Opsitnick, Jr et al v. Ray et al

Filing 18

ORDER GRANTING 11 Defendants' Motion to Dismiss. This matter is dismissed in its entirety and the clerk is directed to close the case. Signed by US District Judge Terrence W. Boyle on 1/20/2015. Copy mailed to pro se plaintiffs, via US Mail, to 63 Whittlesey Avenue, Chicopee, MA, 01020. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-405-BO
ROBERT OPSITNICK, JR. and ANNA M. )
OPSITNICK,
)
)
Plaintiffs,
)
v.
)
)
ROBERT G. RAY, ATTORNEY AT LAW,)
alk/a Attorney Robert G. Ray, Rose, Ray, )
)
O'connor, Manning & McCauley, P.A.,
Attorneys at Law,
)
Defendants. )

ORDER

This cause comes before the Court on defendants' motion to dismiss pursuant to Rules
12(b)(4) and (6) ofthe Federal Rules of Civil Procedure. Plaintiffs, proceedingpro se, have
responded, defendants have replied, and the matter is ripe for ruling. For the reasons discussed
below, defendants' motion to dismiss this action is granted.

BACKGROUND
Plaintiffs filed this action for negligence, specifically legal malpractice, pursuant to this
Court's diversity jurisdiction. 28 U.S.C. § 1332. Plaintiffs contend that attorney Robert Ray
represented them when plaintiff Robert Opsitnick's daughter, Nichole Jarrell, alleged
mismanagement of a trust established for her benefit. Jarrell had expressed dissatisfaction with
Robert Opsitnick's handling of the trust and with certain disbursements ofthe trust proceeds
made by him while acting as trustee. One such disbursement was a loan of $40,777.63 made by
the trust on October 7, 1998, to Anna Opsitnick, at 2% interest and payable in eighty-eight
months (herein after promissory note or October 1998 note). [DE 2-5]. A settlement between
the Opsitnicks and Jarrell was reached wherein, inter alia, Robert Opsitnick resigned as trustee
and Anna Opsitnick renounced her right to act a successor trustee. [DE 2-6]. The settlement

agreement also included a general release of liability. I d. After filing a consent judgment in
May 1999, the trust was terminated on or about August 23, 1999.
In October 2005, counsel for Jarrell contacted plaintiffs regarding the promissory note
and payments thereon. Plaintiffs contacted Ray on April 10, 2006, for an opinion on the validity
of the promissory note, and Ray communicated that he no longer represented plaintiffs and that
he would not give plaintiffs an opinion. [DE 2-13]. Based on their conversations with Ray at the
time they signed the settlement agreement, plaintiffs believed that they were released from
liability for any loans made when Robert Opsitnick acted as trustee, including the October 1998
note, by the general release term of the settlement agreement.
After being contacted by Jarrell's counsel in 2005, the Opsitnicks made no payments on
the October 1998 note, and on February 5, 2009, Jarrell filed suit in Wake County Superior
Court. Partial summary judgment against the Opsitnicks was entered on July 18, 2011, finding
that the general release included in the 1999 settlement agreement did not release the promissory
note and that the Opsitnicks owed Jarrell $40,777.73 with 2% interest from October 7, 1998, less
any payments made. [DE 2-17]. A jury hearing Jarrell's remaining claims found that the
Opsitnicks had taken advantage of a position of trust to induce Jarrell to enter into the settlement
agreement, thereby voiding the 1999 settlement agreement. [DE 2-19 at 15]. The North
Carolina Court of Appeals dismissed the Opsitnick's appeal of the jury verdict and the North
Carolina Supreme Court declined review. [DE 2-19].
DISCUSSION

