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Civil Practice – Statute of Limitations – Continuing Wrong Doctrine – Inapplicable – Domestic Relations – Wage Garnishment – Tort/Negligence

Civil Practice – Statute of Limitations – Continuing Wrong Doctrine – Inapplicable – Domestic Relations – Wage Garnishment – Tort/Negligence

Williams v. Rojano (Lawyers Weekly No. 011-078-17, 19 pp.) (Wanda Bryant, J.) Appealed from Wake County Superior Court (G. Bryan Collins Jr., J.) N.C. App.

Holding: Even though plaintiff’s Feb. 9, 2015, complaint alleges that defendants continued to garnish his wages – after he had paid all amounts due and at double the rate allowed by the court order – until April 2013, since the continuing wrong doctrine does not apply, and since plaintiff’s causes of action accrued when the double garnishment began on Sept. 3, 2010, the three-year statute of limitations in G.S. § 1-52 bars plaintiff’s claims of trespass to chattels, conversion, negligence, and U.S. constitutional violations brought pursuant to 42 U.S.C. § 1983.

We affirm the trial court’s grant of defendants’ motion to dismiss.

A cause of action accrues and the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. In order for the continuing wrong doctrine to toll the statute of limitations, the plaintiff must show a continuing violation by the defendant that is occasioned by continual unlawful acts, not by continual ill effects from an original violation.

The double garnishment of plaintiff’s wages that took place each month until April 2013 did not constitute continual violations, but rather continual ill effects of the original garnishment, instituted in order to collect plaintiff’s child support obligation. The garnishment of plaintiff’s wages was a discrete occurrence, despite the arguably cumulative effect of the garnishment (plaintiff alleges he overpaid by about $15,241.95). Certainly the alleged double garnishment was discoverable to plaintiff as soon as defendants initiated income withholding ($309/month) from defendant’s second employer, Penske Logistics, on Sept. 3, 2010, for a total of $618 garnished from plaintiff’s total combined wages each month.

Applying the continuing wrong doctrine under these facts would allow plaintiffs to bring claims decades after their accrual in order to contest any alleged wrongful wage garnishment in child support actions. The continuing wrong doctrine does not apply.

Where plaintiff has adequate state remedies, plaintiff has no direct cause of action to enforce the rights protected in N.C. Const. art. I.

Since defendants were charged with enforcing the trial court’s child support orders and were authorized to institute wage withholding against plaintiff, this relationship is akin to that of debtor-creditor, a relationship which courts have declined to categorize as fiduciary. Because no fiduciary relationship existed between plaintiff and defendants, the trial court correctly dismissed plaintiff’s claim for breach of fiduciary duty/constructive fraud.



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