick Currie was appointed to represent plaintiff in court. A hearing on

plaintiff’s motion for appropriate relief was conducted by Judge Anna Wagoner on 13

May 2013, at which testimony was elicited from Ms. Thomas and Tina in support of

plaintiff’s contention that in 2011 Tina had falsely accused him of having sexual

relations with her. On 24 May 2013, Judge Wagoner entered an order granting

plaintiff’s motion for appropriate relief, setting aside his guilty plea, dismissing all

charges against plaintiff related to sexual contact with Tina, and removing plaintiff

from the Sex Offender Registry.

      On 24 July 2014, plaintiff filed the instant suit against defendant seeking

damages for legal malpractice and asserting that defendant had been negligent in his

representation of plaintiff on the criminal charges discussed above. Plaintiff alleged

that defendant had failed to “properly investigate” the charges against him and had



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mistakenly told plaintiff that during the videotaped portion of Tina’s interview she

named plaintiff as one of the men with whom she had sex. Plaintiff did not identify

any specific damages, but alleged generally that as a “direct and proximate result” of

defendant’s negligence plaintiff had “sustained pecuniary damages, mental anguish

and emotional distress[.]” Defendant filed a motion for summary judgment on 1 July

2015. Following a hearing on defendant’s motion, the trial court entered an order on

13 July 2015 granting summary judgment in favor of defendant and dismissing

plaintiff’s complaint.   Plaintiff has appealed to this Court from the summary

judgment order entered against him.

                                   II. Standard of Review

      Pursuant to the provisions of N.C. Gen. Stat. § 1A-1, Rule 56(c) (2014),

summary judgment is properly entered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C. Gen. Stat. § 1A-1 Rule 56(e) requires that evidence

presented to the trial court on a motion for summary judgment must be admissible

at trial. “ ‘When considering a motion for summary judgment, the trial judge must

view the presented evidence in a light most favorable to the nonmoving party.’ ” Ron

Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 488 (2010) (quoting In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)).



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             The party moving for summary judgment bears the burden
             of establishing that there is no triable issue of material
             fact. This burden may be met “by proving that an essential
             element of the opposing party’s claim is nonexistent, or by
             showing through discovery that the opposing party cannot
             produce evidence to support an essential element of his
             claim or cannot surmount an affirmative defense which
             would bar the claim.”

DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)

(quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425,

427 (1989)) (other citation omitted). “ ‘[O]nce the party seeking summary judgment

makes the required showing, the burden shifts to the nonmoving party to produce a

forecast of evidence demonstrating specific facts, as opposed to allegations, showing

that he can at least establish a prima facie case at trial.’ ” Pacheco v. Rogers & Breece,

Inc., 157 N.C. App. 445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway,

139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547

S.E.2d 810 (2001)).

      In the course of a trial court’s ruling on a motion for summary judgment, “ ‘[a]

verified complaint may be treated as an affidavit if it (1) is made on personal

knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows

affirmatively that the affiant is competent to testify to the matters stated therein.’ ”

Merritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings, 196 N.C. App. 600,

605, 676 S.E.2d 79, 83-84 (2009) (quoting Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d

189, 194 (1972)). “On the other hand, ‘the trial court may not consider an unverified


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pleading when ruling on a motion for summary judgment.’ Plaintiff’s complaint in

this case was not verified, so it could not be considered in the course of the trial court’s

deliberations concerning Defendant’s summary judgment motion.” Rankin v. Food

Lion, 210 N.C. App. 213, 220, 706 S.E.2d 310, 315-16 (2011) (quoting Tew v. Brown,

135 N.C. App. 763, 767, 522 S.E.2d 127, 130 (1999), disc. review improvidently

allowed, 352 N.C. 145, 531 S.E.2d 213 (2000)).

       “We review a trial court’s order granting or denying summary judgment de

novo. ‘Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment’ for that of the lower tribunal.” Craig v. New Hanover

Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quoting In re Appeal

of The Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

       In a negligence action, “summary judgment for defendant is correct where the

evidence fails to establish negligence on the part of defendant . . . or determines that

the alleged negligent conduct complained of was not the proximate cause of the

injury.” Bogle v. Power Co., 27 N.C. App. 318, 321, 219 S.E. 2d 308, 310 (1975), cert.

denied, 289 N.C. 296, 222 S.E. 2d 695 (1976) (citation omitted). “ ‘If the trial court

grants summary judgment, the decision should be affirmed on appeal if there is any

ground to support the decision.’ ” Point South v. Cape Fear Public Utility, __ N.C.

