Preliminarily, we note that the
trial court properly treated
Mr. Deaton's motion to dismiss as one for summary judgment. On a
motion to dismiss pursuant to 12(b)(6),“if matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56.”
Pinney v. State Farm Mut. Ins. Co., 146
N.C. App. 248, 251, 552 S.E.2d 186, 189 (2001). Since the trial
court considered additional documents in the form of
interrogatories and depositions of plaintiff Britt and Mr. Deaton,
the trial court properly noted that “the matters now before the
Court are for summary judgment.”
On appeal, plaintiffs first contend that the trial court erredby holding that the statute of limitations bars plaintiffs' claim
for professional negligence under N.C. Gen. Stat. § 1-15(c).
Plaintiffs argue that
although Mr. Deaton voluntarily dismissed
their action against Wayne Allen on 1 October 1990, the “last act”
for purposes of the statute of limitations occurred in November of
1993 when plaintiff Britt discovered that the case had been
dismissed. Therefore, plaintiffs contend, the action was timely
filed within the three-year statute of limitations under N.C. Gen.
Stat. § 1-15(c), on 1 October 1996.
(See footnote 1)
We disagree.
N.C. Gen. Stat. § 1-15 (c) which governs legal malpractice
claims, establishes a four-year statute of repose and a three-year
statute of limitations.
McGahren v. Saenger, 118 N.C. App. 649,
652, 456 S.E.2d 852, 853,
appeal dismissed and disc. review denied,
340 N.C. 568, 460 S.E.2d 319 (1995). It provides in pertinent
part:
Except where otherwise provided by statute, a
cause of action for malpractice arising out of
the performance of or failure to perform
professional services shall be deemed to
accrue at the time of the occurrence of the
last act of the defendant giving rise to the
cause of action: Provided that whenever thereis bodily injury to the person, economic or
monetary loss, or a defect in or damage not
readily apparent to the claimant at the time
of its origin, and the injury, loss, defect,
or damage is discovered or should reasonably
be discovered by the claimant two or more
years after the occurrence of the last act of
the defendant giving rise to the cause of
action, suit must be commenced within one year
from the date the discovery is made: Provided
nothing herein shall be construed to reduce
the statute of limitation in any such case
below three years. Provided further, that in
no event shall an action be commenced more
than four years from the last act of the
defendant giving rise to the cause of
action[.]
N.C. Gen. Stat. § 1-15 (c) (2001) (emphasis added).
Thus, the
statute creates a statute of limitations based upon the date of the
“'last act of the defendant giving rise to the cause of action.'”
Id. at 652, 456 S.E.2d at 854(quoting
Sharp v. Teague, 113 N.C.
App. 589, 593, 439 S.E.2d 792, 795 (1994),
disc. review denied, 339
N.C. 730, 456 S.E.2d 771 (1995)).
In the instant case, the facts show that on 1 October 1990,
Mr. Deaton voluntarily dismissed the Allen action without prejudice
under Rule 41(a) which requires that any new action after a
voluntary dismissal, must be re-filed within one year after the
dismissal.
See N.C. Gen. Stat. § 1A-1, Rule 41(a)(2001).
Thus,
the last opportunity for Mr. Deaton to act on the Allen case
occurred on 1 October 1991, which is one year after the case was
voluntarily dismissed and the last date by which Deaton could have
filed plaintiff's case. Since five years had passed before
plaintiffs brought the subject legal malpractice action against Mr.
Deaton in October of 1996, the trial court properly granted summaryjudgment on the grounds that plaintiffs' claims arising under legal
malpractice were barred by the statute of limitations under N.C.
Gen. Stat. § 1-15(c).
Plaintiffs further argue that the trial court erred by
granting summary judgment as to his claim for fraud because the
statute of limitations for fraud claims are governed by the
statute
of limitations under N.C. Gen. Stat. § 1-52(9). We disagree
because the plaintiffs' allegations of fraud are in essence claims
of legal malpractice which are governed by the three-year statute
of limitations under N.C. Gen. Stat. § 1-15(c).
The elements of fraud are “'(1) false representation or
concealment of a material fact, (2) reasonably calculated to
deceive, (3) made with intent to deceive, (4) which does not in
fact deceive, (5) resulting in damage to the injured party.'”
McGahren, 118 N.C. App. at 654, 456 S.E.2d at 855 (quoting
Ragsdale
v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)).
In the instant case, plaintiffs' claim for fraud alleges that
(1) Mr. Deaton failed to accept or return calls, (2) Mr. Deaton
failed to discuss the cause of action with plaintiff, (3) Mr.
Deaton dismissed the case on 1 October 1990, without the knowledge
or consent of plaintiff, and (4) that he concealed and did not
disclose the legal effect of a dismissal with prejudice. Clearly,
the allegations set forth in plaintiffs' complaint are nothing more
than ordinary claims of legal malpractice, which, as stated above,
are barred by N.C. Gen. Stat. § 1-15(c). This assignment of error
is therefore overruled. In their last assignment of error, plaintiffs contend that the
trial court erred by dismissing its claim for constructive fraud.
We disagree.
“In order to maintain a claim for constructive fraud,
plaintiffs must show that they and defendants were in a
'relationship of trust and confidence . . .[which] led up to and
surrounded the consummation of the transaction in which defendant
is alleged to have taken advantage of his position of trust to the
hurt of plaintiff.'”
Barger v. McCoy Hillard & Parks, 346 N.C.
650, 666, 488 S.E.2d 215, 224 (1997) (citation omitted).
“Constructive fraud differs from actual fraud in that 'it is based
on a confidential relationship rather than a specific
misrepresentation.'”
Id. (quoting
Terry v. Terry, 302 N.C. 77, 85,
273 S.E.2d 674, 678-79 (1981)). With this requirement, there must
be an allegation that defendant sought to benefit himself.
Id.
“A claim of constructive fraud based upon a breach of fiduciary
duty falls under the ten-year statute of limitations contained in
N.C. Gen. Stat. § 1-56.”
Nationsbank of N.C. v. Parker, 140 N.C.
App. 106, 113, 535 S.E.2d 597, 602 (2000).
In the instant case, plaintiffs' claim for constructive fraud
alleges that Mr. Deaton: (1) failed to prepare or settle the case,
(2) that Mr. Deaton dismissed the case without plaintiffs'
knowledge; (3) that he concealed the dismissal from plaintiffs and
that he made unspecified misrepresentations to plaintiffs about the
case. However, the plaintiffs failed to allege that Mr. Deaton
took advantage of his position of trust for the purpose ofbenefitting himself. Thus, plaintiffs' claim for constructive
fraud must fail. Moreover, as stated previously, these allegations
are no more than claims of ordinary legal malpractice, which as we
have stated, are barred by the statute of limitations. This
assignment of error is overruled.
In sum, we affirm the judgment of the trial court.
Affirmed.
Judges WYNN and TYSON concur.
Footnote: 1