The North Carolina Court of Appeals sympathized with Plaintiff Dara Lynn Hackos but confirmed, again, that the statute of limitation is unyielding and applies in all cases, even ones with merit and sympathy. Dara Lynn Hackos v. Goodman, Allen & Filetti, PLLC.
Here is a summary of Ms. Hackos’ legal odyssey, believe it or not:
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August 2001 Ms. Hackos was rear-ended and seriously injured in a Virginia car wreck.
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She hired a VA lawyer to represent her.
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A NC lawyer named David Smith (Smith) convinced her to hire him instead and that he could file her wreck case in NC.
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Smith was wrong - Ms. Hackos wreck case was dismissed for improper venue and it was too late to file in VA.
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Plaintiff hired the VA law firm of Goodman, Allen & Filetti (“GAF”) to file a legal malpractice lawsuit against Smith.
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July 16, 2007 Summary judgment was granted in favor of Smith…case dismissed. Note: GAF allegedly failed to respond to Smith’s motion and didn’t even appear at the summary judgment hearing on her behalf.
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For unknown reasons, Ms. Hackos allowed GAF to continue to represent her after Smith obtained summary judgment.
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October 29, 2007 GAF filed Notice of Appeal of the dismissal to the NC Court of Appeals.
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January 5, 2009 Summary judgment in favor of Smith was confirmed by the NC Court of Appeals.
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December 15, 2011 Ms. Hackos and her new attorney filed a legal malpractice case against GAF alleging, among other things, that GAF ”failed to appear properly” in the action against Smith and that GAF’s negligence was the cause of the dismissal of the suit against Smith. Ms. Hackos also alleged that GAF’s appellate representation was negligent.
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June 2012 NC trial judge granted GAF’s 12(b)(6) motion to dismiss Ms. Hackos’ lawsuit based on the 3 year statute of limitations.
NC has a 3 year statute of limitations for legal malpractice claims. “[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.” NCGS § 1-15(c).
Factors to determine when the “last act of the defendant giving rise to the cause of action” are the contractual relationship between the parties, when the contracted-for services were complete and when the alleged mistakes could no longer be remedied. See Carle v. Wyrick Robbins and related post.
NCGS § 1-15(c) also contains a statute of repose that applies if the loss or damage is “not readily apparent to the claimant at the time of its origin,” such that it is “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,” in which case “suit must be commenced within one year from the date discovery is made,” and still no more than 4 years after the occurrence of the last act of the defendant. Ramboot, Inc. v. Lucas.
Ms. Hackos was on “constructive notice” of the damage on January 5, 2009, the day the Court of Appeals issued its ruling upholding summary judgment in favor of Smith. As such, the 3 year statute of limitations applied to Ms. Hackos’ lawsuit because “at most” approximately a year and a half passed from the last act and date of notice – January 5, 2009.
So, did GAF’s ”last act” occur 3 years before December 15, 2011? If so, case dismissed.
Plaintiff’s counsel argued that the “last act” was the failure to file an appeal to the NC Supreme Court after the January 5, 2009 Court of Appeals’ ruling. The Court of Appeals disagreed noting the Complaint did not allege that Ms. Hackos “requested” GAF to appeal beyond the Court of Appeals’ ruling or had any contractual obligation or authority to do so. As such, the case was time barred because the Court of Appeals determined that the “last act” necessarily occurred before December 15, 2008.
In parting, the Court of Appeals stated:
“We are not without sympathy for Plaintiff’s position, particularly when the allegations of negligence concern the acts and omissions of professionals Plaintiff hired to represent her and protect her legal rights. However, statutes of limitation are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff’s cause of action…”