App. __, __, 778 S.E.2d 284, 287 (2015) (quoting Nifong v. C.C. Mangum, Inc., 121

N.C. App. 767, 768, 468 S.E.2d 463, 465 (1996)).



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                           III. Legal Malpractice: General Principles

       It is axiomatic that:

                [W]hen an attorney engages in the practice of the law and
                contracts to prosecute an action in behalf of his client, he
                impliedly represents that (1) he possesses the requisite
                degree of learning, skill, and ability necessary to the
                practice of his profession and which others similarly
                situated ordinarily possess; (2) he will exert his best
                judgment in the prosecution of the litigation entrusted to
                him; and (3) he will exercise reasonable and ordinary care
                and diligence in the use of his skill and in the application
                of his knowledge to his client's cause.

Hodges v. Carter, 239 N.C. 517, 519, 80 S.E.2d 144, 145-46 (1954) (citations omitted).

In the present case, plaintiff does not assert that defendant lacked “the requisite

degree of learning, skill, and ability” or that he failed to exercise his best judgment.

Instead, plaintiff’s claim of legal malpractice is based on his assertion that defendant

failed to “exercise reasonable and ordinary care and diligence” in his representation

of plaintiff.

       A plaintiff who seeks damages on a claim of professional malpractice based on

negligence by an attorney “has the burden of proving by the greater weight of the

evidence: (1) that the attorney breached the duties owed to his client, as set forth by

Hodges, 239 N.C. 517, 80 S.E. 2d 144, 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). “ ‘To establish that negligence is a proximate cause of the loss suffered, the

plaintiff must establish that the loss would not have occurred but for the attorney’s


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conduct.’ ” Belk v. Cheshire, 159 N.C. App. 325, 330, 583 S.E.2d 700, 704 (2003)

(quoting Rorrer, at 361, 329 S.E.2d at 369).

                                     IV. Legal Analysis

      As discussed above, the elements of a claim for legal malpractice are a breach

of the attorney’s duty to his or her client, and damages that proximately result from

the attorney’s negligence. In the present case, we conclude that plaintiff has failed

to produce evidence of a prima facie case that the acts and omissions upon which

plaintiff bases his negligence claim, even if proven, constituted a breach of the

standard of care or proximately caused damage to plaintiff.

                    A. Defendant’s Evidence Shifted the Burden of Proof

      It is undisputed that defendant repeatedly directed defendant to negotiate a

plea bargain with the prosecutor, under the terms of which plaintiff would be released

from jail and allowed to rejoin his family. There is no evidence in the record to suggest

that plaintiff ever indicated any desire to resolve the charges against him at a jury

trial. Consequently, the question raised by plaintiff’s complaint was whether

defendant’s representation of plaintiff met the standard of care for an attorney

representing a criminal defendant who has directed his counsel that his preference is

to resolve the charges against him with a plea arrangement. The standard of care for

an attorney representing a criminal defendant requires more extensive investigation

and preparation for a jury trial than for entry of a plea of guilty. Nonetheless, we



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agree with plaintiff’s general proposition that a client’s preference for a plea bargain

as opposed to a trial does not relieve the attorney of the duty to exercise reasonable

care and diligence in negotiating an appropriate plea arrangement and representing

the client’s interests in this regard.

       In this case, plaintiff was charged with eight Class C felonies and one Class I

felony, for which he was potentially subject to imprisonment for more than forty

years. Had the charges gone to trial, the primary evidence against plaintiff would

have been Tina’s testimony.3 In addition, the record includes extensive corroborating

evidence, including the following:

               1. The affidavit of Albemarle Police Officer Gaines stating
               that on 30 July 2011 Ms. Thomas reported that her
               daughter, Tina, had admitted having sex with plaintiff.

               2. A statement from D.H. that Tina had called her a
               number of times to discuss having sex with plaintiff.

               3. The affidavit of Nurse Yow stating that after the initial
               videotaped interview ended and as she, Tina, and Nurse
               Huneycutt were walking to the medical examination room,
               Tina told the two nurses that she had had sex with
               plaintiff.

