An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in a ccordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-894
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 18 March 2014


GLENN and CHRISTINE FOSS,
     Plaintiffs,

      v.                                      Buncombe County
                                              No. 09 CVS 2352
MCGUIRE, WOOD & BISSETTE, PA and
SUSAN BARBOUR,
     Defendants.


      Appeal by plaintiffs from order entered 11 March 2013 by

Judge C. Philip Ginn in Buncombe County Superior Court.                       Heard

in the Court of Appeals 7 January 2014.


      Tharrington Smith, L.L.P., by F. Hill Allen and David N.
      Webster, pro hac vice, for plaintiffs-appellants.

      Long, Parker, Warren, Anderson & Payne, P.A., by Ronald K.
      Payne, for defendants-appellees.


      HUNTER, Robert C., Judge.


      Plaintiffs appeal the order granting defendants’ motion for

summary    judgment     based    on   plaintiffs’     failure    to   file    their

claim for legal malpractice within the statute of limitations.

On    appeal,      plaintiffs         argue    that      because      defendants’

professional negligence was not readily apparent at the time of
                                      -2-
injury and was not discovered until more than two years after

the last negligent act giving rise to plaintiffs’ claim, the

statute of limitations did not run until four years after the

last act, on 21 April 2009.         After careful review, we affirm the

trial court’s order.

                                  Background

       In 2004, plaintiffs Glenn and Christine Foss (“Glenn” or

“Christine”,     collectively     “plaintiffs”)         became     interested   in

buying a parcel of land located in the subdivision of Greyrock

at Lake Lure (“Greyrock”) in Rutherford County, North Carolina.

Glenn had learned that HGTV was planning to build a “Dream Home”

in    that   subdivision.         Glenn     and        John   Sebastiano      (“Mr.

Sebastiano”)     visited    the   property     sometime       in    August   2004.

After their visit, they, along with a few other individuals,

created Lure Properties, L.L.C. (“Lure Properties”), in order to

purchase several lots in Greyrock.           On or about 25 October 2004,

Lure Properties entered into a nonbinding reservation agreement

and convertible contract for sale (“reservation agreement”) for

a number of lots in Greyrock, including lot 27.1                       Plaintiffs

contended that they chose lot 27 based on its views of Lake Lure

and    because   it   was   located    next       to    HGTV’s     “Dream    Home.”



1
    Lot 27 was originally numbered lot 29.
                                       -3-
Originally, lot 27 included 1.68 acres of land; however, the

reservation    agreement     explicitly       noted   that    lot   27    “may    be

amended.”     On 22 February 2005, lot 27 was reduced in size to

1.43 acres.    In addition, the lot lines were changed so that lot

27’s view of Lake Lure was adversely affected.

    Lure Properties was unable to get a loan to purchase the

properties.    Plaintiffs decided to purchase lot 27 individually.

Mr. Sebastiano was “in charge” of arranging the purchase of lot

27 by plaintiffs.         According to plaintiffs, the developers of

Greyrock recommended defendant McGuire, Woods, & Bissette, P.A.

(“MWB”) to handle the closing;2              defendant Susan Barbour (“Ms.

Barbour”)     was   the    attorney     at     MWB    handling      the   closing

(collectively,      Ms.    Barbour     and     MWB    are     referred     to     as

“defendants”).

    Prior to closing on the property, plaintiffs informed Ms.

Barbour     that    all    communications       should      be   sent     to     Mr.

Sebastiano.    The closing was scheduled for 21 April 2005.                    On 15

April,    defendants      sent   the   loan    closing       documents    to     Mr.

Sebastiano per plaintiffs’ instructions.               The closing documents

2
  While defendants contend that they were hired after lot 27 was
reduced in size to 1.43 acres, we are unable to verify this from
the record. Plaintiffs claim they hired MWB in September 2004.
While defendants deny this in their answer, there is nothing in
the record indicating the date in which they contend that they
were hired by plaintiffs.
                                          -4-
showed that lot 27 had been resurveyed; the lot size had been

reduced   to    1.43   acres,     and    the    boundary       lines    had    changed.

Plaintiffs     executed    the    loan    documents      and     returned      them    to

defendants      for    closing.         Within     a    year     of    closing,       Mr.

Sebastiano visited the lot and realized that it did not appear

the same as when he and Glenn first visited in 2004.                          He called

Glenn and told him that the lot had changed and that they had a

“major problem.”

    On 21 April 2009, plaintiffs filed an application to extend

the time to file a complaint with regard to their claim of

professional     negligence,      which     was    granted      by     the    clerk    of

court.    Plaintiffs were given until 11 May 2009 to file their

complaint.       Plaintiffs       filed    their       complaint       11    May    2009,

alleging claims of professional negligence, breach of contract,

and breach of fiduciary duty.              On 5 June 2009, defendants moved

to strike the second and third counts in plaintiffs’ complaint

because   the     application      only     sought      an     extension      for     the

professional negligence claim.              On 26 August 2009, Judge Ginn

entered an order dismissing all causes of action except for

plaintiffs’ claim of legal malpractice.                      Defendants filed an

answer 21 September 2009, claiming that plaintiffs’ action was

barred by both the statute of limitations and the statute of
                                           -5-
repose.     On 13 February 2013, after discovery had commenced,

defendants filed a motion for summary judgment, claiming that

the statute of limitations barred plaintiffs’ complaint.

