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In North Carolina, contributory negligence by the client is an absolute defense to a professional liability claim against an attorney. Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C. App. 343, 351, 712 S.E.2d 328, 334, disc. review denied, 365 N.C. 357, 718 S.E.2d 391 (2011). “Contributory negligence is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant alleged in the complaint to produce the injury of which the plaintiff complains.” Id. at 351-52, 714 S.E.2d at 334.
While there are numerous reported North Carolina appellate cases where the defendant attorney successfully asserted contributory negligence on summary judgment, less frequent are North Carolina appellate decisions where the defendant attorney has prevailed before the jury relying on contributory negligence. The most recent example is Maldjian v. Bloomquist, 853 S.E.2d 753, 2020 WL 7349293 (N.C. App. Dec. 15, 2020). At issue was whether the completed purchase of land in Davie County was for either 22 or 62 acres. The Bloomquists from Pennsylvania were looking in North Carolina for property that they intend to be used by their North Carolina family members. Working with a local real estate agent, the Bloomquists identified a property and made multiple offers on a significant acreage in Mocksville, North Carolina then owned by the Maldjians.
After the execution of the Purchase Agreement, the Bloomquists retained a real estate attorney to serve as their closing attorney. According to the opinion and briefing, the attorney reviewed the Purchase Agreement, missed the recorded plat in the title chain of title, and prepared the Deed for the entire 62-acre tract. She also agreed to represent the Maldjians at the closing but neither gave any notice of the adverse representation to the Bloomquists nor obtained a written waiver of the conflicts of interest in the joint representation. The attorney did not attend the closing and had only the signature page of the Deed presented to the Maldjians, not the complete document.
Ten months later, the issue of the acreage conveyed came to light. The Bloomquists contended that the purchase was for 62 acres while the Maldjians asserted a sale of 22 acres. The parties had substantial arguments for their respective positions based on the negotiations and the Purchase Agreement. The attorney took positions that the sale was for 22 acres and that she had made a mistake in preparation of the Deed. The attorney offered to correct the Deed at no cost to either party. She also provided to the Maldjians an affidavit of her privileged communications with the Bloomquists.
After negotiations between the parties failed, the Maldjians filed suit against the Bloomquists seeking reformation of the deed based on mistake and unjust enrichment. In relevant part, the Bloomquists denied the material allegations of the Complaint, and added a negligence claim against their attorney as a third-party defendant, seeking damages for the cost of defending the litigation by the Maldjians. The attorney “stipulated to her negligence in preparation of the Deed, leaving the issue of the Bloomquists’ damages for the jury.” However, the attorney asserted that “the Bloomquists were contributorily negligent, in that they viewed her mistake as an opportunity; a chance to claim ownership of the land they did not purchase. That decision resulted in litigation, which caused them to incur attorney’s fees.” Maldjian, at *11.
At trial, the parties hotly contested all aspects of the case. Over 8 days of trial, the Davie County jury heard testimony from 11 witnesses and reviewed more than 80 exhibits. The attorney, the real estate agent, and other witnesses testified to statements by Dr. Bloomquist which indicated that he knew the purchase was for 22 acres. The Bloomquists sought to undermine the credibility of their attorney in several ways including a suggestion of bias based on her violations of the North Carolina Rules of Professional Conduct. The trial court excluded this evidence, in part because the Rules themselves and North Carolina case law establish that violation of those rules cannot be used as a basis for the claim of legal malpractice. However, the trial court did allow the cross-examination of the attorney about the acts at issue without mentioning the Rules.
After approximately 21 minutes of deliberation, the jury found in relevant part that (1) Maldjians had executed the Deed under a mutual mistake of fact that caused the deed to transfer 62 acres, not the intended 22 acres and (2) the Bloomquists were damaged by the negligence of the attorney but that they contributed to their damages by their own negligence or intentional wrong doing. The trial court ordered that the Bloomquists execute a deed of correction within (10) days, conveying only 22 acres to Bloomquists.
The Bloomquists appealed the denial of their motions for directed verdict and judgment notwithstanding the verdict. As to the issues involving the attorney, the North Carolina Court of Appeals affirmed that there was sufficient evidence to submit the issue of contributory negligence to the jury and to support the jury’s verdict. As to the exclusion of the evidence on the Rules of Professional Conduct, the appellate court also affirmed, in part, noting the failure to make a proffer of the evidence.
In short, Maldjian shows the skillful use of the contributory negligence defense in a legal malpractice trial.
