Ventriglia v. Deese, 194 N.C. App. 344, 669 S.E.2d. 817 (2008)
NC: Underlying Matrimonial trial
Student Contributor: David Yanoff
Plaintiff retained defendant to represent him in divorce proceedings. Plaintiff separated from his wife on October 27, 2000, who filed for absolute divorce on October 29, 2001. Plaintiff counterclaimed for equitable distribution and alimony. Absolute divorce was granted on December 7, 2001. Plaintiff and wife were both attorneys, and had entered a prenuptial agreement. Plaintiff and wife stipulated that the agreement was binding. Trial was conducted in August 2003, and the trial court found that while the agreement didn’t preclude equitable distribution, it did define separate property such that there was no marital property. Plaintiff’s equitable distribution claim was denied in August 2003 and filed in January 2004. Plaintiff appealed, and the court reversed the ruling that equitable distribution was not precluded, but upheld the finding that there was no marital property. In January, 2007, Plaintiff sued defendants for legal malpractice, alleging that defendants were negligent in representing plaintiff in the divorce lawsuit. Defendants moved to dismiss plaintiff’s claims as time-barred, and the motion was granted. Plaintiff had moved to amend the complaint during the hearings on the motion to dismiss, but the court dismissed the claims without ruling on the motion to amend. In the hearings, plaintiff suggested that although he was requesting leave to amend, the complaint should still have been able to survive a motion to dismiss. It did not survive. Plaintiff appealed, arguing that the court erred in failing to rule on the motion to amend before ruling on the motion to dismiss, and that the complaint should not have been dismissed even as originally alleged. According to plaintiff, defendants were negligent for failing to challenge the validity of the prenuptial agreement on appeal as well as at trial, and thus defendants’ last act for statute of limitations purposes occurred at the appeal.
1) Did the court err in dismissing the complaint without first ruling on plaintiff’s motion to amend?
2) Did defendant’s alleged negligence continue into the appeal, for statute of limitations purposes, because he didn’t raise an issue he omitted at trial?
1) No. Plaintiff never specifically asked the court to rule on the motion to amend. Though he tried to explain to the court that it would be better if they waited until the complaint was amended to rule on the dismissal motion, he did so after defendant’s motion had been argued. Plaintiff also told the court that he thought the claim could survive as it was.
2) No. NC Rules of Appellate Procedure require that an issue can only be raised on appeal if it was raised at trial. Though defendant’s failure to raise the issue at trial may have been malpractice, his failure to raise it again on appeal could not constitute malpractice, as defendant was simply adhering to the rules of the court at that time.
Clients who believe their attorney has committed malpractice should file against the attorney as quickly and as practically possible. Giving the attorney a chance to appeal could cost the client the malpractice claim, as the last act for statute of limitations purposes usually will be found to have occurred before the appeal, and the three year limitations period could easily run before the appeal is decided.