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Home / Courts / N.C. Court of Appeals Unpublished / Tort/Negligence — Attorneys – Legal Malpractice Claim – Civil Practice – Statute of Limitations – Last Negligent Act

Tort/Negligence — Attorneys – Legal Malpractice Claim – Civil Practice – Statute of Limitations – Last Negligent Act

A 29 September 2014 opinion letter from the defendant-attorney advised the plaintiff property owners’ association to stop performing its duties under a Clubhouse Dues Agreement—collecting homeowners’ dues and remitting them to the clubhouse owner. Following this advice resulted in a $7 million judgment against plaintiff. Although plaintiff did not file its legal malpractice complaint until 30 April 2020, plaintiff alleges that, even after this court held on 5 September 2017 that the Clubhouse Dues Agreement was valid and enforceable, the attorney, who continued to represent plaintiff, “never recommended” that plaintiff “begin assessing, billing and collecting Clubhouse Dues from Owners,” nor advised plaintiff “of the legal and economic risks and/or consequences of failing to do so.” As a result, plaintiff’s complaint does not show that its legal malpractice claim is time-barred.

We reverse the trial court’s order granting defendants’ motion to dismiss.

Plaintiff alleged, among other points, that defendants were negligent in their legal representation of plaintiff after this court “issued its opinion on September 5, 2017” by failing to advise plaintiff to take remedial action with respect to the Clubhouse Dues. Taking plaintiff’s allegations as true, the last act of defendants giving rise to the cause of action may have occurred as late as 5 September 2017.

Plaintiff’s complaint was filed on 30 April 2020, which is within the three-year statute of limitations period. Based on plaintiff’s pleadings, it was improper for the trial court to conclude that plaintiff had failed to state a claim upon which relief can be granted. Accordingly, we conclude that plaintiff’s claim may not be barred by G.S. § 1-15(c) and was improperly dismissed pursuant to N.C. R. Civ. P. 12(b)(6).

Reversed and remanded.

Concurrence

(Tyson, J.): Continuing representation of a client by an attorney following the last act of negligence does not extend the statute of limitations.

Plaintiff alleges a last act of defendants as late as 5 September 2017, which is within the statute of limitations prescribed by G.S. § 1-15(c).

The majority’s opinion concludes plaintiff’s claim may not be barred by § 1-15(c) because of the inclusion of this date in pleading. Nothing precludes the revisiting of the issue upon further proceedings upon remand.

Smoky Mountain Country Club Property Owners Association v. Dungan (Lawyers Weekly No. 012-089-22, 14 pp.) (John Arrowood, J.) (John Tyson, J., concurring in the result only) Appealed from Swain County Superior Court (William Coward, J.) Preston Odom, John Buric and John Brickley for plaintiff; Cynthia Van Horne and Karen Chapman for defendants. 2022-NCCOA-144

 


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