Garrett v. Winfree, 9418SC452

• Decision Date: 07 November 1995
• Docket Number: No. 9418SC452,9418SC452
• Citation: 120 N.C.App. 689,463 S.E.2d 411
• Court: North Carolina Court of Appeals
• Parties: Harry Frank GARRETT v. Herman WINFREE, Individually and as General Partner, and Charles Winfree, Individually and as General Partner, and Winfree and Winfree, a General Partnership.

Page 411

463 S.E.2d 411

120 N.C.App. 689

Harry Frank GARRETT v. Herman WINFREE, Individually and as General Partner, and Charles Winfree, Individually and as General

Partner, and Winfree and Winfree, a

General Partnership.

No. 9418SC452.

Court of Appeals of North Carolina.

Nov. 7, 1995.

Michael A. Swann, Lexington, for plaintiff-appellant.

Adams Kleemeier Hagan Hannah & Fouts, L.L.P. by Margaret Shea Burnham and David S. Pokela, Greensboro, for defendant-appellees.

McGEE, Judge.

This is a legal malpractice claim arising out of a workers' compensation case in which defendants, Herman Winfree and Charles Winfree, represented plaintiff, Harry Frank Garrett.

On 7 December 1975, plaintiff was injured in a work-related accident when he fell from a roof. As a result of the fall, plaintiff's left knee was broken into fragments. Plaintiff originally entered into an agreement for compensation with his employer. However, a disagreement developed and in May 1979, plaintiff retained defendant Herman Winfree to represent him in his workers' compensation case. A hearing on plaintiff's claim was held before the Industrial Commission and, among other things, plaintiff was awarded permanent partial disability benefits on 14 April 1981 for injury to his left leg. Plaintiff received compensation for this injury until mid-February of 1982.

Over the years, plaintiff continued to experience medical difficulties. He underwent a total left knee replacement in March 1982, a fusion of the left knee in April 1986, and finally his left leg had to be amputated in December 1987. In March 1989, he received a permanent partial disability rating for his right leg, which subsequently worsened and was later amputated in 1991. During these years, plaintiff alleged he contacted defendants to inquire about filing for additional workers' compensation claims and that defendants advised him to wait and not pursue any further claims.

In the fall of 1989, defendant Charles Winfree attempted to reopen plaintiff's workers' compensation claim at plaintiff's request. By letter dated 13 November 1989, defendant Charles Winfree reviewed with plaintiff the background and status of his case and advised him that an attempt to reopen his case would likely be barred by the two-year statute of limitations on workers' compensation change of condition claims. However, since plaintiff claimed he had not received the Industrial Commission's Form 28B Report of Compensation and Medical Paid, which is required when the last compensation check is issued, defendant agreed to pursue the matter. In January 1990 defendant filed requests for hearings for compensation for injuries to the right leg and to reopen the claim for injuries to the left leg. On 20 September 1990, Commissioner Gregory M. Willis entered an Opinion and Award refusing to re-open the case based on the two-year statute of limitations under N.C.Gen.Stat. § 97-47.

Plaintiff filed this negligence action against defendants on 9 September 1993. Defendants timely filed a motion to dismiss and answer with plaintiff filing a reply. Defendants filed a motion for judgment on the pleadings on 7 January 1994. On 24 January 1994, Judge Thomas Seay, Jr. entered an order granting defendants' motion and dismissing the action with prejudice. From this order, plaintiff appeals.

Plaintiff contends the pleadings in this case were sufficient to withstand defendants' motion for judgment on the pleadings and that a careful review of the matter will show the defendants have failed to meet the stringent standards for a Rule 12(c) motion. We disagree and for the reasons stated below, we affirm the trial court's decision to grant defendants' 12(c) motion.