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most

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favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts
pled "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged"; mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
An affirmative defense that a complaint is barred by a statute of limitations may not form
the basis of Rule 12(b)( 6) dismissal unless all of the facts necessary for the defense appear on the
face ofthe complaint. Goodman v. Praxair, Inc., 494 F.3d 458,464 (2007). The Court may also
consider information in the public record when reviewing a motion to dismiss pursuant to Rule
12(b)(6), Hall v. Virginia, 385 F.3d 421,424 n.3 (4th Cir. 2004), as well as any documents
attached to the complaint so long as they are integral thereto. Philips v. Pitt Cnty. Mem 'l Hasp.,
572 F.3d 176, 180 (4th Cir. 2009).
North Carolina General Statute § 1-15(c) provides that a claim for professional
malpractice is deemed to accrue when the last act giving rise to the cause of action occurs, and
that no action may be commenced more than four years from the last act giving rise to the cause
of action. See also Goodman v. Holmes & McLaurin, 192 N.C.App. 467,473-4 (2008). "[T]he
period contained in the [four year] statute of repose begins when a specific event occurs,
regardless of whether a cause of action has accrued or whether any injury has resulted." Black v.
Littlejohn, 312 N.C. 626, 633 (1985). What act comprises the "last act" giving rise to a
professional malpractice action is a conclusion of law, Ramboot, Inc. v. Lucas, 181 N.C.App.
729, 734 (2007), and in order to determine when the last act of alleged negligence took place, a
court considers factors "such as the contractual relationship between the parties, when the

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contracted-for services were complete, and when the alleged mistakes could no longer be
remedied." Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 738 S.E.2d 766, 771 (N.C. Ct. App.
2013).
The Opsitnicks allege that attorney Ray breached his duty of care to plaintiffs when he
represented to them that the 1999 settlement was a release of all matters "in the subject matter of
the underlying case," and that based on Ray's representation payments on the promissory note
were stopped, which was ultimately to the Opsitnick's detriment. [DE 2 at 2]. Plaintiffs'
negligence claim is therefore founded in Ray's allegedly negligent counsel during the negotiation
ofthe settlement agreement in 1999. The settlement agreement was executed by April1999, a
consent judgment based upon the settlement agreement was entered on May 17, 1999, and the
trust was terminated by order entered August 23, 1999. [DE 2-8; 2-9; 2

at~

36]. Plaintiffs do

not allege any ongoing relationship with Ray following the termination of the trust, and in 2006
Ray confirmed that he no longer represented plaintiffs and would not advise them on their duty
to pay on the promissory note.
Where a party has settled a claim and later discovered that the settlement was based on
bad advice from their attorney, the last act of the allegedly negligent attorney giving rise to the
cause of action was the date that the client signed the release consummating the settlement
agreement. Ramboot, 181 N.C. App. at 735. Plaintiffs hired Ray in 1998 to represent their
interests on matters of Jarrell's trust and her allegations of mismanagement thereof. Ray advised
plaintiffs throughout the settlement negotiations and plaintiffs ultimately signed a settlement
agreement with Jarrell which was filed as a consent judgment in May 1999. The last act of
Ray's alleged negligence arising out ofthe settlement for purposes ofthe statute of repose
therefore occurred in May 1999 or at the latest in August 1999 when the trust was terminated.

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Plaintiffs filed this action in July 2014, almost fifteen years after the last act occurred, and their
claim is plainly barred by the statute of repose.
Plaintiffs contend that attorney Ray's last act for purposes of the statute of repose was
March 14, 2011, the date of his deposition taken in relation to Jarrell's Wake County action filed
against plaintiffs in 2009 for payment on the October 1998 note. Plaintiffs state that at that time
Ray did not advise them that the note was not released by the settlement agreement and plaintiffs
continued to rely on his advice that they did not need to pay on the note. That Ray did not take
an opportunity to correct his alleged negligence at a later meeting with plaintiffs is of no import,
however, as the subsequent refusal to correct an error does not revive malpractice liability.
Jordan v. Crew, 125 N.C.App. 712, 715 (1997).

Because this action is barred by the statute of repose, 1 plaintiffs "literally [have] no cause
of action. The harm that has been done is damnum absque irifuria-a wrong for which the law
affords no redress." Hargett v. Holland, 337 N.C. 651, 655 (1994) (internal quotation and
citation omitted). Their complaint must therefore be dismissed in its entirety.
CONCLUSION

For the foregoing reasons, defendants motion to dismiss pursuant to Rule 12(b)(6) [DE
11] is GRANTED and this matter is DISMISSED in its entirety. The clerk is DIRECTED to
enter judgment and close the file.

SO ORDERED, this Hday of January, 2015.

"Y~w,~

TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
1

Because this matter is barred by the statute of repose, the Court declines to consider
defendants' remaining arguments.

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