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Rogers v. Lee

Court of Appeals of South Carolina

September 2, 2015

Gretchen A. Rogers, as Guardian ad Litem for Mark A. Malloy, Appellant,
Kenneth E. Lee and Law Offices of Lee & Smith, P.A., Respondents

Heard May 7, 2015.

Appeal From Spartanburg County. Frank R. Addy, Jr., Circuit Court Judge. Appellate Case No. 2013-002699.

Thomas A. Pendarvis and Catherine Brown Kerney, both of Pendarvis Law Offices, PC, of Beaufort, and Brent Paul Stewart, of Stewart Law Offices, LLC, of Rock Hill, for Appellant.

David W. Overstreet and Michael Baxter McCall, both of Carlock Copeland & Stair, LLP, of Charleston, for Respondents.

HUFF, J., WILLIAMS, J., concurs. FEW, C.J., concurring.


Page 403

[414 S.C. 227] HUFF, J.:

Gretchen A. Rogers, as guardian ad litem (GAL) for Mark A. Malloy, brought this legal malpractice action against Kenneth E. Lee (Attorney Lee) and Law Offices of Lee & Smith, P.A. (the Law Office) (Attorney Lee and the Law Office hereinafter collectively referred to as LEE), based upon LEE's representation of Malloy in a North Carolina workers' compensation claim. Rogers appeals from an order of the trial court granting summary judgment in favor of LEE on the basis that North Carolina's substantive law applies such that the state's statute of repose bars the legal malpractice claim. We affirm.


Attorney Lee, who is licensed to practice law in North Carolina, represented Malloy in a North Carolina workers' compensation claim after Malloy sustained injuries in 2002 when he fell from a ladder while working in North Carolina for a North Carolina employer. On April 16, 2003, Malloy entered into a contract of representation, retaining the Law Office to represent him in the matter and pursue the North Carolina workers' compensation claim. Among other things, this agreement provided representation of Malloy would end " when the case is either settled or decided at a hearing." Additionally, it stated as follows: " This agreement shall be governed by the law of the State of North Carolina and the Rules and Regulations of the North Carolina Industrial Commission." On November 25, 2003, Malloy entered into a settlement agreement with the employer and carrier to accept payment of $100,000 in full satisfaction of any current and future claims he may have as a result of the accident. Both Attorney Lee and Malloy were present at mediation in North Carolina when the settlement was reached and, along with Malloy's wife, executed the agreement at that time. By letter dated February 25, 2004, the Law Office disbursed Malloy's settlement funds from its South Carolina office to Malloy's South Carolina home. The Law Office's last correspondence with Malloy occurred on January 10, 2005, when Malloy was provided with a copy of a form in regard to his workers' compensation claim.

[414 S.C. 228] Rogers, as GAL for Malloy, filed this action in Spartanburg County's Court of Common Pleas on December 6, 2012, asserting claims for professional negligence, breach of fiduciary duty, and breach of contract. Thereafter, LEE filed a motion for summary judgment on the ground Malloy's claims were barred by North Carolina's four-year statute of repose, asserting the claims were governed by North Carolina substantive law and more than four years had elapsed since the last alleged act or omission giving rise to the causes of action.[1] Rogers opposed the

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motion for summary judgment, arguing South Carolina follows the traditional choice of law principle whereby the substantive law applied in a tort action is governed by the lex loci delicti, which is the law of the state in which the injury occurred. She asserted Malloy's financial injury stemming from LEE's professional negligence and breach of fiduciary duty occurred in South Carolina, where he resided. She additionally maintained South Carolina, which has not adopted a statute of repose for professional negligence or breach of fiduciary claims against lawyers, has an interest in compensating victims for injuries resulting from such negligence and breach of duty, and in particular when the resulting injury occurs in South Carolina.

The trial court filed a Form 4 order on September 5, 2013, granting summary judgment to LEE. In this order, the trial court noted the contract between the parties contained a choice of law clause providing North Carolina substantive law would govern the contract, that Rogers alleged LEE negligently settled the North Carolina workers' compensation action, and North Carolina's statute of repose would bar the present action. The court held the case of Nash v. Tindall Corp., 375 S.C. 36, 650 S.E.2d 81 (Ct.App. 2007) controlled the matter and, noting the underlying workers' compensation action was filed, mediated, settled and approved in North [414 S.C. 229] Carolina, concluded the lex loci delicti of the action arose in North Carolina.

The trial court thereafter filed a formal order, again finding this case indistinguishable from Nash, as Rogers alleged Malloy's injuries were directly and proximately caused by Malloy's acceptance of LEE's advice to settle his workers' compensation claim and that advice was given and relied upon at mediation in North Carolina, and Malloy agreed to the settlement and executed the settlement agreement in North Carolina. Additionally, the trial court found Malloy sought out and retained an attorney licensed to practice in North Carolina to pursue a workers' compensation claim in North Carolina, his underlying workers' compensation claim was for injuries sustained in North Carolina while working for a North Carolina employer, and the parties' relationship was governed by the substantive law of North Carolina pursuant to the terms of their contract of representation. In regard to any public policy exception as a basis for declining to apply North Carolina's statute of repose, the trial court found the fact that the law of two states may differ does not necessarily indicate the law of one state violates the public policy of another. It noted our courts have specifically held the " good morals or natural justice" of South Carolina are not violated when foreign law is applied to preclude a tort action for money damages, even if ...

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