Appeal by plaintiff from judgment dated 17 December 2002 by
Judge Timothy S. Kincaid in Catawba County Superior Court. Heard
in the Court of Appeals 19 November 2003.
Thomas C. Ruff, Jr.; and Richard H. Tomberlin, for plaintiff-
appellant.
Poyner & Spruill LLP, by E. Fitzgerald Parnell, III and
Rebecca B. Wofford, for defendant-appellees.
BRYANT, Judge.
Billy Wendell Bolton (plaintiff) appeals a judgment dated 17
December 2002 dismissing with prejudice his legal malpractice
action against John W. Crone, III (defendant Crone) and the law
firm of Gaither, Gorham & Crone (collectively defendants).
In his complaint filed on 11 September 2002, plaintiff alleged
the following: He retained defendants for legal services in
connection with his purchase of land in Catawba County, North
Carolina. Plaintiff gave a copy of the purchase contract to
defendant Crone and communicated to him plaintiff's intent to usethe land as a commercial site for automobile sales. Defendant
Crone failed to advise plaintiff before the closing of the real
estate transaction, conducted on 12 February 1999, that the subject
land was restricted to residential use only.
In response, defendants filed a motion for judgment on the
pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) or
dismissal for failure to state a claim upon which relief can be
granted under Rule 12(b)(6). In support of their motion,
defendants attached (1) a complaint and motion filed on 6 September
2001 for preliminary injunction by G. Scott Lail and others against
plaintiff and (2) plaintiff's answer to the Lail complaint and
motion.
In the Lail complaint and motion, paragraph 8 alleged:
“[Plaintiff] was previously informed on two occasions that his use
of the property was restricted to residential use only. . . . by
way of letters sent to [plaintiff] first on April 13, 1999 and
secondly on April 26, 2001.” In his answer to the Lail complaint
and motion, plaintiff stated: “Answering the allegations of
Paragraph 8, it is admitted that certain individuals have advised
[plaintiff] of their belief that he is prohibited from using the
subject property for any purpose other than residential.”
The trial court found plaintiff's action was filed
approximately seven months after the expiration of the statute of
limitations, which began to run on the date of closing, and
dismissed the action with prejudice. The trial court did not state
whether the dismissal was based on Rule 12(c) or Rule 12(b)(6).
_________________________
The sole issue on appeal is whether the trial court properly
dismissed plaintiff's action.
The basis of defendants' motion was that the complaint failed
to state an actionable claim upon which relief could be granted due
to the expiration of the statute of limitations.
See Reunion Land
Co. v. Village of Marvin, 129 N.C. App. 249, 250, 497 S.E.2d 446,
447 (1998) (“'[a] statute of limitations can be the basis for
dismissal on a Rule 12(b)(6) motion if the face of the complaint
discloses that plaintiff's claim is so barred'”) (citation
omitted). Because defendants presented the complaint and reply
from the Lail action, which were not excluded by the trial court,
the motion is treated as one for summary judgment.
See N.C.G.S. §
1A-1, Rule 12(b) (2001) (“on a motion . . . to dismiss for failure
of the pleading to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary
judgment”).
(See footnote 1)
A motion for summary judgment is to be granted if
“there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law.” N.C.G.S. §
1A-1, Rule 56(c) (2001).
A legal malpractice action is subject to a three-year statute
of limitations. N.C.G.S. § 1-15(c) (2001);
Garrett v. Winfree, 120
N.C. App. 689, 692, 463 S.E.2d 411, 414 (1995). The action
“accrue[s] at the time of . . . the last act of the defendantgiving rise to the cause of action.” N.C.G.S. § 1-15(c). However,
if the claimant's loss is
not readily apparent to the claimant at the
time of its origin, and . . . is discovered or
should reasonably be discovered by the
claimant two or more years after . . . 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.
Id.
The crucial question in the instant case is whether
plaintiff's answer to paragraph 8 of the Lail complaint constituted
an admission to being informed of the restrictive covenants by the
first letter sent on 13 April 1999.
Denials [to a pleading]
shall fairly meet the
substance of the averments denied[, and that
w]hen a pleader intends in good faith to deny
only a part of or a qualification of an
averment, he
shall specify so much of it as is
true and material and shall deny only the
remainder.
N.C.G.S. § 1A-1, Rule 8(b) (2001) (emphasis added). “Averments in
a pleading to which a responsive pleading is required, other than
those as to the amount of damage, are admitted when not denied in
the responsive pleading.” N.C.G.S. § 1A-1, Rule 8(d) (2001). An
answer, such as that of plaintiff to the Lail complaint, is a
required responsive pleading. N.C.G.S. § 1A-1, Rule 7(a) (2001).
The requirement of denials in Rule 8(d) applies to only material or
relevant averments.
Connor v. Royal Globe Insur. Co., 56 N.C. App.
1, 6, 286 S.E.2d 810, 813 (1982).
In this case, the Lail complaint specifically alleged
plaintiff had notice of the restrictive covenants by two letters,
one of which was sent to plaintiff on 13 April 1999. At least atthe time plaintiff received the Lail complaint, plaintiff had
reason to question the existence of restrictive covenants on
commercial development. The averment is material because, as this
case itself shows, the reply to the averment affected the issue of
plaintiff's notice of his cause of action against defendants and
consequently the running of the statute of limitations in this
case.
See N.C.G.S. § 1-15(c). Plaintiff failed to make a specific
denial to the receipt of the letters, and thus the averment was
deemed admitted.
See N.C.G.S. § 1A-1, Rule 8(b), (d);
Pierson v.
Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 634, 540
S.E.2d 810, 815 (2000) (“'[a]nything that a party to the action has
done, said or written, if relevant to the issues and not subject to
some specific exclusionary statute or rule, is admissible against
him as an admission'”) (citations omitted). The malpractice action
accrued at the time of the 12 February 1999 closing, the last act
of defendant giving rise to the cause of action, and the action ran
on 12 February 2002.
See N.C.G.S. § 1-15(c). Because of the
expiration of the statute of limitations, the trial court properly
granted defendants' motion for summary judgment and dismissed with
prejudice plaintiff's 11 September 2002 complaint.
Affirmed.
Judges CALABRIA and ELMORE concur.
Footnote: 1