Small v. Britt , 64 N.C. App. 533 ( 1983 )

307 S.E.2d 771 (1983)

James Lenard SMALL
v.
Evander M. BRITT, Charles H. Kirkman.

No. 8216SC1113.

Court of Appeals of North Carolina.

October 18, 1983.

James Lenard Small, pro se, plaintiff-appellant.

Tharrington, Smith & Hargrove by Wade M. Smith, John R. Edwards, Elizabeth F. Kuniholm, Raleigh, for defendants-appellees.

EAGLES, Judge.

We find no error in the trial court's granting of defendants' motion to dismiss. A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is the proper method to test whether a pleading is legally sufficient. In determining as a matter of law whether the allegations state a claim for which relief may be granted, the allegations of a complaint are viewed as admitted. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979). A complaint may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. This generally precludes dismissal except where the face of the complaint discloses some insurmountable bar to recovery. Forbis v. Honeycutt, 301 N.C. 699, 273 S.E.2d 240 (1980). In this case, the trial court properly ruled that the face of the complaint disclosed an insurmountable bar to recovery in that the complaint was filed after the applicable statute of limitations had run.

The statute of limitations applicable to this legal malpractice action is G.S. 1-15(c). Clodfelter v. Bates, 44 N.C.App. 107, 260 S.E.2d 672 (1979). The three year statute of limitations of G.S. 1-15(c) applies here, for defendant's imprisonment was not a disability that tolled the running of the statute of limitations. G.S. 1-17; Evans v. Chipps, 56 N.C.App. 232, 287 S.E.2d 426 (1982).

According to G.S. 1-15(c), a cause of action for professional malpractice accrues "at the time of the occurrence of the last act of the defendant giving rise to the cause of action...." See, Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980). Here, plaintiff alleged numerous acts of negligence on the part of the defendants during the pre-trial and trial phases of the prosecution, but there are no allegations of negligence on the part of the defendants subsequent to the jury's verdict on 20 April 1979. In particular, there are no allegations of negligence on the part of defendants during the sentencing portion of the trial, which ended on 24 April 1979. Taking all the allegations of the plaintiff's complaint as true for the purpose of evaluating this motion to dismiss, we conclude that the defendants' alleged negligence was complete on 20 April 1979, and that the cause of action accrued on 20 April 1979.

Mailing the complaint and affidavit on 20 April 1982 did not constitute commencement of the action. A civil action is commenced by filing a complaint with the court or, in some cases, by issuing a summons. N.C.R.Civ.P. 3. Even if the complaint had been permitted to be filed when it was first received in the mails by the clerk of superior court, the three year statute of limitations would have already run. Because the requirements as to payment of fees had not been complied with, the complaint and affidavit were returned to the plaintiff without filing. G.S. 7A-305(c). It was only on 7 May 1979, after plaintiff had completed the in forma pauperis affidavit and the presiding judge ordered that plaintiff be allowed to proceed in forma pauperis, that the complaint was filed and summonses issued. It is clear, from the face of the complaint, that this filing commenced the action after the statute of limitations had run. Therefore, the Rule 12(b)(6) motion to dismiss was properly granted.

Plaintiff's second assignment of error, that the trial court erred in denying his request for appointment of counsel, has no merit. There is no statutory right to appointed counsel in civil cases, and a due process right to appointed counsel in a civil case arises only if needed to insure fundamental fairness (because of the complexity of the case or the party's inability to speak for himself). Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). There was no due process violation in the trial court's denial of plaintiff's request for appointed counsel.

No error.

ARNOLD and WELLS, JJ., concur.