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State v. Stockton5/19/1998
hich relief could be granted. Defendants' motions were allowed by the trial court 29 August 1996. Plaintiff filed notice of appeal to this Court 30 August 1996.
In reviewing the grant of a Rule 12(b)(6) motion, we must determine whether the plaintiff was entitled to relief "under any state of facts which could be presented in support of the claim." Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev'd on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985). In considering such a motion, all well-pleaded allegations of the complaint are taken as true. Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). It is also proper under a Rule 12(b)(6) motion to determine whether the applicable statute of limitations bars the plaintiff's claims if such bar appears on the face of the complaint. Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996).
The trial court's order granting defendants' motion did not specify the grounds therefor. However, two themes run through defendants' appellate briefs in support of the trial court's decision: 1) defendants have no liability to ILA simply for performing acts at the direction of ILA's officers and directors; and 2) in any event, the claims alleged in plaintiff's complaint are barred by the statute of limitations.
We must summarily reject defendants' first argument. At the time of the conduct at issue, it was clear that attorneys for a corporation owed their first duty to the corporation. See Superseded N.C. Rules of Professional Conduct (1985), Rule 5.10 (" lawyer who represents a corporation or other organization represents and owes allegiance to the entity and shall not permit his or her professional judgment to be compromised in favor of any other entity or individual"). In the event of activity by officers and directors which could harm the corporation, attorneys for the latter had a duty to protect the interests of the corporation. See 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.6 and § 24.9 (4th ed. 1996).
Defendants' contentions regarding applicability of the statute of limitations, however, require Discussion in detail.
I. Negligence
The statute of limitations applicable to plaintiff's first cause of action, negligence, is contained in N.C.G.S. § 1-15(c) (1996), which provides that actions for "malpractice arising out of the performance of or failure to perform professional services" must be brought within three years of the "accrual" of the cause of action. Specifically, G.S. § 1-15(c) states:
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 . . . .
Additionall
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