 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Misenheimer v. Burris4/5/2005
n this action until 12 April 2000, five years after the relationship between defendant and Ms. Misenheimer ended and two years after the statute of limitations expired in 1998.
Guided by the aforementioned statutory and case law, we conclude that in the present case, the statute of limitations bars plaintiff's cause of action for criminal conversation. Thus, the trial court erred by denying defendant's motion for directed verdict. We reverse the trial court's order and remand this case to the trial court for proceedings not inconsistent with this opinion.
REVERSED.
Judge GEER concurs.
Judge TYSON dissents.
TYSON, Judge dissenting.
The jury specifically found that plaintiff filed his complaint against defendant "within three years after the time the bodily harm became apparent or reasonably to have become apparent to . . . plaintiff, whichever occurred first" after receiving an instruction from the trial court on the discovery rule. The majority's opinion correctly states the sole issue before this Court is whether the statute of limitations may be tolled until "discovery" by the aggrieved party for claims of criminal conversation. The discovery rule applies to this cause of action. I respectfully dissent.
I. The Majority's Holding
The majority's opinion contends the discovery rule is inapplicable to claims of criminal conversation due to: (1) the statutory design of N.C. Gen. Stat. § 1-52; and (2) this Court's holding in Coachman v. Gould, 122 N.C. App. 443, 470 S.E.2d 560 (1996). The majority's opinion concludes the discovery rule should not be applied to an action for criminal conversation due to it being specifically identified in N.C. Gen. Stat. § 1-52(5) as a claim to which a three year statute of limitations applies. Our appellate courts have extended the discovery rule to other subsections of N.C. Gen. Stat. § 1-52. Robertson v. City of High Point, 129 N.C. App. 88, 91, 497 S.E.2d 300, 302 (the discovery rule could be applied to claims of trespass specifically enumerated in N.C. Gen. Stat. § 1-52(3)), disc. rev. denied, 348 N.C. 500, 510 S.E.2d 654, 654-55 (1998); Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 492-93, 329 S.E.2d 350, 354 (1985) (considering application of the discovery rule to N.C. Gen. Stat. § 1-52(1)); Black v. Littlejohn, 312 N.C. 626, 637, 325 S.E.2d 469, 477 (1985) (application of the discovery rule to injuries caused by the negligence of another); Wilson v. McLeod Oil Co., 327 N.C. 491, 507-08, 398 S.E.2d 586, 593-94 (1990) (N.C. Gen. Stat. § 1-52(5) applies three year statute of limitations to negligence actions), reh'g denied, 328 N.C. 336, 402 S.E.2d 844 (1991). For the reasons discussed below, I believe N.C. Gen. Stat. § 1-52(16) also applies to N.C. Gen. Stat. § 1-52(5).
The statute of limitations for criminal conversation is three years, as provided by statute and case law. As the trial court stated in its ruling, my research fails to disclose any precedent that disallows application of the discovery rule to the tort of criminal conversation. The majority cites Coachman v. Gould as authority for the preclusion of N.C. Gen. Stat. § 1-52(16) fromclaims of criminal conversation. In Coachman, this Court determined that the plaintiff's action for criminal conversation was barred by the three year statute of limitations. 122 N.C. App. at 445-46, 470 S.E.2d at 562-63. However, in Coachman this Court did not address the possibility of the three year statute of limitations being tolled by the discovery rule. Id.
II. The Discovery Rule
The discovery rule is limited to "personal injury or physical damage to claimant's property." N.C.
Page 1 2 3 4 5 6 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|