As lead counsel, Melody Jolly (Wilmington) obtained dismissal at the pleadings stage of a legal malpractice claim alleging over $1,000,000.00 in damages stemming from alleged legal malpractice, among other claims. Plaintiff was charged with multiple felony counts in connection with the discharge and attempted cover up of over 330,000 gallons of untreated hog waste into United States waters. Plaintiff pleaded guilty, then alleged that defendant attorneys told him that they had a “side deal” with the Government that they would not seek incarceration. The alleged side deal was in direct contrast to the terms of plaintiff’s written plea agreement, and at the plea hearing, plaintiff told the Court under oath that no promises or representations had been made to him other than what was set forth in the written plea agreement. Plaintiff immediately appealed dismissal of the legal malpractice claim, and after oral argument, the Court of Appeals affirmed the trial court, holding that as alleged in the complaint plaintiff was in pari delicto – in the wrong about the same matter of which he complains – with the alleged (but denied) misconduct of defendant attorneys. (Freedman v. Payne, 784 S.E.2d 644 (2016)) Plaintiff then pursued his remaining claims for breach of fiduciary duty, breach of contract, fraud and constructive fraud at the trial court, and Jolly obtained dismissal with prejudice of all remaining claims at the pleadings stage, without the need for depositions and evidence.
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