WILES v. GROSSMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN LEE WILES, )

Plaintiff, )

)

v. )

)

) 1:21CV84

)

BLACK & BOONE, P.A. (£/k/a BLACK )

AND GROSSMAN, P.A.) and STEVEN )

A. GROSSMAN, jointly and individually, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon Plaintiff John Lee Wiles’ Amended Motion for

Summary Judgment, or zm the alternative, Partial Summary Judgment (Docket Entry 64), and

Defendants Black & Boone, P.A. and Steven A. Grossman’s Motion for Summary Judgment

(Docket Entry 60.) Also before the Court is PlaintifPs Verified Motion to Extend Time to

File Plaintiffs Amended Motion for Summary Judgment, Brief in Support of Amended

Motion for Summary Judgment, and Response in Opposition to Defendants’ Motion for

Summary Judgment. (Docket Entry 70.) All matters have been fully briefed and are ripe for

disposition. For the reasons stated herein, the Court will deny Plaintiffs Amended Motion

for Summary Judgment, and grant in part and deny in part Defendants’ Motion for Summary

Judgment. Further, PlaintifPs Motion to Extend Time will be granted.!

I, PROCEDURAL BACKGROUND

Plaintiff initiated this action in the United States Bankruptcy Court for the Eastern

District of North Carolina on September 22, 2020. (See Complaint (“Compl.”), Docket Entry

1.) On January 28, 2021, the parties agreed to transfer the case to the Middle District of North

Carolina. (Docket Entry 18 at 2-5.) On April 1, 2021, Defendants filed a motion for judgment

on the pleadings. (Docket Entry 22.) Thereafter, on April 13, 2021, Plaintiff filed a motion

to amend the Complaint (Docket Entry 24), which was granted in patt and denied in part, and

as such Defendants’ motion for judgment on the pleadings was denied as moot (Docket Entry

47). Plaintiff is a former client of Defendant Steven A. Grossman (“Grossman”), who

pteviously engaged in the practice of law as a licensed attorney at Defendant Black & Boone,

P.A. (Defendant Law Firm”), and Plaintiff brings claims of legal malpractice against

Defendants, fraud as to Defendant Grossman, and respondeat superior as to Defendant Law

Firm. (See Am. Compl.; Docket Entry 48.) For relief, Plaintiff seeks, zzter aka, damages in

excess of $75,000, and punitive damages in excess of $75,000 from Defendant Grossman. (Id.

at 12.)? Defendants then filed an answer. (Docket Entry 52.)

After the close of discovery, Defendants filed a motion for summaty judgment and

supporting brief regarding all of Plaintiffs claims on August 1, 2022. (Docket Entries 60, 61.)

‘By consent of the patties, this matter has been referred to the undersigned pursuant to 28

U.S.C. § 636(c), to conduct all proceedings including a jury or nonjury trial, to order the entry of

judgment, and to conduct all post-judgment proceedings therein. (See Docket Entry 37,

*All citations in this Order to documents filed with the Court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear in CM/ECF.

Plaintiff filed a response in opposition to Defendants’ motion. (Docket Entry 66.) Plaintiff

also filed an amended motion for summary judgment, or z# the alternative, partial summaty

judgement and supporting brief on August 12, 2022. (Docket Entries 64, 65.) Defendants filed

a tesponse in opposition. (Docket Entry 68.) Then on September 26, 2022, Plaintiff filed a

Verified Motion to Extend Time to File Plaintiffs Amended Motion for Summary Judgment,

Brief in Support of Amended Motion for Summary Judgment, and Response in Opposition

to Defendants’ Motion for Summary Judgment (Docket Entry 70), which Defendants oppose

(Docket Entries 68, 69, 72).

II. FACTUAL BACKGROUND

On September 19, 2009, Plaintiff was involved in a physical altercation with a man

named Tony Ray Simmons, Jr., wherein Plaintiff shot Simmons with a pistol. (Am. Compl.

{| 24; Answer {J 131, 134.) Following this altercation, on September 17, 2012, Simmons hired

Lucas Baker (“Simmons’s Counsel’) and filed a complaint against Plaintiff for Common Law

Battery. (Am. Compl. {ff 22, 26-27.) Plaintiff subsequently hited Defendants to represent him

in defending against Simmons’s complaint and asserted an affirmative defense of self-defense

and defense of another in response. (Am. Compl. ¥] 28-29; Answer ff] 28-29, 135.)

On November 26, 2014, Stmmons’s Counsel, under N.C. Gen. Stat. § 1A-1, Rule 41,

filed a Notice of Voluntary Dismissal without prejudice, and subsequently refiled the

complaint in 2015 against Plaintiff regarding the same September 2009 incident. (Am. Compl.

30-31; Docket Entry 51-1 at 2-3; Docket Entry 51-2 at 2-5; Answer {[] 136-37.) The 2015

complaint was set for trial on January 17, 2017, after several continuances. (Am. Compl. □□□

33-34.) On January 10, 2017, Simmons’s Counsel emailed Defendant Grossman that he would

be sending jury instructions for the “punitive phase charge ... separately.” (Am. Compl. { 58;

Docket Entry 51-5 at 2.) Defendant Grossman replied to Simmons’s Counsel’s email that he

thought Simmons had agreed to dismiss the punitive damages claim to which Simmons’s

Counsel answered that this was never agreed to as he only said he would think about it. (Am.

Compl. □□ 59-60; Docket Entry 51-6 at 2; Docket Entry 51-7 at 2.) Simmons’s Counsel then

sent Defendant Grossman the juty instructions for the punitive damages claim. (Am. Compl.

4 61; Docket Entry 51-8 at 2-10.)