A motion for judgment on the pleadings is authorized by Rule 12(c) of the North Carolina Rules of Civil Procedure. N.C.Gen.Stat. § 1A-1, Rule 12(c) (1990). "The rule's function is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit." Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). Where all the material allegations of fact are admitted, only questions of law remain and no question of fact is left for jury determination, a motion for judgment on the pleadings is proper. Id. Judgment on the pleadings is improper where the pleadings do not resolve all the factual issues. Id.

Since a judgment on the pleadings is a summary procedure with the decision being final, these motions must be carefully examined to ensure that the non-moving party is not prevented from receiving a full and fair hearing on the merits. Id. The standard is strict and the moving party must show that, when considering the pleadings in the light most favorable to the non-moving party, "no material issue of facts exists and that he is clearly entitled to judgment." Id. "When a party moves for judgment on the pleadings, he admits ... [t]he truth of all well-pleaded facts in the pleading of his adversary ... and the untruth of his own allegations in so far as they are controverted by the pleading of his adversary." Gammon v. Clark, 25 N.C.App. 670, 671, 214 S.E.2d 250, 251 (1975) (quoting Erickson v. Starling, 235 N.C. 643, 656, 71 S.E.2d 384, 393 (1952)).

In support of his contention that judgment on the pleadings was improper, plaintiff makes four arguments for our consideration: (1) he has three separate grounds for recovery for professional negligence; (2) his claim for negligence is not barred by the statute of limitations or repose found in the professional malpractice limitations statute; (3) the statute of repose provision of N.C.Gen.Stat. § 1-15(c) is unconstitutional; and (4) defendants should be estopped from asserting a statute of limitations or repose defense.

Plaintiff's first argument is that he can sustain a claim for professional negligence based on the following: (1) defendant Herman Winfree failed to file to re-open plaintiff's case based on a change of condition even though he knew or should have known that plaintiff's condition had worsened; (2) defendant Herman Winfree repeatedly assured plaintiff that "everything was alright" and that he would "take care of it" thereby inducing plaintiff to wait instead of taking action to receive additional workers' compensation benefits; (3) plaintiff's injury to his right leg would have been compensable under G.S. § 97-47 but the claim was improperly abandoned by both of the defendants. In considering the pleadings in a light favorable to plaintiff, even if there were a viable cause of action for professional negligence, that action is barred by the statutes of limitations and repose.

N.C.Gen.Stat. § 1-15(c) (1983) provides:

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 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: Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.

G.S. § 1-15(c) (1983). This statute creates, among other things, a statute of repose which is not measured from the date of injury, but accrues on the date of the last act of the defendant giving rise to the cause of action or "from substantial completion of some service rendered by defendant." Hargett v. Holland, 337 N.C. 651, 654, 447 S.E.2d 784, 787 (quoting Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 234 n. 3, 328 S.E.2d 274, 276-77 n. 3 (1985), reh'g denied, 338 N.C. 672, 453 S.E.2d 177 (1994)).

In Hargett v. Holland, 337 N.C. 651, 447 S.E.2d 784 and McGahren v. Saenger, 118 N.C.App. 649, 456 S.E.2d 852 (1995), defendant's disc. review denied, 340 N.C. 568, 460 S.E.2d 318, plaintiffs' disc. review denied and appeal dismissed, 340 N.C. 568, 460 S.E.2d 319 (1995), our appellate courts examined the question of what constitutes the last act of defendant which gives rise to the legal action and we find these cases dispositive as to this case. In Hargett, our Supreme Court considered the case of an attorney who drafted a will in 1978. Thirteen years later, the attorney was sued for negligently drafting the 1978 will. The Court concluded that, under these particular circumstances, the attorney had no continuing legal duty to correct the will. Hargett, 337 N.C. at 655, 447 S.E.2d at 788. The attorney had entered into a contract "to prepare a will after which defendant [attorney] was an attesting witness to the will, defendant's duty was simply to prepare and supervise the execution of the will. This arrangement did not impose on defendant a continuing duty ... to review or correct the will." Id. The Court further stated "defendant's last act giving rise to the claim occurred when he supervised the execution of the will on 1 ...