Sunbow Industries, Inc. v. London , 58 N.C. App. 751 ( 1982 )

294 S.E.2d 409 (1982)

SUNBOW INDUSTRIES, INC. formerly known as Eastern Transit-Storage Company, Inc.
v.
Alvin A. LONDON.

No. 8126SC1051.

Court of Appeals of North Carolina.

September 7, 1982.

DeLaney, Millette, DeArmon & McKnight by Ernest S. DeLaney, III and Timothy G. Sellers, Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by Rodney A. Dean and Ned A. Stiles, Charlotte, for defendant-appellee.

WEBB, Judge.

The defendant's motion to dismiss the complaint was properly allowed under G.S. 1A-1, Rule 12(b)(6) if the complaint has pled a fact that will necessarily defeat its claim. See Powell v. County of Haywood, 15 N.C.App. 109, 189 S.E.2d 785 (1972). The defendant argues that the complaint shows on its face that the cause of action accrued more than three years prior to the filing of the complaint and is thus barred by G.S. 1-52(5). He contends that the complaint alleges that the last act of negligence occurred on 27 May 1976 which was the date the sale of the plaintiff's property occurred and on which date the defendant failed to perfect the security interest. The action was commenced on 31 December 1979 which was more than three years after 27 May 1976. G.S. 1-15 provides in pertinent part:

"(c) 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 ...."

The plaintiff may not proceed under the proviso of G.S. 1-15(c). He alleges that on 25 September 1978 the bankruptcy judge ruled that the security interest had not been perfected. He knew no later than that date of the alleged negligence and did not file this action until more than one year later.

The resolution of this appeal depends on whether the defendant had a continuing duty to file the financing statement after 27 May 1976. We hold that he did have such a duty. We believe that an attorney who represents a party as alleged in this action has a duty to file the financing statement after the transaction is closed, which duty continues so long as the filing of the financing statement would protect some interest of his client. If the financing statement in this case had been filed a sufficient period of time prior to the date of filing of the petition in bankruptcy, the plaintiff would not have lost his lien. It is on that date that the three-year statute of limitations began to run. The complaint does not allege a fact that will necessarily bar the plaintiff's claim and it was error to dismiss the action.

Reversed and remanded.

WELLS and WHICHARD, JJ., concur.