On January 17, 2017, between 10:13 a.m. and 10:15 am., Defendant Grossman and

Simmons’s Counsel had a short discussion with the presiding Superior Court Judge, where

they told the Judge that they had a few matters to discuss at the pretrial conference at 11:00

a.m. (Am. Compl. 35-37; Docket Entry 51-3 at 5-6.) Subsequently that day, at 12:05 p.m.,

Simmons’s Counsel and Defendant Grossman filed a Consent Order of Dismissal without

prejudice, as such the 2015 case was dismissed, and Simmons was granted leave to re-file a

complaint against Plaintiff within ninety days. (Am. Compl. {| 36-39; Docket Entry 51-4 at

1-2; Answer { 144.)

On April 13, 2017, Simmons filed his third complaint against Plaintiff regarding the

September 2009 altercation but this complaint contained a different set of facts about the

events leading up to the shooting than the previous two complaints. (Am. Compl. {J 67, 69;

Docket Entry 51-10 at 2-5.) Simmons’s Counsel contended that the fact patterns drafted in

the 2012 and 2015 complaints were erroneous and that Simmons had not reviewed them prior

to filing. (Am. Compl. J 74.) Defendant Grossman agreed not to cross examine Simmons

regarding the factual differences between the previous complaints and the 2017 complaint as

doing so would require Simmons’s Counsel to withdraw in order to testify that Simmons never

tead the prior complaints. (Am. Compl. {J 75, 77; Docket Entry 51-11 at 2-5.) Trial for the

2017 complaint was set for December 17, 2018. (Answer {| 146.)

Leading up to the December 2018 trial, Defendant Grossman was running for judicial

office in Cabarrus County and was elected as District Court Judge in November 2018. (Am.

Compl. {J 94, 96.) During the December 2018 trial, Defendant Grossman did not bifurcate

the trial between the liability and damages phases. (Id. 4 98.) On December 18, 2018, the jury

awatded Simmons $1,000,000 in compensatory damages and $2,000,000 in punitive damages.

(id. 490.) After trial, the verdict and judgment were affirmed by the North Carolina Court of

Appeals. (Answer §[ 149.)

Il. DISCUSSION

A. Plaintiffs Motion to Extend Time

Plaintiff has filed a Verified Motion to Extend Time to File Plaintiffs Amended Motion

fot Summaty Judgment, Brief in Support of Amended Motion for Summary Judgment, and

Response in Opposition to Defendants’ Motion for Summary Judgment requesting the Court

to extend the time to allow Plaintiffs filings to be considered timely on the basis of excusable

neglect. (Docket Entry 70.) Defendants oppose the Motion. (Docket Entries 68, 69, 72.)

By way of background, on August 4, 2022, the Court entered a Text Order granting

Plaintiff until August 11, 2022, to file a summary judgment motion. (Text Order dated

8/4/2022.) Plaintiff did not file his amended summary judgment motion and supporting brief

until August 12, 2022, at 1:55 a.m. and 2:01 a.m. respectively. (Docket Entries 64, 65.)

However, Plaintiffs counsel explains that the amended summaty judgment motion and

supporting brief were filed in the early morning hours of August 12, 2022, due to exhibits

missing from the initial summary judgment motion as they were accidentally deleted, being

down one attorney and one patalegal since June 13, 2022, and having a busy schedule that

week. (Docket Entry 70 at 2-3.)

Additionally, on August 1, 2022, Defendants filed their summary judgment motion and

supporting brief. (Docket Entries 60, 61.) Plaintiffs response in opposition to Defendants’

summaty judgment motion was due August 31, 2022. Plaintiff's counsel did not file the

response until September 1, 2022, at 12:46 a.m. (Docket Entry 66.) Plaintiffs counsel explains

that this forty-six minute delay was also due to the staffing shortage and having many

obligations. (Docket Entry 70 at 4.) Defendants oppose Plaintiff's Motion contending, inter

ala, that holding Plaintiff accountable to the Court’s orders is particularly warranted in light

of his repeated violations. (Docket Entries 68 at 4-6, 69 at 2 n.1.)

Local Rule 7.3(k) provides that the “failure to file a brief or response within the time

specified in this rule shall constitute a waiver of the right thereafter to file such brief or

response, except upon a showing of excusable neglect.” See also Fed. R. Civ. P. 6(b)(1)(B)

(“When an act may or must be done within a specified time, the court may, for good cause,

extend the time... on motion made after the time has expited if the party failed to act because

of excusable neglect.”). Here, Plaintiff did not request an extension of time until 45 days after

his late amended motion for summary sudgment was filed and 25 days after his late response

in opposition to Defendants’ summary judgment motion. (Docket Entries 64, 65, 66, 70.)

Thus, under Federal Rule of Civil Procedure 6(b) and Local Rule 7.3(4), Plaintiff has waived

his right to move for summary judgment and to respond to Defendants’ summary judgment

motion unless he can establish “excusable neglect.”

“TT |he Supreme Court held that the determination of excusable neglect 1s an equitable

one, based on consideration of ‘the danger of prejudice to the [non-movant], the length of the

delay and its potential impact on judicial proceedings, the reason for the delay, including

whether it was within the reasonable conttol of the movant, and whether the movant acted in

good faith.” Daye v. Potter, 380 F.Supp.2d 718, 720-21 (M.D.N.C. 2005) (quoting Péoneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

Here, the Court concludes that Plaintiff has established excusable neglect for the

untimely filing of his amended motion for summaty judgment, supporting brief, and response

in opposition to Defendants’ summary judgment motion. Specifically, any prejudice to

Defendants is minimal, as the only potential prejudice to Defendants by the Court granting

Plaintiffs Motion to Extend is that Plaintiffs motion for summary judgment will be

considered and Defendants’ motion for summary judgment will be opposed, which is not

