 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hargett v. Holland9/9/1994
Exum, Chief Justice.
This appeal presents the question whether a claim for professional malpractice against an attorney for alleged negligence in drafting a will is barred by the four-year statute of repose contained in our professional malpractice statute of limitations, N.C.G.S. ยง 1-15(c)(1983), when the claim is filed more than 13 years after the attorney prepared the will and supervised its execution. Section 1-15(c) provides:
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 : Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.
Id. (emphasis added).
Concluding that the attorney had a continuing duty to correct the will up until the testator died, the Court of Appeals held that the attorney's last act giving rise to the claim, from which the four-year statute of repose began to run, occurred immediately before the testator's death, which was within four years of the filing of the complaint; therefore, the statute of repose was not a bar to plaintiffs' claim. We hold that under the circumstances alleged in the complaint there was no continuing duty on the part of the attorney to correct the will; therefore, the attorney's last act giving rise to the claim was his supervision of the will's execution. Since this was more than four years preceding the filing of the complaint, we hold the four-year statute of repose bars the claim. Thus, we reverse.
Since the question is presented on a Rule 12(b)(6) motion to dismiss, we decide the case on the basis of the factual allegations in the complaint, taking them as true. Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (1979). Defendant's answer denies that he prepared the will or supervised its execution. The parties have stipulated that for purposes of deciding whether the claim is barred by the professional malpractice statute of limitations, we may treat the will "as having been prepared by the Defendant on or before September 1, 1978."
A statute of limitations or repose defense may be raised by way of a motion to dismiss if it appears on the face of the complaint that such a statute bars the claim. Oates v. JAG, Inc., <
Page 1 2 3 4 5 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|