Attorneys – Tort/Negligence – Legal Malpractice Claim – Statutes of Limitations & Repose – Domestic Relations – Divorce

Button v. McKnight. (Lawyers Weekly No. 11-16-0434, 10 pp.) (Sanford L. Steelman Jr., J.) Appealed from Wake County Superior Court. (Kenneth C. Titus, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: After the client’s first wife filed a motion in 2008 for relief from their 2005 divorce judgment, attorney McClain from the defendant-law firm allegedly assured the client that his divorce was valid and that he could go ahead with his second wedding. Nevertheless, the date for determining the timeliness of the client’s legal malpractice claim against attorney McKnight – who represented the client in the divorce – was the date on which McClain filed a response to the first wife’s motion for relief: May 16, 2008.

The trial court granted the first wife’s motion on Dec. 3, 2008, and the client filed this legal malpractice action until Aug. 18, 2009, more than three years after McKnight’s last act of alleged negligence and more than one year after the client was put on notice of such negligence.

The trial court correctly dismissed the client’s action against attorney McKnight.

G.S. 1-15(c) provides for a minimum three-year period from occurrence of the last act; and an additional one-year-from-discovery period for injuries “not readily apparent” subject to a four-year period of repose commencing with defendant’s last act giving rise to the cause of action. McKnight’s last act which gave rise to plaintiff’s claim of negligence occurred on Aug. 19, 2005, when he obtained the divorce judgment that was subsequently vacated.  

Plaintiff filed his complaint against McKnight on Aug. 18, 2009. Thus, plaintiff filed this action outside of the three-year statute of limitations.

We must therefore determine whether plaintiff was entitled to the additional one-year-from-discovery period to file his complaint. The one-year-from-discovery exception is subject to a four-year absolute or outer time limit within which plaintiff must bring an action for malpractice. This outer time limit begins with the last act of the defendant giving rise to the cause of action.

For purposes of our review, we presume that the injury originated under circumstances making the injury or loss not readily apparent to plaintiff at the time of its occurrence. Plaintiff filed this action against McKnight on Aug. 18, 2009, just before the absolute four-year period expired.

Plaintiff argues that “he didn’t know he’d suffered any invasion of a legally protected right – that any negligence had occurred – until Dec. 3, 2008,” the date the trial court set aside the divorce judgment. Plaintiff asserts that this is the date of discovery under G.S. § 1-15(c).

Defendants contend that the trial court correctly determined that plaintiff discovered or should reasonably have discovered his injury by May 16, 2008, the date his attorney responded to the first wife’s motion to set aside the divorce judgment. The issue presented in this case is identical to that in Thorpe v. DeMent, 69 N.C. App. 355, 317 S.E.2d 692, aff’d per curiam, 312 N.C. 488, 322 S.E.2d 777 (1984), and our ruling in that case is determinative here.

Here, on April 17, 2008, the first wife filed a motion to set aside the 2005 divorce judgment. After being served with the motion, plaintiff inquired about the validity of the Aug. 19, 2005 divorce judgment. On May 16, 2008, attorney McClain filed an answer on behalf of plaintiff.

We hold that plaintiff was put on notice of a possible cause of action for legal malpractice at the latest on May 16, 2008. As of that time, plaintiff had before him the facts, or access to the facts, necessary for him to discover attorney McKnight’s alleged negligence and the invalidity of the divorce judgment.

Plaintiff had constructive knowledge of all of the essential elements of a complete malpractice cause of action. Plaintiff should have discovered his injury on or before May 16, 2008.

Plaintiff filed his complaint against defendants on Aug. 18, 2009, more than one year after the discovery of attorney McKnight’s alleged negligence. Thus, plaintiff has failed to demonstrate that he timely filed his complaint against attorney McKnight under the one-year-from-discovery provision pursuant to G.S. § 1-15(c).

The trial court properly dismissed plaintiff’s complaint against McKnight.

Affirmed.