“unfair prejudice.” See Garcia v. Navasota Indep. Sch. Dist., No. H-09-3892, 2010 WL 5139438

at *1 (S.D. Tex. Dec. 2, 2010) (unpublished) (noting that “[t]he fact that a substantive summary

judgment motion is opposed is not unfair prejudice to Defendants”). Moreover, to allow

Defendants’ motion for summaty judgment to go uncontested would prevent a fair and

complete opportunity for the claims and defenses of the parties to be fully adjudicated. See

Savage v. City of Twin Falls, No. 1:13-cv-00179, 2015 WL 12681319, at *12 (D. Idaho Jan. 20,

2015) (unpublished) (recognizing that “among the purposes of Rule[] 6... is the goal of a fair

and complete opportunity for the claims and defenses of the parties to be fully adjudicated,

even while imposing order upon the progress of a particular lawsuit’).

Furthermore, as to the other excusable neglect factors, Plaintiffs filings were only

minutes to houts late, such that it had no substantive impact on judicial proceedings, and

Plaintiff acted in good faith by trying to timely file the documents during the early hours of

the morning. See Revak v. Miller, No.7:18-CV-206-FL, 2021 WL 2188674 at *2-3 (E.D.N.C.

May 28, 2021) (unpublished) (concluding that weighing the foregoing considerations,

defendants demonstrated excusable neglect, as any prejudice to plaintiff was minimal, since

the delay lasted only four hours and occurred during the eatly hours of the morning outside

of regular business hours, and counsel demonstrated good faith by continuing his attempts to

file the documents into the early hours of the morning).

Therefore, for good cause shown, Plaintiffs Motion to Extend is granted, and

Plaintiffs amended motion for summary judgment, supporting brief, and response in

opposition to Defendants’ motion for summary judgment will be considered.

B. Summary Judgment Standard

Both parties have moved for summary judgment in this matter. (Docket Entries 60,

64.) Summary judgment is appropriate when there exists no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick □□

Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summaty judgment

beats the initial burden of coming forward and demonstrating the absence of a genuine issue

of material fact. Temkin v. Frederick Cnty. Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing

Celotex v. Catrett, A77 U.S. 317, 322 (1986)). Once the moving party has met its burden, the

non-moving patty must then affirmatively demonstrate that there is a genuine issue of material

fact which requires trial. Matsushita Elec. Indus. Co. Lid. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). Thete is no issue for trial unless there is sufficient evidence favoring the non-moving

patty fot a fact finder to return a verdict for that patty. Anderson v. Liberty Lobby, Inc, 477 US.

242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cnty. 48 F.3d 810, 817 (4th Cir. 1995). Thus, the

moving patty can bear his burden either by presenting affirmative evidence ot by

demonstrating that the non-moving patty’s evidence is insufficient to establish his claim.

Celotex, 477 U.S. at 331 (Brennan, J., dissenting).

When making the summary judgment determination, the Court must view the evidence,

and all justifiable inferences from the evidence, in the light most favorable to the non-moving

patty. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 4th Cir.

1997). However, the patty opposing summary judgment may not rest on mere allegations ot

denials, and the coutt need not consider “unsupported assertions” or “self-serving opinions

without objective corroboration.” Evans v. Techs. Applications C Serv. Co., 80 F.3d 954, 962 (4th

Cir. 1996); see also Anderson, 477 U.S. at 248-49. Moreover, “[clredibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are juty

functions, not those of a judge, whether he is ruling on a motion for summary judgment.”

Anderson, 477 US. at 255. “When faced with cross-motions for summary judgment, the court

must teview each motion separately on its own merits ‘to determine whether either of the

patties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

Cir. 2003) (citation omitted).

C. Defendants’ Motion for Summary Judgment

Defendants contend that they are entitled to summary judgment on Plaintiffs claims

for legal malpractice, fraud, and respondeat superior. (Docket Entties 60, 61.) Specifically,

Defendants contend that: (1) Plaintiff is precluded from telitigating two issues previously

decided by North Carolina state courts; (2) judgmental immunity bars Plaintiffs remaining

theories for liability; (3) Plaintiffs claims also fail because he has no evidence to support

proximate cause; and (4) Plaintiff cannot recover punitive damages either as an element of

compensatory damages of independently. ([d.)

i. Collateral Estoppel or Issue Preclusion

“A federal court sitting in diversity jurisdiction must apply the res judicata or collateral

estoppel law of the state from which the original judgment issued.” Sanders v. Novant Health,

No. 0:20-01287, 2021 WL 1140222, at *2 (D.S.C. Mar. 25, 2021) (unpublished); In re

MeNallen, 62 F.3d 619, 624 (4th Cir. 1995) (“In determining the preclusive effect of a state-

court judgment, the federal courts must, as a matter of full faith and credit, apply the forum

state’s law of collateral estoppel.”). Here, as this is a diversity jurisdiction case, where the

original judgments were issued by North Carolina state courts, North Carolina’s collateral

estoppel law applies. In North Carolina, collateral estoppel or issue preclusion requites:

(1) a prior suit resulting in a final judgment on the merits; (2) identical issues

involved; (3) the issue was actually litigated in the prior suit and necessary to the

judgment; and (4) the issue was actually determined.

McDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211 (2002). For issues to be

considered “identical” to ones actually “litigated and necessary” to a previous judgment North

Carolina courts have set forth the following analysis:

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(1) the issues [are] the same as those involved in the prior action, (2) the issues

... have been raised and actually litigated in the prior action, (3) the issues [were]

material and relevant to the disposition of the prior action, and (4) the

determination of the issues in the prior action [was] necessary and essential to

the resulting judgment.