               4. The affidavit of Nurse Huneycutt stating that during her
               physical examination of Tina she asked Tina if she had
               anything else to report and that Tina “promptly responded
               that she had had sexual relations with [plaintiff].”



       3 In 2014, Tina signed a statement saying that she had falsely accused plaintiff of having sex
with her. Our evaluation of plaintiff’s legal malpractice claim depends, however, on the evidence
available in 2012, when defendant represented plaintiff.

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              5. The affidavit of Detective Rinehart summarizing her
              investigation of the charges, including her interview with
              Ms. Thomas, review of Tina’s school records, interview of
              D.H., and her review of Tina’s interview and examination
              at Butterfly House.

              6. Tina’s school records, which established that she was
              intellectually disabled.

        On this record, we conclude that the charges against plaintiff were supported

by adequate evidence to take the case to the jury. Defendant successfully negotiated

a plea arrangement pursuant to the terms of which plaintiff pleaded guilty to one

charge of taking indecent liberties, agreed to register with the North Carolina Sex

Offender Registry, and would be released from jail, in exchange for which the State

dismissed the numerous other serious charges against plaintiff. Given plaintiff’s

insistence on pleading guilty, the seriousness of the charges against plaintiff, and the

strength of the evidence supporting these charges, the plea bargain arranged by

defendant appears to reflect a reasonable exercise of professional skill on defendant’s

part.

        Moreover, the record reflects that defendant was aware of both the strengths

and weaknesses of the State’s case. At the hearing during which plaintiff pleaded

guilty to taking indecent liberties, plaintiff shared the following with the court:

              DEFENDANT: Your Honor, this is a case Mr. Hampton
              and I have spoken at length [about]. He’s obviously, very
              conflicted. He’s got a wife and a young daughter. And why
              he’s entering the Alford plea, because of the liability, the
              criminal liability that he’s facing, exposed to, with [the]
              amount of charges that is a Class C felony. And actually, I

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             think the District Attorney’s office was seeking to send
             superseding indictments to the grand jury for the B1
             felonies. So therefore, even more exposure.
                    I explained to him the risks. And with hesitation
             and with concern, he’s wanting to take the plea. I’ve asked
             him numerous times if he was sure, and he says that he is,
             but he’s doing it because -- not because he’s guilty, but
             because he wants to get out and be with his family.
                    I’ve made abundantly sure that he’s wanting to do
             this. Again, he’s hesitant, but is doing it for those reasons.
             That’s why we’re entering it as an Alford plea.
                    Your Honor, there’s certainly holes in this case.
             Statements that the victim gave doesn’t mention Mr.
             Hampton the first time. Then she goes to the Butterfly
             House, and then Mr. Hampton’s name comes up, and then
             it happens eight or nine times. Then there’s, apparently, a
             friend that she told that to.
                    But there’s also people, when she’s mentioning her
             sexual partners, doesn’t mention Mr. Hampton. The dates
             of offense happened for the course of a month in May of last
             year. It was just reported in February of this year. So
             there’s definitely issues in the case.
                    And I explained to Mr. Hampton that those are
             triable issues and we’d have to cross-examine the witness
             at a trial. And I advised him that [there] would be things
             that would affect her credibility, things that would look
             good for his case in his defense.
                    He has decided to not go that route because of what
             it could mean if the jury believed her. And I understand
             what he’s doing, respect what he’s doing in a way to get out
             and support his family. Young daughter is his first child.
                    But he’s very upset about it, as you can tell. And I
             just wanted to be clear and want the court to make sure
             they’re clear with him that this is what he’s doing, he’s
             doing it and he knows what he’s doing and he has other
             options. And I’ve explained that to him, but I want to make
             sure we’re good there. (emphasis added).

      We conclude that defendant produced uncontradicted evidence that (1)

plaintiff directed him to negotiate a plea bargain; (2) defendant’s investigation of the

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charges against plaintiff was sufficient to apprise defendant of the general strengths

and weaknesses of the State’s evidence; (3) defendant negotiated a plea bargain that

met plaintiff’s expressed requirement that he be released from jail; and (4) the terms

of the plea arrangement were reasonable, given the strength of the State’s case

against plaintiff and plaintiff’s potential exposure to a lengthy prison term.

