Miller v. Ferree, 84 N.C. App. 135 (1987)

Jan. 20, 1987 · North Carolina Court of Appeals · No. 8623SC731
84 N.C. App. 135


No. 8623SC731

(Filed 20 January 1987)

Attorneys at Law § 5.1; Rules of Civil Procedure § 8.1— legal malpractice —damages specifically stated — dismissal without prejudice

In an action for legal malpractice where plaintiff violated N.C.G.S. § 1A-1, Rule 8(a)(2) by stating specifically the amount of compensatory and punitive damages sought, the trial court did not abuse its discretion by dismissing without prejudice and taxing the costs to plaintiff, rather than dismissing with prejudice, since the record did not disclose evidence of any other actions by plaintiff which would so aggravate the effect of his violation of the rule as to render it flagrant.

APPEAL by defendants Max F. Ferree, Russell F. Ferree and Ferree, Cunningham and Gray, P.A., from DeRemus, Judge. Order entered 19 May 1986 in Superior Court, WILKES County. Heard in the Court of Appeals 11 December 1986.

In the complaint filed in this action, plaintiff alleged, inter alia, that defendants Max F. Ferree and Russell F. Ferree, who are attorneys and at all times relevant were members of defendant professional association or its predecessor, committed various acts of legal malpractice, some of which were intentional and others of which were negligent, in connection with their representation of plaintiff in certain real estate transactions. In the ad damnum clause of the complaint, plaintiff sought compensatory damages of $53,500.00 from these defendants and punitive damages of $500,000.00. In addition, plaintiff sought various equitable relief against all defendants and sought compensatory damages for breach of contract from defendants Landon.

In their answers, defendants Max F. Ferree, Russell F. Fer-ree and Ferree, Cunningham and Gray, P.A., included motions to dismiss the action pursuant to G.S. 1A-1, Rule 41(b) for plaintiff s failure to comply with G.S. 1A-1, Rule 8(a)(2), which provides that “in all professional malpractice actions . . . wherein the matter in controversy exceeds . . . ten thousand dollars . . . the pleading shall not state the demand for monetary relief, but shall state *136that the relief demanded is ... in excess of ten thousand dollars

After hearing the motions, the trial court concluded that plaintiff had violated Rule 8(a)(2) and ordered, as sanctions for the violation, that plaintiffs action against defendants Max F. Ferree, Russell F. Ferree and Ferree, Cunningham and Gray, P.A., be dismissed without prejudice. The court further ordered that upon payment of all costs of the action the plaintiff would be permitted to institute a similar action against those defendants within one year. Defendants appealed.

Flanary & Davies, by Kenneth T. Davies, for plaintiff ap-pellee.

Moore, Willardson & Lipscomb, by Larry S. Moore, for defendant appellants Max F. Ferree and Russell F. Ferree.

E. James Moore for defendant appellant Ferree, Cunningham and Gray, P.A.

MARTIN, Judge.

We note initially that defendants’ appeal is properly before us. “[A] judgment by a court determining its statutory authority to dismiss an action in such a way as not to bar further litigation on the merits therein may be questioned only by appeal . . . .” Gower v. Insurance Co., 281 N.C. 577, 580, 189 S.E. 2d 165, 168 (1972).

The appealing defendants contend that the trial court, upon finding plaintiff in violation of G.S. 1A-1, Rule 8(a)(2), should have dismissed his action against them with prejudice, and that its order dismissing the suit without prejudice and permitting the plaintiff to institute a similar action against them within one year should be reversed. We affirm.

It is clear that a dismissal with prejudice, pursuant to Rule 41(b), is an available sanction for a plaintiffs violation of Rule 8(a)(2). Harris v. Maready, 311 N.C. 536, 319 S.E. 2d 912 (1984). It is not, however, the only available sanction and should be applied “only when the trial court determines that less drastic sanctions will not suffice.” Id. at 551, 319 S.E. 2d at 922. The determination of whether to dismiss for violation of the rule, and whether such a *137dismissal should be with prejudice so as to bar a subsequent action, involves the exercise of judicial discretion.

The trial court found that “sanctions less than a dismissal without prejudice are inappropriate in this action.” This finding indicates that the court considered the various sanctions available and determined that a dismissal without prejudice, taxing plaintiff for the costs of the action up to the time of dismissal, was a sufficiently severe sanction. Appellate courts should not disturb the trial court’s exercise of discretion unless the challenged action is “manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E. 2d 58, 63 (1980).

In Schell v. Coleman, 65 N.C. App. 91, 308 S.E. 2d 662 (1983), disc. rev. denied, appeal dismissed, 311 N.C. 763, 321 S.E. 2d 145 (1984), plaintiffs complaint prayed for damages for legal malpractice of $1,950,000.00. In addition, plaintiff aggravated the Rule 8(a)(2) violation by causing adverse radio and newspaper publicity, informing the N.C. Department of Insurance about the lawsuit, and causing the defendant to be served in open court. Under those circumstances, this court held that plaintiffs violation of Rule 8(a)(2) was so flagrant that the trial court’s refusal to dismiss his suit amounted to an abuse of discretion.

The factors which aggravated the Rule 8(a)(2) violation in Schell are not present in this case. Although it appears from the exhibits filed in this Court that at least three newspaper articles have appeared in The Journal-Patriot of North Wilkesboro and The Elkin Tribune concerning the lawsuit, none of the articles or the headlines associated with them were of such a nature as to sensationalize the amount of damages claimed by plaintiff. Indeed, the main thrust of the articles involved the factual allegations and denials of the parties rather than the amount of damages sought. Had plaintiff complied with Rule 8(a)(2) the content of the articles would not have been appreciably different. The record does not disclose evidence of any other actions by plaintiff which would so aggravate the effect of his violation of the rule as to render it flagrant. We consequently decline to hold that the trial court’s decision to dismiss this action without prejudice, rather than with prejudice, was “manifestly unsupported by reason” so as to constitute an abuse of discretion.


Judges Wells and Parker concur.