215 N.C. App. 357
N.C. Ct. App.2011Background
- Plaintiffs hired defendant Weatherspoon to review CVS lease agreements for properties (Marion, Georgetown, Myrtle Ridge) constructed and leased to CVS.
- Leases included a new tax provision (Section 34(d)) shifting tax increases from tenants to landlords after a sale or related event.
- South Carolina law changed in 2006 affecting property tax assessments on sale, effective 1 January 2007.
- Sale of the Marion/Georgetown properties fell through after discovery of the Section 34(d) provision.
- Plaintiffs sued for legal malpractice; trial court granted summary judgment for defendant; on appeal, issues include contributory negligence, affidavits, and breach of contract claims.
- Court affirms trial court’s grant of summary judgment and dismissal of all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contributory negligence defeats plaintiffs' malpractice claims. | Weatherspoon defense; plaintiffs relied on attorney but failed to read leases. | Plaintiffs had duty to read; emails urged review; no special circumstance. | Yes; contributory negligence defeats claims. |
| Whether special circumstances exempt plaintiffs from reading contracts. | Custom and practice to rely on attorney absolves reading duty. | No valid special circumstance proven; emails show duty to read. | No; special circumstances not proven. |
| Whether affidavits conflicting with depositions were properly excluded. | Affidavits support reliance on alleged custom. | Affidavits contradicted depositions; properly excluded. | Yes; affidavits properly excluded. |
| Whether breach of contract claim survives without supporting authority. | There was a contract to notify of changes in new leases. | No evidence of such contract; affidavits excluded; lacking authority. | No; breach of contract claim fails. |
| Whether Manteo Partners and Kill Devil Hills Associates have viable extra claims. | Damages from following attorney's advice. | No proof of negligence; damages insufficient. | Yes; claims dismissed. |
Key Cases Cited
- Davis v. Davis, 256 N.C. 468, 124 S.E.2d 130 (N.C. 1962) (duty to read contracts; reading required if reasonable prudent)
- Lowry v. Lowry, 99 N.C.App. 246, 393 S.E.2d 141 (N.C. Ct. App. 1990) (attorney's duty does not relieve client’s duty to read)
- Harris v. Bingham, 246 N.C. 77, 97 S.E.2d 453 (N.C. 1957) (reliance on others yields to client vigilance)
- Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C.App. 1, 249 S.E.2d 727 (N.C. Ct. App. 1978) (summary judgment screening for sham factual issues)
- Piraino Bros., LLC v. Atl. Fin. Group, Inc., 712 S.E.2d 328 (N.C. Ct. App. 2011) (contributory negligence defense to professional negligence)