Sykes v. Blue Cross C» Blue Shield of N.C., 372. N.C. 318, 325, 828 S.E.2d 489, 494 (2019) (citations

omitted); see also McE/baney v. Orsbon C Fenninger, LLP, 278 N.C. App. 214, 223-24, 862 S.E.2d

391, 399 (2021). As such, the doctrine of collateral estoppel or issue preclusion precludes

relitigation of a fact, question or right in issue. State v. Summers, 351 N.C. 620, 622, 528 S.E.2d

17, 20 (2000). Further, “collateral estoppel precludes the subsequent adjudication of a

previously determined issue, even if the subsequent action is based on an entirely different

claim.” Whitacre P’ship v. Biosignia, Inc, 358 N.C. 1, 15, 591 S.B.2d 870, 880 (2004). Moreover,

North Carolina permits defendants to assert collateral estoppel as a defense against a party

who has previously had a full and fair opportunity to litigate a matter and now seeks to reopen

identical issues with a new adversary. Thomas M. McInnis ¢ Assoes., Inc. v. Hall, 318 N.C. 421,

434-35, 349 S.E.2d 552, 560 (1986); see also Sartin v. Macik, 535 F.3d 284, 288 (4th Cir. 2008)

(stating that North Carolina courts have abandoned the tequitement of “mutuality of

estoppel” for the defensive use of collateral estoppel).

Also, “[a]n issue is actually litigated, for purposes of collateral estoppel or issue

preclusion, if it is properly raised in the pleadings or otherwise submitted for determination

and [is] in fact determined.” Wilhams v. Peabody, 217 N.C. App. 1, 6, 719 S.E.2d 88, 93 (2011)

(citation omitted). “A very close examination of matters actually litigated must be made in

otder to determine if the underlying issues are in fact identicalf;] [i]f they are not identical, then

the doctrine of collateral estoppel does not apply.” Id. (citation omitted). “The burden is on

11

the party asserting issue preclusion to show “with clarity and certainty what was determined by

the prior judgment.” Miller Bldg. Corp v. NBBJ N.C., Inc. 129 N.C. App. 97, 100, 497 S.E.2d

433, 435 (1998).

Here, the evidence shows that on January 11, 2021, Plaintiff moved pursuant to N.C.

Gen. Stat. § 1A-1, Rule 60(b)(4) and (6) for the North Carolina trial court to enter an order

relieving him of the final judgment entered against him by the December 2018 verdict. (See

Docket Entry 60-4.) In support of his motion, Plaintiff contended that without his knowledge

ot consent Defendant Grossman entered into an agreement on January 17, 2017, with

Simmons’s Counsel to dismiss Simmons’s second complaint without prejudice (“2017

Consent Order”). (ad) Plaintiff also asserted that prior to the 2018 trial, without his

knowledge or consent, Defendant Grossman entered into a pretrial agreement with Simmons’s

counsel stipulating that the pleadings in the 2012 and 2015 cases would be “inadmissible for

any purpose and shall not be read to the jury.” (id) Plaintiff also included an affidavit

teiterating his arguments that Defendant Grossman did not “secure” his authorization of

informed consent to enter into the 2017 Consent Order, and that without his consent

Defendant Grossman entered into a pretrial agreement in which the prior two pleadings would

be inadmissible. (See Docket Entry 60-5.)

On February 25, 2021, the North Carolina trial court denied Plaintiffs motion. (See

Docket Entry 60-6.) Specifically, the Court found as “findings of fact” that Plaintiffs

arguments in his motion essentially were that Defendant Grossman had not obtained

Plaintiffs informed consent to enter into the 2017 Consent Order and that Defendant

Grossman had not obtained PlaintifPs informed consent to enter into the 2018 pretrial

12

stipulations. (Id. at 5.) The trial court also found that Defendant “Grossman, aggressively

litigated on [Plaintiff's] behalf.” Ud.) Further, the trial court found that:

The patties’ stipulations set forth in the “Consent Order on Final Pre-T'rial

Conference” filed 17 December 2018 reflect that counsel of tecord considered

many matters and wete able to find mutual ground to ensure that the attorneys

could try the case effectively on the merits in the least amount of time possible

and with due tegatd to the convenience of witnesses. There is nothing so

irregular about the parties’ stipulations appearing on the face of the document

which would amount to a procedural blunder. To the conttaty, the face of the

document reflects the standard of professionalism to which attorneys should

adhete in expediting trials to the greatest extent possible.

Ud.) The trial court then concluded that Plaintiff “ha[d] failed to meet his burden to rebut the

presumption that... Grossman had the authority to consent” to the 2017 Consent Order on

Plaintiff's behalf. Ud. at 7.) Additionally, the trial court stated that “[e]ven if the court were

to be persuaded (which it is not) that there was a lack of consent of [Plaintiff] to entry of the

[2017 Consent Order] . . ., the remedy would be to set aside the consent ordet as a whole, the

result of which would be to revive the [2015] action. Doing so would raise an odd situation .

...? Cd. at 8.) Moreover, the trial court concluded that “given a thorough review of all the

information before the Coutt, taken together with arguments from Counsel and extensive case

law presented by the same, the Coutt finds that the Defendant in this case is unable to satisfy

any of the three requirements for relief under Rule 60(b)(6).” Cd. at 9.)

Plaintiff then appealed the trial court’s decision, which was affirmed by the North

Carolina Court of Appeals. See Simmons v. Wiles, 2022-NCCOA-364, 872 S.E.2d 183 (N.C.

