Brantley v. Dunstan , 10 N.C. App. 706 ( 1971 )

179 S.E.2d 878 (1971) 10 N.C. App. 706

Norman Earl BRANTLEY
v.
Forrest V. DUNSTAN and Wallace R. Gray.

No. 7110SC133.

Court of Appeals of North Carolina.

March 31, 1971.

Broughton, Broughton, McConnell & Boxley, by J. Mac Boxley and Charles P. Wilkins, Raleigh, for plaintiff appellant.

Smith, Anderson, Dorsett, Blount & Ragsdale, by James D. Blount, Jr., Raleigh, for defendant appellee Forrest V. Dunstan.

Maupin, Taylor & Ellis, by Thomas F. Ellis, Raleigh, for defendant appellee Wallace R. Gray.

CAMPBELL, Judge.

The sole question presented upon this appeal is whether the record discloses that the plaintiff's claim is barred by the running of the statute of limitations. If so, defendants were entitled to judgment as a matter of law and summary judgment, under Rule 56, N.C.Rules of Civil Procedure, was appropriate. Whether regarded as arising out of contract or tort, the prescribed period for the commencement of the action is three years. G.S. § 1-52(1) and (5).

The record discloses that the injury complained of occurred when the defective summons was filed 26 November 1965. The present action was instituted when the complaint was filed on 26 June 1970, more than four years after the injury occurred.

Plaintiff contends that (1) the claim against the defendants sounds in contract rather than tort; (2) the filing of the defective summons on 26 November 1965 was a breach of the contract; (3) the breach was waived and performance continued under the contract; and that (4) the claim did not accrue until a subsequent breach of the contract occurred in September 1968 when plaintiff dismissed the defendants as his attorneys. However, under the facts presented, whether the claim sounds in contract or in tort makes no difference in regard to the outcome. Plaintiff's complaint discloses only that the plaintiff was dissatisfied with defendants' services and dismissed them in September 1968. The complaint, if it in fact sounds in contract, although we do not so hold, fails to allege any subsequent breach of the contract that would begin anew the running of the statute of limitations.

Plaintiff further contends that the claim against the defendants did not accrue until this Court determined that plaintiff's claim against Lester Sawyer was barred. Brantley v. Sawyer, 5 N.C.App. 557, 169 S.E.2d 55 (1969). But the North Carolina Supreme Court has consistently held that the claim accrues at the time of the invasion of the right, and that nominal damages, at least, flow from such invasion. Land v. Neill Pontiac, Inc., 6 N.C.App. 197, 169 S.E.2d 537 (1969), and cases cited therein.

"* * * Where there is either a breach of an agreement or a tortious invasion of a right for which the party aggrieved is entitled to recover even nominal damages, the statute of limitations immediately begins to run against the party aggrieved, unless he is under one of the disabilities specified in G.S. § 1-17. * * * It is unimportant that the actual or the substantial damage does not occur until later if the whole injury results from the original tortious act. * * * It is likewise unimportant that the harmful consequences of the breach of duty or of contract were not discovered or discoverable at the time the cause of action accrued. * * *" Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965).

We hold that the claim accrued at the time of the filing of the defective summons and that the claim is now barred by the running of the statute of limitations.

The order granting defendants' motion for summary judgment and dismissing plaintiff's claim is

Affirmed.

BRITT and HEDRICK, JJ., concur.