Hanfords Creations, LLC v. Chagaris

Filing 114

ORDER granting in part and denying in part Defendants Oral Motion to Reconsider; Plaintiffs First Claim for Relief is dismissed with prejudice. Signed by District Judge Max O. Cogburn, Jr on 6/3/2013. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:09cv487
K.A. HOLDINGS LTD. OF N.Y., a/k/a )
K.A. HOLDINGS OF NEW YORK,
)
LTD., a/k/a K.A. HOLDINGS, LTD.,
)
)
Plaintiff,
)
)
Vs.
)
)
CHRISTOPHER CHAGARIS,
)
)
Defendant.
)
____________________________________)

ORDER

THIS MATTER is before the court on Defendant’s Oral Motion to Reconsider. The
issue was first raised within Defendant’s Trial Brief filed eighteen days after the court’s
Summary Judgment Order; the day before the final Pretrial Conference was to be held; and less
than a week before trial was set to begin. Although a violation of Local Civil Rule 7.1(A)’s
requirement that all motions be submitted in a separate writing, and not included in a brief, the
court allowed the motion to be made orally. The court thereafter afforded Plaintiff time to
respond to the motion, which it has, and pursuant to Local Rule 7.1(E), a reply will not be
accepted.
On May 10, the court entered an Order denying Defendant’s Motion for Summary
Judgment on the grounds that the statute of limitations and repose in N.C.Gen.Stat. § 1-15(c) was
equitably tolled by the allegations of Defendant’s fraudulent misrepresentation. In support of the
motion, Defendant correctly argues that North Carolina does not recognize any equitable tolling
of its statute of repose for legal malpractice claims. See Goodman v. Holmes & McLaurin, 192
N.C. App. 467, 665 S.E.2d 526 (2008). In response, Plaintiff reiterates its earlier arguments that

the last alleged act of defendant was within North Carolina’s statute of repose. The last alleged
act giving rise to the first cause of action was - - at the very latest - - sometime in February or
early March of 2003 when Defendant could no longer perfect the appeal of the order dismissing
and vacating the arbitration award. See N.C. R. App. P. 3, 11, and 12. As the complaint was not
filed until October 31, 2007, well more than four years after the time for perfecting the appeal
had expired, Defendant’s alleged negligent handling of the First North Carolina action is time
barred and must be dismissed.
Defendant, however, is incorrect that the second claim is barred by statute of repose.
Under North Carolina law, “[t]he three-year statute of limitations for a legal malpractice action
begins to run at the time of the occurrence of the last act of the defendant giving rise to the cause
of action.” Ramboot, Inc. v. Lucas, 181 N.C. App. 729, 730, 640 S.E.2d 845, 846 (2007) (citing
N.C.Gen.Stat. § 1-15(c)) (emphasis added). A review of the complaint, as well as the court’s
Summary Judgment Order, reveals that the allegations are that Defendant committed malpractice
by 1) never notifying them that he was served with a notice to produce witnesses for the above
depositions so plaintiff could comply; 2) failing to exercise reasonable care and diligence in handling
the motion to dismiss and motion for summary judgment; and 3) never notifying them hearing of the
motion for summary judgment. Compl. Drawing all inferences in favor of the non-moving party,

Defendant’s last alleged act was thus committed in February 2005 when he allegedly committed
malpractice in his handling of the Motion for Summary Judgment or in March of 2005 when he
convinced Plaintiff to withdrawal the Second North Carolina action. It was at this point that
Plaintiff’s interest was harmed. As the Complaint was filed on October 31, 2007, well within the
three years of the Defendant’s final act, Plaintiff’s second claim is not time barred.
With respect to Plaintiff’s concerns that the jury will not be able to “understand” the
second and third claim without considering evidence of the First, the court will allow evidence of

the first claim as the alleged acts constitute a continuing course of conduct of negligent
representation. Accordingly, the court enters the following Order.

ORDER
IT IS, THEREFORE, ORDERED that Defendant’s Oral Motion to Reconsider is
GRANTED IN PART AND DENIED IN PART. Plaintiff’s First Claim for Relief is
DISMISSED WITH PREJUDICE.
Signed: June 3, 2013