Southeastern Hospital Supply Corp. v. Clifton & Singer , 110 N.C. App. 652 ( 1993 )

ARNOLD, Chief Judge.

The test on a Rule 12(b)(6) motion is whether the complaint is legally sufficient. Tennessee v. Environmental Management Comm’n, 78 N.C. App. 763, 765, 338 S.E.2d 781, 782 (1986). In ruling upon such motion, the trial court must view the allegations of the complaint as admitted and on that basis must determine as a matter of law whether the allegations state a claim for which relief may be granted. Id.

Plaintiff Southeastern alleged the following in its complaint: Benjamin Clifton, Jr., a partner in the law firm Clifton and Singer, represented Southeastern in an action brought against it by Roane-Barker, Inc. During discovery, Roane-Barker requested production of certain documents. Clifton signed a consent order agreeing to produce the documents. However, Clifton did not produce the documents and ultimately Roane-Barker moved the trial court to compel discovery and for sanctions. On 21 August 1987, the trial court entered an order striking Southeastern’s answer for failure to appropriately respond to discovery. Clifton filed notice of appeal from the order but he did not perfect the appeal.

Southeastern further alleged that, on 1 March 1988, Roane-Barker obtained an entry of default. The case was tried on the issue of damages and a verdict was returned for Roane-Barker. Clifton and the law firm of Clifton and Singer negligently represented Southeastern through 9 March 1988, the date Clifton ceased his representation of Southeastern. As a result of this negligence, Southeastern was precluded from presenting its meritorious defense to Roane-Barker’s claim, and therefore, Southeastern did not prevail in the action and was required to pay damages.

The issue here is whether plaintiff’s action for legal negligence is barred under N.C. Gen. Stat. § 145(c) (1983). A cause of action for legal malpractice accrues at the time of the occurrence of the last wrongful act of the defendant and an action must be commenced within three years of that accrual. Nationwide Mut. Ins. Co. v. Winslow, 95 N.C. App. 413, 415, 382 S.E.2d 872, 873 (1989); see N.C. Gen. Stat. § 1-15(c) (1983). Plaintiff alleged that defendants’ negligent representation continued through 9 March 1988. Taking plaintiff’s allegations as true, defendants’ last wrongful act may have occurred as late as 9 March 1988. As a result, the cause of action may not have accrued until that time. Therefore, the action, which commenced on 25 February 1991, might not be barred by the three year statute of limitations under G.S. § l-15(c), and was improperly dismissed pursuant to Rule 12(b)(6).

We have examined plaintiff’s remaining argument and determine it to be without merit. The order of the trial court dismissing plaintiff’s action is

Reversed.

Judge McCRODDEN concurs. Judge GREENE dissents.