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Brittain v. Cinnoca8/17/1993
apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.
North Carolina General Statutes § 1-52(16). As such, we are not at liberty to attempt to harmonize these statutes. We find that the trial Judge's decision to grant the motion to dismiss was proper.
Next, defendants cross-assign as error the trial court's ruling that the defendants were not entitled to attorney's fees because plaintiffs made a good faith claim for extension of the existing law and because there was not a complete absence of a justiciable issue of either law or fact raised by plaintiffs' complaint. We agree with the decision of the trial court.
North Carolina General Statutes § 6-21.5 (1986) provides:
In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, . . . is not in itself a sufficient reason for the court to award attorney's fees, but may be evidence to support the court's decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney's fees. The court shall make
findings of fact and Conclusions of law to support its award of attorney's fees under this section. (Emphasis added.)
In the instant case, plaintiffs filed an application for an extension of time to file a complaint on 20 March 1991. Plaintiffs commenced the action by filing a complaint and summons on 9 April 1991, approximately three years and three weeks after defendants' last act or omission. In their complaint, plaintiffs argued that the statute of limitation, based upon a reading and harmonization of North Carolina General Statutes § 1-15(c) and § 1-52(16), should not begin until plaintiff discovers, or in the exercise of reasonable care should discover, that he was injured as a result of defendants' wrongdoing.
Although we have determined that plaintiffs are barred from bringing the action by the three year statute of limitation pursuant to North Carolina General Statutes § 1-15(c) and that North Carolina General Statutes § 1-52(16) is inapplicable to the case sub judice, we do find that plaintiffs advanced their claim in good faith for an extension or modification of the existing law. As such, the trial Judge was correct in denying defendants' motions for attorney's fees.
The decision of the trial court is affirmed.
Disposition
Affirmed.
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