    The matter came on for hearing on 11 March 2013.                           That same

day, Judge Ginn entered an order granting defendants’ motion for

summary    judgment      based        on    the        statute      of    limitations.

Plaintiffs timely appealed.

                                      Arguments

    Plaintiffs’ sole argument on appeal is that the trial court

erred in granting summary judgment because their action is not

barred by the statute of limitations.                    Specifically, plaintiffs

contend    that    because     defendants’         legal     malpractice        was    not

readily apparent until over two years after defendants’ last act

giving    rise    to   their    claim,      i.e.,      the   closing      on     lot   27,

plaintiffs were entitled to a one-year extension of the statute

of limitations pursuant to N.C. Gen. Stat. § 1-15(c).                           However,

because   plaintiffs       discovered       or    should     have    discovered        the

changes to lot 27 within two years after closing and defendants’

failure    to     notify       them    of        the    changes,         we    disagree.

Consequently,      the   statute      of    limitations       ran    on       plaintiffs’

claim 21 April 2008.         Therefore, since plaintiffs failed to file

their complaint or their application to extend the time to file
                                      -6-
their complaint on or before 21 April 2008, the trial court

properly granted summary judgment in favor of defendants.

       N.C.   Gen.   Stat.   §   1-15(c)    provides,     in    pertinent   part,

that:

              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[.]

In other words, “[t]he three year statute of limitation applies

unless at least two years have passed between the last act or

omission giving rise to the injury and the date that Plaintiff

did,    or    reasonably     should   have,       discovered    the   injury[.]”

Hackos v. Goodman, Allen & Filetti, PLLC, __ N.C. App. __, __,

745 S.E.2d 336, 340 (2013).

       First,   we   must    determine     when    the   last   alleged   act   of

negligence by defendants took place.                 “To determine when the
                                             -7-
last act or omission occurred we look to factors such as the

contractual       relationship          between          the    parties,          when      the

contracted-for        services       were    complete,         and   when       the    alleged

mistakes      could     no   longer     be    remedied.”             Carle      v.     Wyrick,

Robbins, Yates & Ponton, LLP, __ N.C. App. __, __, 738 S.E.2d

766,   771,     disc.    review      denied,       __    N.C.    __,      748    S.E.2d     320

(2013).       Both    parties     contend      that       defendants’        last      alleged

negligent act giving rise to plaintiffs’ claim was the closing

on 21 April 2005, and we agree given that defendants’ services

were complete at that point.                  Furthermore, plaintiffs’ alleged

injury    was    that    lot    27    had     been      reduced      in    size       and   its

boundaries      reconfigured      and       that    defendants        failed      to    advise

them of these changes prior to closing.                           Thus, the issue is

whether plaintiffs had actual notice or constructive notice of

the alleged injury resulting from defendants’ alleged negligent

acts before the two-year time period mandated by N.C. Gen. Stat.

§ 1-15(c).

       Plaintiffs       alleged      that    they       could   not    have      discovered

defendants’ malpractice until they consulted a law firm in 2009,

more than two years after the closing.                     Thus, they were entitled

to the one-year extension of the statute of limitations pursuant

to Rule 15(c).          In contrast, defendants contend that plaintiffs
                                       -8-
had    actual    or    constructive    notice   of    the   injury   when    they

received the resurveyed plat and closing documents or, at most,

when     Mr.    Sebastiano   called     Glenn   to    report   those    changes

approximately one year after closing.

       Here,     the    record   clearly     establishes     that    plaintiffs

discovered or should have discovered the injury resulting from

defendants’ alleged negligence within two years after closing.

In the loan documents executed by plaintiffs, the deed of trust

and the plat of the resurveyed lot clearly showed the reduction

in acreage of lot 27 to 1.43 acres and the reconfigured boundary

lines.     Plaintiffs do not dispute the fact that they received

these documents from Mr. Sebastiano, and Glenn admitted in his

deposition that he would have read these documents prior to

closing.        Furthermore, Glenn testified in his deposition that

Mr. Sebastiano informed him within one year that the lot was not

only different than the one they originally visited but also

that it had been reduced in size and that the boundaries had

changed.       Thus, at most, approximately one year passed between

the last alleged negligent act of defendants, the closing on 21

April 2005, and the date plaintiffs discovered or should have

discovered       the   injury.        Consequently,     plaintiffs     are   not

entitled to the “one year after discovery” provision codified in
                                    -9-
section 15(c).    Therefore, plaintiffs had to file their claim of

legal malpractice or application to extend the time to file a

complaint within three years after the closing on 21 April 2005.

By failing to do so, their claim for professional negligence was

time barred, and the trial court properly granted defendants’

motion for summary judgment.

                                 Conclusion

    Based on the fact that plaintiffs discovered or should have

discovered the changes to lot 27 and defendants’ failure to

notify them of these changes within two years after closing, we

affirm   the   trial   court’s   order    granting   summary   judgment   as

plaintiffs’ claim was time barred by the statute of limitations.



    AFFIRMED.

    Judges ELMORE and STEELMAN concur.

    Report per Rule 30(e).