App. May 17, 2022). Specifically, the North Carolina Court of Appeals presumed that an

attorney is authorized to act for his client when entering into a consent order on the client’s

behalf and that one challenging the attorney’s actions as being unauthorized has the burden

13

of rebutting the presumption, and Plaintiff failed to rebut that presumption. Id. at J 19. The

North Carolina Court of Appeals further stated that the trial court had considered evidence,

including Plaintiffs affidavit, and concluded that it did not demonstrate Defendant Grossman

lacked authotity to enter into the 2017 Consent Order on Plaintiffs behalf, and as such could

not hold the “trial court’s determination was a result of an unreasoned decision.” Id. at □□

20, 21. The North Carolina Court of Appeals also agreed that Plaintiff did not satisfy the

three-part test to justify relief under Rule 60(b)(6) and noted that the trial court’s finding

regarding the 2018 pretrial stipulations reflected that counsel of record had considered many

mattets and that there was nothing so irregular about the parties’ stipulations. Id. at 27, 29.

Additionally, the North Carolina Court of Appeals concluded that it could not “disturb” the

trial court’s findings “[b]ecause competent evidence in the record support[ed] the trial court’s

findings that [Defendant Grossman] committed no procedural blunder and instead conformed

to professional standards of practice, and that [Plaintiffs] liability was proven by ‘strong, clear

and convincing evidence.” Id. at □□ 29.

Having considered the evidence presented, the Court concludes that thete is no

genuine issue of material fact as to whether Plaintiff is precluded from trelitigating that

Defendant Grossman improperly entered into the 2017 Consent Order and improperly

stipulated to not using the prior complaints without Plaintiffs consent. Specifically, in this

action, Plaintiff alleges that Defendant Grossman failed to obtain his consent to enter into the

2017 Consent Order, and that without his consent, Defendant Grossman agreed not to cross-

examine Simmons regarding the factual differences in Stmmons’s three complaints. (Am.

Compl. at 4-8.)

14

However, as discussed above North Carolina coutts have already issued final

judgments on the merits of his Rule 60 motion and determined that Plaintiff failed to rebut

the presumption that Defendant Grossman had the authority to enter the 2017 Consent

Order, and that the 2018 pretrial stipulations pertaining to the inadmissibility of the 2012 and

2015 pleadings were not “itregular” and reflect the standard of professionalism to which

attorneys should adhere to in expediting trials to the greatest extent possible. Furthermore,

the determination of those two issues was relevant, necessary, and essential to the dental of

his Rule 60 motion, because North Carolina courts concluded that the 2017 Consent Order

was valid and did not bar the third action that went to trial in 2018. See Simmons, 2022-

NCCOA-364, 872 S.E.2d at 183. Also, competent evidence supported the finding that

Plaintiffs counsel committed no procedural blunder regarding the stipulation in connection

with the prior two complaints, such that there was no justification to set aside the 2018

judgment. See id. at [JJ 27, 29. Even though Plaintiff in this action alleges claims for legal

malpractice and fraud, the Court concludes that the issues pertaining to Defendant Grossman

impropetly entering into the 2017 Consent Order and improperly stipulating to not using the

ptior complaints without Plaintiffs consent are collaterally estopped from being asserted in

this action, as Plaintiff seeks to relitigate the same issues Plaintiff raised in his North Carolina

Rule 60 motion that North Carolina courts have already made a determination. See Harmon v.

Hunt, No. COA11-1395, 2012 WL 2308313, at *2-3 (N.C. App. June 19, 2012) (unpublished)

(affirming the trial court’s dismissal of the action because an indispensable issue of plaintiffs

legal negligence complaint was raised and resolved in prior decision; specifically, in the prior

action, the court affirmed the validity of the settlement and concluded that defendants acted

15

with plaintiffs authority when they negotiated the settlement, and plaintiff's allegations in the

instant case sought to relitigate the issue of whether defendants acted without her authority in

reaching the settlement).

ii. Legal Malpractice

First, since the Court has already determined that the issues pertaining to Defendant

Grossman improperly entering into the 2017 Consent Order and improperly stipulating to not

using the prior complaints are collaterally estopped from being asserted in this action, the

Court will not address those issues further. However, Defendants argue that Plaintiffs

additional basis for Defendants committing legal malpractice, te., failing to adequately prepare

for and bifurcate the punitive damages phase of trial and not conducting mote discovery, ate

matters that amount to tactical decisions which “fall squarely within the judgmental-immunity

doctrine.” (Docket Entry 61 at 15.) Plaintiff argues that the evidence of “when, how, and

why” Defendant Grossman made those decisions reveals that judgmental immunity does not

apply, and that Defendant Grossman failing to obtain Plaintiffs informed consent to not

bifurcate the trial, and failing to perform additional “substantive” discovery in the 2017 case,

not inspecting the truck or trailer to investigate Simmons’s assertions of a broken chain,

*The Court notes that the preclusive judgments issued by North Carolina courts were decided

during the pendency of the instant action. (Docket Entry 60-6; Simmons, 2022-NCCOA-364, 872

S.E.2d at 183. However, neither party argues that this impacts the preclusive effect of the North

Carolina judgments (see Docket Entries 61, 66, 67, 69), and the Court does not conclude otherwise, see

MaxtLinear, Inc. vy. CPF CRESPE LLC, 880 F.3d 1373, 1376 (Fed. Cir. 2018) (“assue preclusion applies

even though the precluding judgment .. . comes into existence while the case as to which preclusion

is sought .. . is on appeal.”) (citations omitted); NetSoc, LLC v. Chegg Inc., No. 18CV10262, No.

18CV12215, No. 18CV12267, 2020 WL 174305, at *1 (S.D.N.Y. Jan. 13, 2020) (unpublished) (“[T]he

Federal Circuit has ‘established that issue preclusion applies even though the precluding judgment . .

. comes into existence’ after the initiation of ‘the case as to which preclusion is sought.”’) (citation

omitted).

