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State v. Stockton5/19/1998
thereunder by the Commissioner. Plaintiff's argument is therefore unfounded.
Finally, plaintiff seeks to rely upon the doctrine of "adverse domination." This equitable doctrine has been cited as tolling the statute of limitations in causes of action against attorneys who have assisted tortious actions of individuals in control of a corporation. 2 Mallen & Smith, § 21.9 at 768. Plaintiff's reliance on the doctrine is unavailing.
G.S. § 1-15(c) contains a four year statute of repose, and equitable doctrines do not toll statutes of repose. Stallings v. Gunter, 99 N.C. App. 710, 716, 394 S.E.2d 212, 216 (citing Restatement (Second) of Torts § 899, Comment (g)(1979)), disc. review denied, 327 N.C. 638, 399 S.E.2d 125 (1990). Assuming arguendo the doctrine of adverse domination applies in this jurisdiction, plaintiff's malpractice action nonetheless is barred by the statute of repose. Plaintiff's complaint was filed 1 April 1996, and thus was not initiated within four years of "the last act of the defendant giving rise to the cause of action" (determined above to be December 1991 at the latest). See G.S. § 1-15(c).
Plaintiff's protest that the statute of repose contained in G.S. § 1-15(c) does not apply to actions brought by a state liquidator rings hollow. G.S. § 58-30-130(b) provides that a liquidator may bring suit on behalf of an insurer "within two years or such subsequent time period as applicable law may permit." The "applicable law" referred to is that applying to the insurer's cause of action, in this case ILA's malpractice action, governed by G.S. § 1-15(c).
To conclude, plaintiff's negligence claim is time-barred on the face of its complaint, and the trial court did not err in allowing defendants' motion to dismiss as to that claim.
We next turn to plaintiff's remaining three causes of action: constructive fraud, facilitating fraud, and breach of the duty of loyalty.
II. Constructive Fraud A constructive fraud complaint must allege facts and circumstances
(1) which created the relation of trust and confidence, and (2) led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.
Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950). Further, an essential element of constructive fraud is that "defendants sought to benefit themselves" in the transaction. Barger v. McCoy Hillard & Parks, 346 N.C. 650, 667, 488 S.E.2d 215, 224 (1997).
We note parenthetically that Barger was filed by our Supreme Court 24 July 1997, over two months after the instant case was argued before this Court. Nonetheless, the Barger rule applies herein because the instant case was pending on appeal when Barger was announced. See State v. Rivens, 299 N.C. 385, 391, 261 S.E.2d 867, 871 (1980)(" he rationale for applying a decision to other cases pending on appeal appears to be the realization that the pending case could just as easily have been the case in which the new rule was announced").
Plaintiff's complaint alleged defendants were the beneficiaries of the wrongdoing because they knew that the continued existence of ILA and FRFC was necessary for them to be able to receive their fees, and in early 1991, Petree Stockton received over $100,000 from ILA for legal services in connection with the failed stock offering and the sale of preferred stock by FRFC for the $2,500,000 loan by ILA through SEBS.
Plaintiff failed to allege, however, that defendants sought to gain a benefit through its actions, and Count II (constructive fraud) contained no allegation that ILA would have ceas
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