Sith v. Childs No. 9126SC1224 (Filed 7 Deceber 1993) 1. Pleadings 375, 401 (NCI4th)-- aendents to coplaint -- after evidence introduced -- no abuse of discretion The trial court did not abuse its discretion in a legal alpractice action by allowing plaintiffs' otion to aend their pleadings where plaintiffs went to trial upon their previously aended coplaint alleging negligence in defendant's failure to advise the of the legal iplications of a contract to purchase real estate, a proissory note and purchase oney deed of trust, and a subordination agreeent, and the court allowed their otion at the close of plaintiffs' evidence to add further allegations of negligence. One of the new issues was sufficiently pled in the coplaint, and defendant ipliedly consented to trial on the reaining new issues because evidence supporting those issues did not tend to support any properly pled issue and defendant never specifically objected to that evidence as being outside the scope of the pleadings. Moreover, defendant suffered no prejudice in that defendant oved for a directed verdict on the allegations in the coplaint and the additional contentions "that are not alleged" before plaintiffs oved to aend, and thus understood that additional issues were being raised. N.C.G.S. 1A-1, Rule 15(b). A Jur 2d, Pleading 319-331. 2. Evidence and Witnesses 2150, 2152 (NCI4th)-- legal alpractice -- expert opinion testiony -- perissible scope The trial court erred in a legal alpractice action by allowing plaintiffs' expert to testify as to legal conclusions regarding a purchase oney deed of trust and personal guaranties. While legal experts ay testify regarding the factual issues facing the jury, they are not allowed to either interpret the law or to testify as to the legal effect of particular facts. Expert testiony here that language in a purchase oney deed of trust did not provide plaintiffs with adequate protection in the event of subordination should have been excluded because the expert was allowed to give his interpretation of the contract; furtherore, the expert should not have been allowed to give his individual interpretation of N.C. law on personal guaranties. A Jur 2d, Expert and Opinion Evidence 47 et seq., 136 et seq. 3. Daages 49 (NCI4th)-- legal alpractice -- purchase oney deed of trust and personal guaranty -- itigation of daages The trial court did not err by denying defendant's otions for judgent n.o.v. and directed verdict in a legal alpractice action where defendant alleged that the proxiate cause of plaintiffs' losses was plaintiffs' failure to enforce either a note or a personal guaranty. Defendant's arguent is actually based on an alleged failure to itigate daages, but a reasonable person would have concluded at the tie of the default that an attept to enforce the purchase oney note or the personal guaranty would be unsuccessful. N.C.G.S. 45-21.38. A Jur 2d, Daages 492 et seq. 4. Daages 151 (NCI4th)-- legal alpractice -- daages -- instructions -- exclusive nature of injuries The trial court erred in its instructions on daages in a legal alpractice action involving a purchase oney deed of trust and personal guaranty by instructing the jury that the daages recoverable would include the fair arket value of the subject property at the tie of the hypothesized foreclosure sale, less the expenses of the foreclosure proceedings. The instructions were erroneous because plaintiffs' clai was based on several alleged acts of negligence and the instructions did not present the proper easure of daages under one of the theories; the jury was not instructed on the exclusive nature of the theories; and the jury was not charged to consider onies plaintiffs actually received fro the sale of their land. Although the reand would ordinarily be solely on the issue of daages, the errors ake it ipossible to deterine the allegation upon which the jury ultiately based its verdict and the reand was for a new trial. A Jur 2d, Daages 988 et seq. NO. 9126SC1224 NORTH CAROLINA COURT OF APPEALS Filed: 7 Deceber 1993 JOSEPH E. SMITH, GEORGE V. SMITH, NICKOLAS W. SMITH, JESSE B. SMITH and ANNIE SMITH, Plaintiffs, v. STUART R. CHILDS, Defendant. Mecklenburg County No. 89 CVS 7028 Appeal by defendant fro judgent entered 2 Septeber 1991 by Judge Dexter Brooks in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 Noveber 1992. ZZGriffin, Caldwell, Helder & Lee, P.A., by Thoas J. Caldwell and R. Kenneth Hels, Jr.; and Walker & Walker, by John G. Walker, for plaintiff-appellees. Bailey & Dixon, by Gary S. Parsons, Alan J. Miles and Lauren A. Murphy; and Jones, Hewson & Woolard, by Harry C. Hewson and Kenneth H. Boyer, for defendant-appellant. JOHN, Judge. In this legal alpractice action, defendant appeals a judgent finding hi negligent and ordering hi to pay plaintiffs $900,000. Defendant contends the trial court erred (1) by allowing plaintiffs to aend their previously aended coplaint; (2) by allowing plaintiffs' expert witness to testify to certain legal conclusions; (3) by failing to deterine plaintiffs were entitled to a deficiency judgent against the debtor based upon the underlying land transaction; (4) by denying his otion for a directed verdict on the issue of daages; (5) by failing to instruct on the proper easure of daages; and (6) by refusing to accept the jury's original verdict. We agree in part and reand for a new trial. The evidence presented at trial tended to show the following: around 1980 plaintiffs inherited a twelve acre tract of land located on U.S. Highway 29 in Mecklenburg County. Shortly thereafter, several persons contacted plaintiffs and expressed an interest in purchasing this property. At soe point, plaintiffs entered into negotiations with J. W. Wood (Wood). Plaintiffs and Wood reached provisional accord on a purchase price for the property and thereafter plaintiffs retained defendant as legal counsel to represent the. Plaintiffs infored defendant the following ters had been tentatively agreed upon: (1) a purchase price of $710,000, of which plaintiffs were to receive $10,000 as earnest oney, $100,000 at closing, and a $600,000 proissory note secured by a purchase oney deed of trust; and (2) payents on the note were to be ade in five equal annual installents. Defendant thereafter entered into foral negotiations with Wood, secured soe additional ters favorable to plaintiffs (including a higher interest rate), and on 28 Deceber 1984 plaintiffs executed a land sale contract to convey the property. At closing on 16 May 1985, the purchasers (Wood, Marc Birnbau and Uri Sheinbau) executed a proissory note and a purchase oney deed of trust. The proissory note provided for five annual installents of $120,000 and a 12.5% annual interest rate. The deed of trust described the property as being divided into two tracts, Tract 1 of 12.08 acres and Tract 2 of .04 acres. The deed of trust instruent also contained the following provision: [T]he Grantor shall have the right and power by itself without the signature, approval or consent of either the Beneficiary or Trustee to subordinate the lien created by this Deed of Trust to any first lien or liens for any of the purposes described above [for developent loans, construction loans, peranent financing, or otherwise], provide