      This evidence was sufficient to establish that defendant did not breach his duty

to plaintiff, and to shift the burden to plaintiff to produce admissible evidence

demonstrating that he could make at least a prima facie case that defendant breached

his duty of care to plaintiff and that defendant’s negligence proximately caused

damage to plaintiff. “If the movant demonstrates the absence of a genuine issue of

material fact, the burden shifts to the nonmovant to present specific facts which

establish the presence of a genuine factual dispute for trial.” Will of Jones, 362 N.C.

at 573, 669 S.E.2d at 576.

                   B. Failure to Hire an Expert or a Private Investigator

      Plaintiff’s argument that defendant breached his duty to exercise reasonable

care and diligence in representing plaintiff is based upon the following allegations:

             1. Plaintiff alleges generally that defendant was negligent
             in that he failed to “properly investigate” the charges
             against him, and specifically that defendant failed to
             consider hiring an expert or a private investigator.

             2. Plaintiff alleges that defendant was negligent in that he
             may have failed to review the videotape of Tina’s interview
             at Butterfly House and that defendant inaccurately told


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                plaintiff that Tina had named him as one of her sexual
                contacts on the video.

      We first consider plaintiff’s allegation that defendant was negligent by failing

to properly consider whether he should seek funds to hire an expert or private

investigator.     Defendant was appointed by the court to represent plaintiff, who

qualified for appointment of counsel as an indigent criminal defendant. Therefore,

before defendant could retain an expert or private investigator, he would have needed

to seek funding from the Stanly County superior court.

                In order to receive state-funded expert assistance, an
                indigent defendant must make “a particularized showing
                that: (1) he will be deprived of a fair trial without the expert
                assistance, or (2) there is a reasonable likelihood that it
                would materially assist him in the preparation of his case.”
                . . . Furthermore, “the State is not required by law to
                finance a fishing expedition for the defendant in the vain
                hope that 'something' will turn up.” “Mere hope or
                suspicion that such evidence is available will not suffice.”

State v. McNeill, 349 N.C. 634, 650, 509 S.E.2d 415, 424 (1998) (quoting State v.

Parks, 331 N.C. 649, 656, 417 S.E.2d 467, 471 (1992), State v. Alford, 298 N.C. 465,

469, 259 S.E.2d 242, 245 (1979), and State v. Tatum, 291 N.C. 73, 82, 229 S.E.2d 562,

568 (1976)).

      Plaintiff has failed to indicate a proposed area of expertise for the “expert” or

any specific role for the expert as part of negotiating a plea bargain for plaintiff.

Similarly, plaintiff has not articulated a basis for a request to obtain funds from the

Stanly County superior court with which to hire an investigator. Neither plaintiff’s


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evidence at the trial level nor his appellate brief addresses the legal standard for

securing funds for expert or investigative assistance for an indigent criminal

defendant, and plaintiff has not advanced an argument that a hypothetical request

by defendant for funds with which to hire an expert or an investigator would have

met this standard. In the absence of any specific evidentiary or legal goal to be

pursued by the expert or investigator posited by plaintiff, their roles as experts would

appear to be speculative and, as stated in Parks, “the State is not required by law to

finance a fishing expedition for the defendant in the vain hope that ‘something’ will

turn up.” We conclude that plaintiff has failed to offer any evidence, or even a

colorable argument, that plaintiff would have been entitled to funds for the services

of an expert or an investigator, or that defendant was remiss in not attempting to

obtain funds for this purpose.

                    C. Video Recording of Nurse Yow’s Interview of Tina

      The other basis of plaintiff’s claim for legal malpractice is plaintiff’s allegation

that defendant failed to properly review the videotaped interview of Tina or to

accurately convey its contents to plaintiff. For the reasons discussed below, we

conclude that plaintiff is not entitled to relief on the basis of this argument.

      Plaintiff’s legal malpractice action is premised almost entirely upon his

allegation that, although Tina did not name plaintiff as a person with whom she had

previously had sex during her videotaped interview, defendant erroneously told



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plaintiff that he had been identified by Tina on the video. In his appellate brief,

plaintiff supports this contention with a detailed recitation of questions that Nurse

Yow asked Tina and of her answers, in order to establish that during the videotaped

interview Tina named three men with whom she had sex in the past but did not name

plaintiff, even when Nurse Yow asked her if she had anything to add. It was only

after the videotape was turned off and Nurse Huneycutt joined Tina and Nurse Yow,

when Nurse Huneycutt asked Tina if she had anything else to share, that Tina stated

that she had also had sex with plaintiff.

