WILLIAM C. TEAGUE,
Plaintiff,
v
.
CHARLES RANDALL ISENHOWER and the partnership, SIGMON, SIGMON and
ISENHOWER,
Defendants.
Moore & Brown, by B. Ervin Brown, II, for plaintiff-appellant.
Eisele, Ashburn, Greene & Chapman, P.A., by Douglas G. Eisele,
for defendants-appellees.
WYNN, Judge.
By this appeal, plaintiff, William C. Teague, contends that
the trial court erroneously dismissed his legal malpractice action
under Rule 12(b)(6). We affirm the trial court's order of
dismissal.
In December 1995, Mr. Teague retained defendants, Charles R.
Isenhower and his law firm--Sigmon, Sigmon and Isenhower, to handle
his divorce action. In October 1996, the trial court entered a
judgment of divorce and left pending the equitable distribution,
alimony and child support claims. In 1998, the trial court entered
an equitable distribution judgment and alimony award in favor of
Mrs. Teague. Through his attorney (Mr. Isenhower), Mr. Teague
appealed the alimony award; ultimately, this Court affirmed theaward in a decision filed on 30 December 1999. See Teague v.
Teague, 136 N.C. App. 442, 529 S.E.2d 704 (1999). During the
pendency of that appeal, Mrs. Teague moved for contempt against Mr.
Teague alleging a failure to pay alimony; that motion resulted in
the execution of a consent order by the trial court and the
parties. Mr. Teague discharged Mr. Isenhower in January 2000.
In October 2001, Mr. Teague brought an action against Mr.
Isenhower and his law firm alleging a failure to meet the standard
of professional legal practice in the representation of Mr. Teague
on the equitable distribution and alimony claims. He filed an
amended complaint on 28 December 2001. From the trial court's
dismissal of his action under Rule 12(b)(6), Mr. Teague appeals.
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“An order granting a motion to dismiss is erroneous if the
complaint, liberally construed, shows no insurmountable bar to
recovery. Dismissal is generally precluded unless plaintiff can
prove no set of facts to support the claim for relief. For
purposes of a motion to dismiss, the allegations in the complaint
must be treated as true, and the complaint is sufficient if it
supports relief on any theory. Under the notice theory of pleading
of our Rules of Civil Procedure a complaint should not be dismissed
merely because it amounts to a 'defective statement' of a good
cause of action.” Jenkins v. Wheeler, 69 N.C. App. 140, 143, 316
S.E.2d 354, 356 (1984).
Plaintiff's amended complaint alleges defendants committed
legal malpractice in their handling of the equitable distributionand alimony claims attendant to plaintiff's divorce.
(See footnote 1)
In
particular, plaintiff alleges defendants “failed to conduct formal
discovery, when formal discovery was necessary and beneficial to
plaintiff's case; failed to communicate with plaintiff in crucial
matters, and to heed plaintiff on those occasions when there was
communications; failed to diligently investigate the factual basis
of the case; and failed to present evidence and claims beneficial
to his client.” As a result, plaintiff alleges he is entitled to
damages in excess of $10,000.
The dispositive issue on appeal is whether the statute of
limitations barred plaintiff's legal malpractice claims. “It is
proper under a Rule 12(b)(6) motion to determine whether the
applicable statute of limitations bars the plaintiff's claims if
such bar appears on the face of the complaint.” State of North
Carolina v. Petree Stockton, L.L.P., 129 N.C. App. 432, 440, 499
S.E.2d 790, 795 (1998). The statute of limitations applicable to
this case is contained in N.C. Gen. Stat. § 1-15(c) (2001) which
provides that actions for “malpractice arising out of the
performance of or failure to perform professional services” must be
brought within three years of the “accrual” of the cause of action.
Specifically, N.C. Gen. Stat. § 1-15(c) provides:
Except where otherwise provided by statute, acause 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 there
is bodily injury to the person, economic or
monetary loss, or a defect in or damage to
property which originates under circumstances
making the injury, loss, defect 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 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....
Thus, N.C. Gen. Stat. § 1-15(c) prescribes that a malpractice
claim accrues “at the time of the occurrence of the last act of the
defendant giving rise to the cause of action.”
An analysis of plaintiff's complaint reveals the actions
complained of refer to defendants' trial court representation of
plaintiff on the equitable distribution and alimony claims.
A. Equitable Distribution
In plaintiff's amended complaint, he alleges defendants:
42. ...never issued subpoenas to financial
institutions to investigate the claims of Wife
that are reflected in the Pre-Trial Order in
95 CVD 1363...;
43. ...never made use of information provided
to him by the Plaintiff regarding various
payments Plaintiff made on marital debts for
the benefit of Mrs. Teague;
44. ...never filed an equitable distributionaffidavit in 95 CVD 1363.
On 22 May 1998, the equitable distribution judgment was entered.
Taking these allegations as true and assuming these allegations
constitute a valid claim of legal malpractice, plaintiff's claim is
nevertheless barred by the statute of limitations.
