Opinion
No. COA10-858
Filed 19 April 2011 This case not for publication
Appeal by plaintiff from order entered 15 April 2010 by Judge Kenneth C. Titus in Wake County Superior Court. Heard in the Court of Appeals 15 December 2010.
Law Office of Charles M. Putterman, P.C., by Charles M. Putterman, for plaintiff-appellant. Tharrington Smith, LLP, by Jill Schnabel Jackson and Fred M. Morelock, for defendant-appellees.
Wake County No. 09 CVS 016504.
Where plaintiff failed to file his complaint against McKnight within three years of the last act of negligence, and within one year of the discovery of the alleged negligence, plaintiff's action against McKnight was properly dismissed based upon the statute of limitations set forth in N.C. Gen. Stat. § 1-15(c).
I. Factual and Procedural Background
In 2005, John M. Button, Jr. (plaintiff) hired the law firm of Hatch, Little Bunn, L.L.P. (HLB) to obtain an absolute divorce from his then wife, Shelby Jean Button (Shelby). On 15 July 2005, John McKnight (McKnight), an attorney with HLB, filed a complaint on behalf of plaintiff seeking an absolute divorce. On 2 August 2005, service was obtained upon Shelby. On 19 August 2005, a judgment of absolute divorce was entered by summary judgment. Almost three years later, on 17 April 2008, Shelby filed a motion for relief from judgment and requested that the divorce judgment be set aside. On 16 May 2008, John McClain (McClain), an attorney with HLB, filed an answer on behalf of plaintiff.
After being served with Shelby's motion, plaintiff advised McClain that he had plans to remarry and inquired about the validity of the 19 August 2005 divorce judgment. McClain allegedly advised plaintiff that his divorce was valid and that he could proceed with his wedding. On 26 May 2008, plaintiff remarried. On 3 December 2008, the trial court granted Shelby's motion for relief from judgment and set aside the divorce judgment.
On 18 August 2009, plaintiff filed a complaint against defendants and alleged: (1) McKnight was negligent in filing and calendaring a motion for summary judgment less than 30 days after Shelby was served with the complaint; and (2) McClain was negligent in advising plaintiff that his divorce was valid and that he could legally remarry. Plaintiff asserted that HLB was vicariously liable for the actions of its employees under the doctrine of respondeat superior.
On 14 September 2009, McKnight filed motions to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2) and (b)(4)-(6). On 20 October 2009, McClain and HLB filed a motion to dismiss and an answer denying the material allegations of plaintiff's complaint. On 15 April 2010, the trial court entered an order granting McKnight's motion to dismiss on the basis that the applicable statute of limitations under N.C. Gen. Stat. § 1-15(c) expired prior to the filing of this action. The trial court denied McClain and HLB's motion to dismiss.
Plaintiff appeals.
II. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) is the usual and proper method of testing the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970).
On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted. Isenhour v. Hutto, 350 N.C. 601, 604, 517 S.E.2d 121, 124 (1999). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim. Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). "A statute of limitation or repose may be the basis of a 12(b)(6) dismissal if on its face the complaint reveals the claim is barred by the statute." Cage v. Colonial Building Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994) (citations omitted).
III. Statute of Limitations
In his only argument, plaintiff contends that the trial court erred in granting McKnight's motion to dismiss because the applicable statute of limitations had not expired at the time plaintiff filed his complaint. We disagree.
The applicable statute of limitations is set forth in N.C. Gen. Stat. § 1-15(c):
Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action. . . .
N.C. Gen. Stat. § 1-15(c) (2009). "As enacted, G.S. 1-15(c) provides for a minimum three-year period from occurrence of the last act; [and] an additional one-year-from-discovery period for injuries `not readily apparent' subject to a four-year period of repose commencing with defendant's last act giving rise to the cause of action. . . ." Black v. Littlejohn, 312 N.C. 626, 634, 325 S.E.2d 469, 475 (1985) (footnote omitted).
McKnight's last act which gave rise to plaintiff's claim of negligence occurred on 19 August 2005 when he obtained the divorce judgment that was subsequently vacated. See Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (holding that the attorney's last act that gave rise to the claim was his supervision of the execution of the will), reh'g denied, 338 N.C. 672, 453 S.E.2d 177 (1994). Plaintiff filed his complaint against McKnight on 18 August 2009. Thus, plaintiff filed this action outside of the three-year statute of limitations. We must therefore determine whether plaintiff was entitled to the additional one-year-from-discovery period to file his complaint.
The "one-year-from-discovery exception contained within the second provision of G.S. 1-15(c) is subject to a four-year absolute or outer time limit within which plaintiff must bring an action for malpractice. This outer time limit begins with the last act of the defendant giving rise to the cause of action." Black, 312 N.C. at 629, 325 S.E.2d at 472. In order for the one-year-from-discovery exception to be applicable, the plaintiff must establish the following four factors:
(1) the injury or economic loss originated under circumstances making the injury or loss not readily apparent at the time of its origin;
(2) the injury or loss was discovered or should reasonably have been discovered by the plaintiff two or more years after the occurrence of the last act of the defendant giving rise to the cause of action;
(3) suit was commenced within one year from the date discovery was made; and
(4) the statute of limitations may not, in any case, have been reduced to below three years or extended beyond four years.