        The record on appeal includes three CDs containing identical depictions of the

videotaped interview between Tina and Nurse Yow. In each of these CDs the

interview ends before Nurse Yow asks Tina to identify the individuals with whom she

has had sexual relations, and the CDs do not include the part of the interview upon

which plaintiff bases most of his arguments. N.C. R. App. P. 9(a) provides in relevant

part:

              In appeals from the trial division of the General Court of
              Justice, review is solely upon the record on appeal, the
              verbatim transcript of proceedings, if one is designated, . .
              . and any [other] items filed with the record on appeal
              pursuant to Rule 9(c) and 9(d). Parties may cite any of
              these items in their briefs and arguments before the
              appellate courts.

“Pursuant to the North Carolina Rules of Appellate Procedure, our review is limited

to the record on appeal . . . and any other items filed with the record in accordance

with Rule 9(c) and 9(d).” Kerr v. Long, 189 N.C. App. 331, 334, 657 S.E.2d 920, 922

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(2008). Our appellate courts “ ‘can judicially know only what appears of record.’ . . .

‘An appellate court cannot assume or speculate that there was prejudicial error when

none appears on the record before it.’ ” State v. Price, 344 N.C. 583, 593-94, 476 S.E.2d

317, 323 (1996) (quoting Jackson v. Housing Authority, 321 N.C. 584, 586, 364 S.E.2d

416, 417 (1988), and State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254, disc.

rev. denied, 315 N.C. 188, 337 S.E.2d 862 (1985)). Because the videotaped interview

that was made a part of the record and was provided to this Court in the form of three

identical CDs does not include the questions and answers discussed by plaintiff on

appeal, we cannot consider these alleged statements in our analysis of the trial court’s

summary judgment order.

      For the reasons discussed above, we conclude that plaintiff failed to establish

that he could offer a prima facie case of legal malpractice based on either defendant’s

alleged failure to properly consider hiring an investigator or expert, or upon

defendant’s alleged failure to accurately inform plaintiff that Tina did not identify

him during the videotaped interview.

                                         D. Damages

      Plaintiff has also failed to identify any damages resulting from defendant’s

alleged negligence in representing him on the criminal charges discussed above. In

his complaint, plaintiff makes a generalized allegation that he “sustained pecuniary

damages, mental anguish and emotional distress and is entitled to recover damages



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                                   Opinion of the Court



in a sum in excess of . . . $10,000.” This is a conclusory assertion without reference

to specific factual evidence; moreover, plaintiff’s complaint is unverified and therefore

was not proper for the trial court’s consideration in ruling on defendant’s motion for

summary judgment. In his affidavit, plaintiff avers that if defendant had informed

him that Tina did not identify him during the videotaped interview, he would have

“continued to reject the plea to indecent liberties with a minor[.]” However, plaintiff

does not identify any damages that he sustained as a result of pleading guilty. We

have carefully reviewed the record and conclude that plaintiff has failed to properly

allege or to support with evidence any basis upon which to conclude that defendant’s

alleged negligence, even if it were proven, caused plaintiff any damage.

      “It is well established that in order to prevail in a negligence action, plaintiffs

must offer evidence of the essential elements of negligence: duty, breach of duty,

proximate cause, and damages.” Camalier v. Jeffries, 340 N.C. 699, 706, 460 S.E.2d

133, 136 (1995) (citation omitted). Because plaintiff failed to offer evidence of the

element of damages, we are unable to evaluate whether defendant’s alleged

malpractice proximately caused damage to plaintiff.

      As discussed above, we have concluded that defendant offered evidence that

his representation of plaintiff met the standard of care for an attorney representing

a criminal defendant who wishes to enter a plea of guilty, and that plaintiff has failed

to produce evidence either that defendant breached the duty he owed to plaintiff or



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                                HAMPTON V. SCALES

                                 Opinion of the Court



that plaintiff suffered any damages. Having reached this conclusion, we do not reach

the other arguments advanced by the parties.

      For the reasons discussed above, we conclude that the trial court did not err by

granting defendant’s motion for summary judgment and that its order should be

      AFFIRMED.

      Chief Judge McGEE and Judge DILLON concur.




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