Indeed, the acts of negligence set forth by the plaintiff
relate only to defendants' representation at the trial court level
and plaintiff did not appeal from the equitable distribution
judgment. Thus, the last act of defendants giving rise to a cause
of action relating to defendants' equitable distribution
representation occurred on 22 May 1998. By that date, plaintiff
should have known defendants had allegedly failed to present
certain information or challenge his ex-wife's evidence because of
the findings of fact in the judgment. Accordingly, plaintiff's
legal malpractice claim arising out of the alleged mishandling of
the equitable distribution claim arose on 22 May 1998; therefore,
any legal malpractice claim arising from defendants' trial court
representation of plaintiff should have been filed prior to 22 May
2001. Since plaintiff filed his complaint on 12 October 2001,
after the statute of limitations lapsed, we uphold the trial
court's dismissal of his claims arising from the equitable
distribution action.
B. Alimony
In plaintiff's amended complaint, he alleges:
39. ...Plaintiff advised Defendant Isenhower
that Wife had agreed with Plaintiff that she
would waive alimony in return for which
Plaintiff had agreed he would not pursue hisright to claim custody of the minor child of
the parties, and child support;
48. ...Prior to September 3, 1997, Plaintiff
had provided Defendant Charles Randall
Isenhower with allegations of fault against
Wife in relation to her claim for alimony.
More particularly, Plaintiff informed
Isenhower that Wife had, for the past year,
refused conjugal relations with him.
49. ...Prior to September 3, 1997, Plaintiff
had provided information regarding his
financial status to Defendant Isenhower, in
relation to Wife's claim for alimony;
50. ...On information and belief, Defendant
conducted no formal written discovery or
depositions regarding the fault claims of
Wife, as set forth in her Answer and
Counterclaims;
51. ...Defendant Isenhower never presented
evidence of Plaintiff's ex-wife's agreement
with Plaintiff not to seek alimony, nor did
Isenhower ever file a motion for summary
judgment on the issue of alimony based on said
agreement;
52. ...The judgment entered September 26,
1997, does not reflect that any evidence of
fault on the part of Wife was presented by
counsel for the Plaintiff at that hearing,
including evidence of Wife having denied
Plaintiff his conjugal rights for more than
one year preceding the hearing. Upon
information and belief, no such evidence was
presented;
53. Defendant ... did not appeal the Alimony
Judgment entered September 26, 1997, nor did
he seek to have the Judgment modified or
amended, so that the Plaintiff's fault
allegations could be considered and ruled upon
by the court;
55. An Alimony Judgment was entered on August
6, 1998, there having been an Alimony Hearing
on June 30 and July 1 of 1998;
56. At the June/July Alimony Hearing,
Defendant Isenhower failed to presentimportant evidence that would have
demonstrated the ability of the Plaintiff to
pay alimony to Defendant, and failed to
investigate the resources of the Defendant.
By way of example only, Defendant ... left
many portions of the form affidavit regarding
Plaintiff's financial status blank, and did
not inquire of Plaintiff as to information
necessary to present his financial status
properly to the court. Perhaps most
importantly, largely due to the failure of
defendant...to present evidence distinguishing
Plaintiff's recurrent sources of income from
withdrawals from Plaintiff's retirement
accounts, the Court erroneously concluded that
Plaintiff understated his income on his
affidavit. This resulted in the Court
concluding that Plaintiff's income was much
greater than was actually the case;
57. A Notice of Appeal of the Alimony
Judgment entered on July 1, 1998 was filed by
Defendant Isenhower in July 1998, subsequent
to the Hearing on Alimony, and prior to the
entry of the Judgment in August.
In its 6 August 1998 alimony judgment, the trial court incorporated
its 27 September 1997 judgment that “Plaintiff did willfully bring
the parties cohabitation to an end without just cause or
provocation....” Taking plaintiff's allegations as true and again,
assuming these allegations constitute a valid claim of legal
malpractice, plaintiff's claims arising from defendants'
representation in the alimony action are nonetheless barred by the
statute of limitations.
As with the legal malpractice claims relating to the equitable
distribution action, the acts of negligence set forth by the
plaintiff concerning the alimony action relate only to defendants'
representation at the trial court level. Moreover, although
defendants represented plaintiff in the appeal of the alimonyaward, plaintiff makes no contention that defendants failed to
properly represent him in the appeal of his case. Thus, the last
act of defendants giving rise to a cause of action relating to
defendants alimony representation occurred on 6 August 1998. By
that date, plaintiff should have been aware of defendants' failure
to present accurate information regarding plaintiff's and his ex-
wife's financial status. Since plaintiff filed his complaint on 12
October 2001, after the statute of limitation lapsed on 6 August
2001, we uphold the trial court's 12(b)(6) dismissal of his claims
arising from the equitable distribution action.
(See footnote 2)
We have reviewed plaintiff's remaining arguments and find them
to be without merit. Accordingly, the trial court's order
dismissing plaintiff's cause of action is,
Affirmed.
Judges TIMMONS-GOODSON and HUDSON concur.
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