Thorpe v. DeMent, 69 N.C. App. 355, 358-59, 317 S.E.2d 692, 694-95, aff'd per curiam, 312 N.C. 488, 322 S.E.2d 777 (1984).
For purposes of our review, we presume that the injury originated under circumstances making the injury or loss not readily apparent to plaintiff at the time of its occurrence. Plaintiff filed this action against McKnight on 18 August 2009, just before the absolute four-year period expired.
Plaintiff argues that "he didn't know he'd suffered any invasion of a legally protected right — that any negligence had occurred — until December 3, 2008 [,]" the date the trial court set aside the divorce judgment. Plaintiff asserts that this is the date of discovery under N.C. Gen. Stat. § 1-15(c). Defendants contend that the trial court correctly determined that plaintiff discovered or should reasonably have discovered his injury by 16 May 2008, the date his attorney responded to Shelby's motion to set aside the divorce judgment. We hold that the issue presented in this case is identical to that in Thorpe v. DeMent, supra, and that our ruling in that case is determinative in the instant case.
In Thorpe, Shirley Thorpe died in an automobile collision that occurred between her vehicle and that of Robert Wilson on 16 April 1976. 69 N.C. App. at 355, 317 S.E.2d at 693. Wilson also died as a result of the accident. Id. Approximately two weeks later, the plaintiffs hired the defendants to represent them in initiating an action for the wrongful death of Thorpe. Id. Notice of the plaintiffs' claim for wrongful death was required to be given to the Wilson estate by 16 October 1976 pursuant to N.C. Gen. Stat. § 28A-19-3. Id. at 357, 317 S.E.2d at 694. No notice of a claim for the plaintiffs' wrongful death claim was given to the Wilson estate until the complaint seeking damages for wrongful death was filed on 11 May 1977. Id. at 356, 317 S.E.2d at 693. On 17 November 1977, the defendants informed the plaintiffs that they had failed to timely present the plaintiffs' wrongful death claim to the Wilson estate. Id. The plaintiffs obtained new counsel and proceeded with the wrongful death action. Id. On 16 August 1979, the trial court granted summary judgment, limiting plaintiffs' recovery to any applicable insurance coverage and barring recovery from the Wilson estate. Id.
On 31 October 1979, the plaintiffs filed a complaint against the defendants for negligence in failing to provide proper notice to the Wilson estate. Id. Summary judgment was granted in favor of the defendants on the basis that the action was barred by the statute of limitations provided in N.C. Gen. Stat. § 1-15(c). Id. at 357, 317 S.E.2d at 694. The plaintiffs appealed and argued that they had not discovered any loss until the trial court entered the order on 16 August 1979 barring their recovery from the Wilson estate. Id. at 360, 317 S.E.2d at 695. This Court rejected this contention and held that the plaintiffs' injury occurred when the defendants failed to make a timely presentment of their claim to the Wilson estate pursuant to N.C. Gen. Stat. § 28A-19-3. Id. at 361, 317 S.E.2d at 696. The plaintiffs were informed of the negligent conduct on 17 November 1977. Id. at 362, 317 S.E.2d at 696. We held the following:
By virtue of the fact that defendant DeMent informed plaintiffs of his omission on or about 17 November 1977, the plaintiffs were at the very least put on inquiry notice of their possible cause of action for legal malpractice. At that point in time, plaintiffs had before them the facts, or access to the facts, necessary for them to "discover" both their attorney's negligence and the consequent loss of their legal rights against the Wilson estate. In other words, plaintiffs had constructive knowledge of all of the essential elements of a complete malpractice cause of action.
Id. at 362, 317 S.E.2d at 696-97 (citations omitted). We held that the plaintiffs "should have discovered their loss on or shortly after 17 November 1977." Id. at 363, 317 S.E.2d at 697.
The rationale of Thorpe is controlling. On 17 April 2008, Shelby filed a motion to set aside the divorce judgment. After being served with the motion, plaintiff inquired about the validity of the 19 August 2005 divorce judgment. On 16 May 2008, McClain filed an answer on behalf of plaintiff. We hold that plaintiff was put on notice of a possible cause of action for legal malpractice at the latest on 16 May 2008. As of that time, plaintiff had before him "the facts, or access to the facts, necessary for [him] to `discover'" McKnight's alleged negligence and the invalidity of the divorce judgment. Id. at 362, 317 S.E.2d at 697. Plaintiff "had constructive knowledge of all of the essential elements of a complete malpractice cause of action." Id. Plaintiff should have discovered his injury on or before 16 May 2008.
Plaintiff filed his complaint against defendants on 18 August 2009, more than one year after the discovery of McKnight's alleged negligence. Thus, plaintiff has failed to demonstrate that he timely filed his complaint against McKnight under the one-year-from-discovery provision pursuant to N.C. Gen. Stat. § 1-15(c). The trial court properly dismissed plaintiff's complaint against McKnight.
AFFIRMED.
Judges STEPHENS and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).