16

failing to depose the doctors with sufficient time prior to trial, and allowing Simmons’s counsel

to use the doctors’ depositions in lieu of live testimony, is not protected by judgmental

immunity. (Docket Entry 66 at 6-12.)4

In North Carolina, a legal 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 that:

(1) the attorney breached the duties owed to his client, as set forth by Hodges v. Carter, 239 N.C.

517, 519-20, 80 S.B.2d 144, 145-46 (1954), 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).

Further, in analyzing the first prong of a legal malpractice action North Carolina courts have

stated as follows:

Ordinarily when an attorney engages in the practice of the law and contracts to

prosecute an action [o]n 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 sudgment 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.

An attorney who acts in good faith and in an honest belief that his advice and

acts are well founded and in the best interest of his client is not answerable for

a mete etror of judgment....

Conversely, he is answerable in damages for any loss to his client which

proximately results . . . from the failure to exercise in good faith his best

judgment in attending to the litigation committed to his cate.

‘Plaintiff also argued that Defendant Grossman failed to depose Simmons on his “new version

of events in the 2017 complaint” (Docket Entry 66 at 9), however, the Court has already concluded

that Plaintiffs issue of Defendants improperly stipulating to not using the prior complaints without

Plaintiff's consent is collaterally estopped from being asserted in this action. While Plaintiff attempts

to restate the issue differently, it is essentially the same issue as it relates to the prior complaints alleging

different facts and Defendants failure to inquire about that; as such, it is precluded.

17

Hodges, 239 N.C. at 519-20, 80 S.E.2d at 145-46; see also Quality Inns Int'l Inc. v. Booth, Fish,

Stimpson, Harrison ¢ Hall, 58 N.C. App. 1, 11-14, 292 $.B.2d 755, 761-63 (1982) (stating that

the test of lawyer liability was set out in Hodges and reiterating that an attorney who acts in

good faith and in an honest belief that his advice and acts are well founded and in the best

interest of his client is not answerable for a mere error of judgment). Additionally, the third

ptong of Hodges requires an attorney to represent the 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. Rorrer, 313 N.C. at 356, 329 S.E.2d at 366.

“The standard is that of membets of the profession in the same or similar locality under similar

circumstances.” Id.

Furthermore, “[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.” Id. at 357, 329 S.E.2d at 367. “The

law is not an exact science but is, rather, a profession which involves the exercise of individual

judgment. Differences in opinion are consistent with the exercise of due care.” Id. Also,

“[g]ood faith is an objective, not subjective standard.” Id. at 358, 29 S.E.2d at 368. “Absent

any evidence of a standard of cate with which [Defendant] failed to comply and absent a

showing that [Defendant] failed to exercise his best, informed judgment, he is immune from

any allegedly erroneous judgmental decisions made during the preparation and trial of

[Plaintiffs] lawsuit.” Id. Therefore, “[w]hen pursuing an action for legal malpractice, ‘plaintiffs

are tequited to show that defendants .. . failed to live up to the standard of care of membets

of the legal profession in their legal community or in a similar locality under similar

18

circumstances.” Maller v, Orcutt, No. COA11-1128, 2012 WL 1995192, at *4 (N.C. App. June

5, 2012) (unpublished); Progressive Sales, Inc. v. Wilhams, Willeford, Boger, Grady ¢» Davis, 86 N.C.

App. 51, 56, 356 S.B.2d 372, 375 (1987) (noting that although Rorrer does not mandate

introducing expert testimony in a legal malpractice action, it does stress the need to establish

the standard of care in the same or similar legal community). However, where the parties offer

“two wholly different standards of care through their expert witnesses ... . there [is] a genuine

issue of material fact as to the standard of care applicable .. . which the trial court [is] not

authorized to decide.” State Emps. Credit Union v. Hendryx, No. COA09-17, 2009 WL 4912727,

at *5 (N.C. App. Dec. 22, 2009) (unpublished).

Here, the parties each submitted expert reports and depositions regarding the standard

of care applicable to attorneys in North Carolina, and whether Defendant Grossman breached

that standard of care. (See Docket Entries 60-11, 60-12, 60-13, 60-14, 64-5, 66-1.) Defendant

Grossman submitted a short excerpt of their expert report from Thomas Sallengetr, who has

been a practicing attorney in North Carolina for more than 35 years and has extensive

expetience preparing for and trying cases before juries, including in cases involving claims of

assault and issues of self defense. (Docket Entry 60-14 at 1.) Sallenger stated in pertinent

part as follows:

At the time of trial in this matter, Grossman had more than forty years

experience in the practice of Law, Procedures and Trial Practice. The discovery

conducted by Grossman was thorough, complete and well considered. Any

attorney acting in the best interest of their client would ensure that they had

taken all steps necessary to be apprised of all of the factual basis supporting any

claims taised against their client. [Sallenger] did not review any evidence

indicating Grossman failed to exercise that professional judgment in good faith.

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A review of the transcript from the trial proceedings in this matter clearly reveals

that Grossman was very prepared for this trial from jury selection until the final

result of the case as decided by the jury. ...

The strategy on the part of [Defendant Grossman] was well considered, often

times done, and strategically considered.

(Docket Entry 60-14 at 2-3.) Plaintiff submitted an expert report by John Buric, who

according to his deposition had “tried 88 cases to a verdict.” (Docket Entries 64-5, 66-1 at 2.)

Butic stated in his report in pertinent part as follows:

The standard of cate that Defendants owed to [Plaintiff] was that of ordinary

skill and capacity commonly possessed and exercised by a North Carolina

attorney with at least thirty-five years’ experience as a practicing North Carolina

attorney. ...

