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Sharp v. Teague2/15/1994
GREENE, Judge.
Linda R. Sharp (plaintiff) appeals from a Rule 12(b)(6) dismissal of her complaint.
The complaint, filed on 9 June 1992 and amended on 17 June 1992, alleges in pertinent part that on 22 June 1984 plaintiff employed D. Keith Teague and D. Keith Teague, P.A. (defendants) to represent her in all matters arising from her separation and divorce from her former husband, "including but not limited to child support , child custody, alimony pendente lite, permanent alimony, equitable distribution, attorney fees, potential tort claims against Susan Willis Johnson (Sharp) and all other matters necessary to protect her legal entitlements under Chapter 50 of the North Carolina General Statutes." Defendants, who had agreed to represent plaintiff and accepted payments from her until 3 July 1989, withdrew as counsel of record for plaintiff on that date. Plaintiff subsequently employed new legal counsel in 1989.
Plaintiff asserts four theories under which she claims an entitlement to recovery: negligence, breach of contract, fraud, and breach of fiduciary duty. Plaintiff claims that defendants were negligent in several respects in that they: (1) failed to file an alienation of affection action against Susan Willis Johnson (Sharp); (2) failed to advise plaintiff of the statute of limitations on filing an alienation of affection claim; (3) did not, prior to 2 June 1988, take appropriate action to "prevent dissipation and disappearance of Plaintiff's interest in the marital property"; (4) advised plaintiff "that she would not qualify for alimony pendente lite and permanent alimony" and advised her to sign a consent decree on 7 November 1984 waiving those rights; (5) advised plaintiff to sign the 7 November 1984 consent decree in which defendants were to be paid $1,000 in attorney fees and defendants "subsequently billed for attorney fees in excess of $4,000"; (6) advised plaintiff to sign the 7 November 1984 consent decree in which plaintiff "waived the right to share in the estate and life estate of [her former husband] upon his death [when] the majority of the marital property was titled in the name of [her former husband]"; and (7) waived plaintiff's right to discovery in a consent decree dated 2 June 1988, thus permitting "opposing counsel to suppress evidence that would legally have been required to be revealed."
On the fraud claim, plaintiff, incorporating the previous allegation regarding defendants' alleged negligent conduct, further alleges that she "has relied to her detriment on the misrepresentation, misinformation, erroneous legal counsel and advice given to her by the Defendants during the course of their representation of her" and that she has suffered "economic[,] . . . emotional and mental" damages as a proximate result of defendants' misrepresentations. On the breach of fiduciary duty claim, plaintiff alleges that defendants' actions as set forth in the negligence claim also "constitute a breach of Defendants' fiduciary duty owed to the plaintiff."
Defendants moved to dismiss the complaint, pursuant to Rule 12(b)(6), and the trial court, on 24 September 1992, allowed defendants' motion and dismissed the complaint.
The issues presented are whether (I) all claims arising out of an attorney-client relationship are governed by the same statute of limitations; and (II) the trial court erred by dismissing plaintiff's complaint pursuant to Rule 12(b)(6) for failure to state a claim.
I
Defendants argue that because all the actions plaintiff contends caused her damage are in the nature of legal malpractice, the relevant statute of limitation is set by N.C. Gen. Stat. ยง 1-15(c
Page 1 2 3 4 5 6 North Carolina Personal Injury Attorneys
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