Civil Practice – Appeal from an Interlocutory Order – Case within a Case

Defendant failed to show we have jurisdiction to hear this appeal from an interlocutory order.

We dismissed the appeal.

Defendants James M. Sack and The Sack Law Firm (collectively, Mr. Sack) appealed from the trial court’s order denying their motion to dismiss the legal malpractice claim brought by Plaintiffs, Capitol City Homes, LLC and two of its owners. Mr. Sack argued the legal malpractice claim cannot be pursued at the same time as the underlying breach of contract claim. Capitol City moved to dismiss this appeal due to lack of jurisdiction.

Mr. Sack argued that the denial of his motion to dismiss deprives him of his substantial rights “to defend a legal malpractice case using the ‘case within a case’ method of proof” and “to avoid the risk of inconsistent verdicts.” We disagreed. A plaintiff in a legal malpractice action must prove the merits and damages of the underlying case or matter in which the lawyer represented them in addition to proving malpractice by the lawyer. This has been referred to as having to prove “a case within a case.” Generally, a plaintiff must show that, but for the alleged malpractice, he or she would have prevailed or fared better in the underlying case.

The denial of Mr. Sack’s motion to dismiss does not change Capitol City’s burden “to prove the viability and likelihood of success of the underlying case as part of the present malpractice claim,” nor does it impact the methods through which Mr. Sack can defend the legal malpractice claim brought against him. The merits of and damages resulting from the underlying breach-of-contract case—even if the damages include only litigation costs—must be decided before any legal malpractice is determined. The trial court can bifurcate the cases, trying the underlying case to a conclusion first and then, if necessary, trying the malpractice action. Accordingly, Mr. Sack failed to show his “right to defend a legal malpractice case using the ‘case within a case’ method of proof” is a substantial right that would be lost or jeopardized absent immediate appeal of the trial court’s order denying is his motion to dismiss.

Mr. Sack’s argument was not that he risks inconsistent verdicts before two different juries, but was instead that one jury would reach an internally inconsistent verdict, finding for Capitol City on both claims. But a jury’s finding for Capitol City on both claims is not necessarily inconsistent. Further, to the extent a jury’s finding for Capitol City on both claims is inconsistent, the appropriate way to address an inconsistency would be through post-judgment motions. Accordingly, Mr. Sack failed to show that he has a right “to avoid the risk of inconsistent verdicts” that would be lost or jeopardized if the trial court’s order denying his motion to dismiss is not immediately appealed.

Dismissed.

Capitol City Homes LLC v. Starlight Homes North Carolina LLC (Lawyers’ Weekly No. 011-273-25, 9 pp.) (Allegra Collins, J.) Appealed from Wake County Superior Court (A. Graham Shirley, J.) Ward and Smith, P.A., by Christopher S. Edwards, Michael J. Parrish, and Mark S. Wigley, and MichieHamlett, PLLC, by Les S. Bowers, for Plaintiffs-Appellees. Cranfill Sumner LLP, by Steven A. Bader and Ryan D. Bolick, for Defendants-Appellants James M. Sack and The Sack Law Firm, P.C. North Carolina Court of Appeals