Since Gtrossman’s judgeship was to begin January 1, 2019, Defendants all of a

sudden decided that bifurcating the trial was no longer feasible. The sole reason

for this change was due to Grossman trying to wrap up his caseload before the

new yeat. Again, Defendants put their own interest ahead of their client’s

interest. After Grossman changed his position, it does not appear Grossman

explained the significant potential ramifications of this decision to his client.

Defendants failed to properly conduct discovery. . . . By conducting the

depositions so late in the process, Defendants did not allow themselves a proper

time frame to digest, incorporate, or rebut Simmons’ expert testimony. .. .

Defendants breached their duty of care owed to [Plaintiff] in the 2017 case in a

multitude of ways....

Defendants, who had thirty-five yeats’ experience, failed to adhere to basic trial

practices and procedures .... Defendants failed to investigate Simmons’ claims

as to why he exited his vehicle and his intent upon exiting. Had they performed

minimal research, Defendants would have known the ins-and-outs of Simmons’

truck and trailer and attacked his credibility by showing major inconsistencies

in his testimony. ...

Based on the foregoing, Defendants violated their standard of care by placing

their interest, and the interest of others, above the interest of their client, thus

creating a conflict.

(See Docket Entry 64-5.)

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Weighing the evidence and making credibility determinations is a jury function, and a

“Sudge’s role on a motion for summary judgment, by contrast, is not to weigh the evidence

and determine the truth of the matter, but to determine whether there is a genuine issue of

material fact for a juty to resolve at trial.” Sines v. Kessler, 558 F.Supp.3d 250, 255 (W.D. Va.

2021). Here, the Court concludes that there is a genuine issue of material fact as to the

standard of care applicable in this case and whether Defendant Grossman breached that

standard regarding the preparation for and decision not to bifurcate punitive damages,

obtaining Plaintiff's informed consent regarding not bifurcating damages, and not conducting

additional “substantive” discovery in the 2017 case. Specifically, the parties offered two

differing expert opinions of the standard of care applicable to Defendant Grossman’s

representation and whether Defendant Grossman breached that standard of care. See State

Emps. Credit Union, 2009 WL 4912727, at *5 (concluding that there was a genuine issue of

material fact as to the standard of cate applicable which the trial court was not authorized to

decide, as the patties offered two wholly different standards of care through their expert

witnesses). Therefore, Defendants’ motion for summary judgment will be denied as to legal

malpractice to the extent it is based on Defendant Grossman’s preparation for and decision

not to bifurcate punitive damages and not conducting more discovery in the 2017 case.

Additionally, given that the Court finds there is a genuine issue of material fact as to the

applicable standard of care and whether Defendant Grossman breached that standard of care,

the Court need not address proximate cause, as that is predicated upon first finding that

21

Defendant Grossman breached the duty owed to Plaintiff. Rorrer, 313 N.C. at 355, 329 S.E.2d

at 366.°

iii. Punitive Damages

Defendants argue that North Carolina courts have not addressed whether a client

assessed with punitive damages can later recover those damages from his attorney in a

malpractice action and that Plaintiff lacks any evidence supporting an assessment of punitive

damages against Defendant Grossman. (See Docket Entry 61 at 24-29.) However, Plaintiff

concedes that he is not seeking punitive damages under the theory of legal malpractice, rather

his claim for punitive damages is for Defendant Grossman’s fraud in entering into the 2017

Consent Order. (Docket Entry 66 at 11.)

Plaintiffs fraud claim is based upon the 2017 Consent Order that Plaintiff alleges

Defendant Grossman intentionally entered without his consent. (See generally Am. Compl.)

However, as stated above the Court has determined that the issue regarding Defendant

Grossman’s authority to enter into the 2017 Consent Order is issue precluded as North

Carolina courts have concluded that Plaintiff failed to meet his burden to rebut the

presumption that Defendant Grossman had the authority to consent on Plaintiffs behalf to

that dismissal order. ‘Thus, given that Plaintiff is precluded from asserting that Defendant

"Due to the Court finding a genuine issue of material fact as to whether Defendant Grossman

breached his duty of care to Plaintiff, the respondeat superior claim against Defendant Black & Boone,

P.A. proceeds as it relates to the legal malpractice claim only. See Buchanan v. Fairfield Resorts, Inc., No.

1:04CV725, 2005 WL 3157580, at *3 (M.D.N.C. Nov. 25, 2005) (unpublished) (“Respondeat superior

is not an independent cause of action. It is a doctrine that makes ‘a master... liable in certain cases

for the wrongful acts of his servant, and a principal for those of his agent.””); see a/so BDM Inv. v. Lenhil,

264 N.C. App. 282, 304, 826 S.E.2d 746, 764 (2019) (“Generally, “a principal will be liable for its

agent’s wrongful acts under the doctrine of respondeat superior when the agent’s act (1) is expressly

authorized by the principal; (2) is committed within the scope of the agent’s employment and in

furtherance of the principal’s business; or (3) is ratified by the principal.””).

22

Grossman entered into the 2017 Consent Order of Dismissal without his authority or consent,

his fraud claim necessarily fails as a matter of law, as that is an indispensable issue pertaining

to his fraud claim, and as such he is not entitled to punitive damages. See Harmon, 2012 WL

2308313, at *3 (affirming trial court’s dismissal of the action because an indispensable issue of

plaintiff's claim was raised and resolved in prior decision).

D. Plaintiffs Motion for Summary Judgment or in the alternative for Partial

Summary Judgment

First, the Court notes that Plaintiff moves for Summary Judgment as “to the allegations

and defenses stated in Defendants’ Answer and Answet to Amended Complaint” (Docket

Entry 64); however, based on Plaintiffs arguments, the Court construes Plaintiff as moving

for summaty sudgment on all claims against Defendants as alleged in his Amended Complaint,

(Docket Entry 65). Plaintiff argues that (1) Defendant Grossman committed fraud by

intentionally entering into the 2017 Consent Order without his consent; and (2) Defendant

Grossman’s representation of Plaintiff in the 2015 and 2017 state cases violated the standard

of cate and was malpractice. (See generally id.) Defendants argue, infer ala, that Plaintiff falls

short of meeting his burden on any claim, as he offers nothing more than his own conclusions

that the elements of his claims are met, and that Plaintiffs brief demonstrates his summary

judgment motion, at best, hinges upon multiple disputed issues of fact, and should be dented.

(See Docket Entry 68.) The Court will now view the facts in the light most favorable to the

nonmoving party.

i. Fraud

For the reasons previously discussed, Plaintiffs fraud claim fails as a matter of law, as he

is issue precluded from asserting that Defendant Grossman improperly entered into the 2017

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Consent Order, which is an indispensable issue pertaining to his fraud claim (see generally Am.

Compl). See Harmon, 2012 WL 2308313, at *3.

ii. Legal Malpractice

Plaintiff argues that Defendant Grossman violated the standard of care duting his

representation of Plaintiff in the 2015 and 2017 cases against Simmons in North Carolina state

coutt. (Docket Entry 65.) As to Defendant Grossman’s representation of Plaintiff in 2015,

Plaintiff contends that Defendant Grossman breached his duty of care by entering into the

2017 Consent Order without his consent. (Id. at 14-16.) However, as previously addressed

herein this issue is precluded, and thus, Plaintiff cannot establish Defendant Grossman

enteting into the 2017 Consent Order is a basis for malpractice.

Plaintiff further asserts that Defendant Grossman breached his duty of care to Plaintiff

regarding the 2015 case by failing to conduct discovery, being unaware of the pending claims,

and not seeking costs after Simmons filed his second complaint. (Id. at 15-16.) Additionally,

Plaintiff contends that Defendant Grossman breached the duty of care regarding the 2017

case that ultimately resulted in a jury verdict against Plaintiff by failing to determine Plaintiffs

collectable assets, stipulating to the parties not bringing into evidence that Plaintiff was not

prosecuted for shooting Simmons, and failing to question Detective Arthur regarding

Simmons’s statements that showed “material factual inaccuracies.” (Id. at 17-22.) As

pteviously stated, the parties submitted expert reports and depositions regarding the standard

of cate applicable to attorneys in North Carolina, which the Court determined that the

applicable standard of care and whether Defendant Grossman breached that standard of care

24

ate juty issues, thus Plaintiffs summary judgment motion is denied as to whether these failures

by Defendant Grossman were malpractice.®

Plaintiff also argues that Defendant Grossman breached the standard of cate by

consenting to a pretrial order that was “extremely prejudicial” to Plaintiff and by failing to

conduct proper discovery in 2017. (Docket Entry 65 at 17-20.) However, to the extent that

Plaintiff argues the stipulation regarding the 2012 and 2015 complaints being inadmissible

constituted a breach by Defendant Grossman, as previously stated herein that issue is

precluded. Further, Plaintiffs argument that Defendant Grossman breached the standard of

cate in 2017 by not bifurcating the trial and failing to conduct proper discovery has been

previously addressed herein and for the reasons articulated above, the Coutt finds there is an

issue of material fact, and as such Plaintiff's motion is denied as to these issues.

Additionally, Plaintiff argues that Defendant Grossman’s “violations” of the duty he

owed Plaintiff directly and proximately caused Plaintiffs injuries in 2015 and 2017. (id. at 21-

22.) However, given that the Court concludes there is a genuine issue of material fact regarding

the applicable standard of care and whether Defendant Grossman breached that standard, the

Court will not address proximate cause as discussed above.

‘Due to the Court concluding that there is a genuine issue of material fact regarding Plaintiff's

malpractice claim, Plaintiffs respondeat superior claim also remains. See Buchanan, 2005 WL 3157580,

at *3 (“Respondeat superior is not an independent cause of action. It is a doctrine that makes ‘a master

... liable in certain cases for the wrongful acts of his servant, and a principal for those of his agent.””);

see also BDM Inv., 264 N.C. App. at 304, 826 S.E.2d at 764 (“Generally, ‘a principal will be liable for its

agent’s wrongful acts under the doctrine of respondeat superior when the agent’s act (1) is expressly

authorized by the principal; (2) is committed within the scope of the agent’s employment and in

furtherance of the principal’s business; or (3) ratified by the principal.”’),

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IV. CONCLUSION

For the reasons stated above, IT IS THEREFORE ORDERED that Plaintiff John

Wiles’ Amended Motion for Summary Judgment, or za the alternative, Partial Summary

Judgment (Docket Entry 64) is DENIED.

IT IS FURTHER ORDERED that Defendants Black & Boone, P.A. and Steven A.

Grossman’s Motion for Summary Judgment (Docket Entry 60) is GRANTED IN PART

AND DENIED IN PART, GRANTING the motion to the extent that: (1) Plaintiffs legal

malpractice claim is based on Defendant Grossman improperly entering into the 2017

Consent Order and improperly stipulating to not using the 2012 and 2015 complaints without

PlaintifPs consent; and (2) dismissing the fraud claim against Defendant Grossman in its

entitety (Count IT), but otherwise DENYING the motion.

IT IS FURTHER ORDERED that Plaintiffs Verified Motion to Extend Time to

File Plaintiffs Amended Motion for Summary Judgment, Brief in Support of Amended

Motion for Summaty Judgment, and Response in Opposition to Defendants’ Motion for

Summary Judgment (Docket Entry 70) is GRANTED.

elites

United States Magistrate Judge

Match 31, 2023

Dutham, North Carolina

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