{ "id": 11871536, "name": "BRENDA M. JORDAN and BECKY M. WITHERS, heirs of Sarah Lee Moore, Plaintiffs v. W. LUNSFORD CREW, Defendant", "name_abbreviation": "Jordan v. Crew", "decision_date": "1997-04-01", "docket_number": "No. COA96-169", "first_page": "712", "last_page": "721", "citations": [ { "type": "official", "cite": "125 N.C. App. 712" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 84-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 47-36.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "45 ALR3d 630", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "44 ALR3d 760", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "32 ALR4th 260", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "226 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554386 ], "year": 1976, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0390-01" ] }, { "cite": "209 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563771 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0130-01" ] }, { "cite": "357 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "320 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729071 ], "year": 1987, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0337-01" ] }, { "cite": "263 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "299 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575281 ], "year": 1980, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0484-01" ] }, { "cite": "275 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "405", "parenthetical": "interpretations that would create a conflict between two or more statutes are to be avoided" } ], "opinion_index": 0 }, { "cite": "302 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565402 ], "year": 1981, "pin_cites": [ { "page": "288", "parenthetical": "interpretations that would create a conflict between two or more statutes are to be avoided" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0274-01" ] }, { "cite": "285 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568516, 8568556, 8568657, 8568690, 8568603 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0392-01", "/nc/304/0392-02", "/nc/304/0392-04", "/nc/304/0392-05", "/nc/304/0392-03" ] }, { "cite": "280 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520807 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0290-01" ] }, { "cite": "399 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495424, 2499714, 2498482, 2493493, 2500383 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0638-05", "/nc/327/0638-02", "/nc/327/0638-01", "/nc/327/0638-03", "/nc/327/0638-04" ] }, { "cite": "394 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "215" }, { "page": "216", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524754 ], "pin_cites": [ { "page": "714-15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0710-01" ] }, { "cite": "341 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703812 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0372-01" ] }, { "cite": "330 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525020 ], "year": 1985, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0104-01" ] }, { "cite": "447 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "788" }, { "page": "787" }, { "page": "788", "parenthetical": "emphasis added" }, { "page": "788" }, { "page": "788", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "337 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551919 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "656" }, { "page": "655-56" }, { "page": "656" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0651-01" ] }, { "cite": "460 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790181, 790123, 790188, 790231, 790142 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0568-02", "/nc/340/0568-05", "/nc/340/0568-04", "/nc/340/0568-01", "/nc/340/0568-03" ] }, { "cite": "456 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "854" }, { "page": "855" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920371 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "653" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0649-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 47-36.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 839, "char_count": 21065, "ocr_confidence": 0.744, "pagerank": { "raw": 3.341344340347475e-07, "percentile": 0.8741667950525301 }, "sha256": "dccf51f51ec37ceeeac3a40d132f44f9db48e29e3fc904c6255391d8f29d9163", "simhash": "1:b325f62a05b79885", "word_count": 3296 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JOHN concur." ], "parties": [ "BRENDA M. JORDAN and BECKY M. WITHERS, heirs of Sarah Lee Moore, Plaintiffs v. W. LUNSFORD CREW, Defendant" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiffs argue the trial court erred in dismissing their action based on the applicable statute of limitations and repose because defendant\u2019s \u201cfailure to correct the deed constituted a \u2018last act\u2019 \u201d from which the statutory period began to run. Plaintiffs also argue the complaint sufficiently stated a cause of action against defendant for a separate claim \u201cbased upon his culpability with respect to the false affidavit itself.\u201d We find no merit to these arguments and affirm.\nPlaintiffs first contend defendant\u2019s \u201crefus[al] to correct his prior error\u201d and \u201cutterance and delivery of his false affidavit. . . renewed and revived his liability for his prior negligence.\u201d However, plaintiffs have cited no authority which supports their argument that defendant\u2019s filing of an allegedly false affidavit, almost fourteen years after drafting the deeds, renewed and revived defendant\u2019s liability for his original negligence, and this argument is deemed abandoned. N.C.R. App. P. 28(b)(5).\nWe also disagree with plaintiffs\u2019 argument that defendant\u2019s refusal to correct the errors bars application of the statutes of limitations and repose. N.C. Gen. Stat. \u00a7 l-15(c), the applicable statute of limitations and repose for actions involving professional malpractice, states, in pertinent part:\n[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 nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action. . . .\nSince plaintiffs filed this action in 1995, clearly outside the respective three-year and four-year statutes of limitation and repose, the determinative issue on appeal is whether defendant\u2019s last act, for purposes of the statute, was the drafting of the deeds in 1980 or his alleged failure and refusal to correct the error in 1992.\nThis issue has already been decided by this Court in McGahren v. Saenger, 118 N.C. App. 649, 456 S.E.2d 852, disc. review denied and appeal dismissed, 340 N.C. 568, 460 S.E.2d 318 (1995). In McGahren, an action against an attorney for the negligent drafting of a deed, this Court held that the attorney\u2019s last act giving rise to the cause of action was the attorney\u2019s delivery of the negligently drafted deed to the plaintiffs. McGahren, 118 N.C. App. at 653, 456 S.E.2d at 854. However, plaintiffs contend McGahren is distinguishable because plaintiffs\u2019 complaint \u201cspecifically alleges a continuing relationship between [defendant] and the grantor,\u201d and therefore, defendant\u2019s failure to correct his error constituted a last act from which the statute of repose began to run. We find nothing in plaintiffs\u2019 complaint which distinguishes their cause of action from the plaintiffs in McGahren.\nIn Hargett v. Holland, 337 N.C. 651, 447 S.E.2d 784 (1994), our Supreme Court held an attorney\u2019s duty to a client is determined by the nature of the services the attorney agreed to perform. Hargett, 337 N.C. at 656, 447 S.E.2d at 788. In that case, the Court determined an action filed against an attorney for the negligent drafting of a will more than four years after the will was drafted was barred by the applicable statute of repose. Id. at 654, 447 S.E.2d at 787. Overruling the prior decision of this Court, which had held defendant\u2019s last act was his \u201cfailure to fulfill a continuing duty to prepare a will properly reflecting the testator\u2019s testamentary intent\u201d and that plaintiff\u2019s cause of action did not accrue until the testator\u2019s death, the Supreme Court held:\nUnder the circumstances here we conclude defendant had no such continuing duty. We hold that under the arrangement alleged in the complaint, which was a contract to prepare a will after which defendant was an attesting witness to the will, defendant\u2019s duty was simply to prepare and supervise the execution of the will. This arrangement did not impose on defendant a continuing duty thereafter to review or correct the will or to prepare another will. Absent allegations of an ongoing attorney-client relationship between testator and defendant with regard to the will from which such a continuing duty might arise, or allegations of facts from which such a relationship may be inferred, the allegations which are contained in the complaint are insufficient to place any continuing duty on defendant to review or correct the prepared will, or to draft another will.\nHargett, 337 N.C. at 655-56, 447 S.E.2d at 788 (emphasis added). Therefore, absent a continuing duty imposed by the contractual relationship or the nature of the services, the attorney has no continuing duty or relationship to the client. We find nothing in the complaint suggesting an on-going attorney-client relationship between defendant and the grantor with regard to the deeds.\nThe complaint alleges plaintiffs\u2019 grandfather \u201ccontracted with Defendant Crew, as his attorney, to prepare two deeds conveying the two lots ... to his two daughters.\u201d (emphasis added). The complaint further alleges \u201c[plaintiffs\u2019 grandfather] and defendant Crew entered into a valid and enforceable contract for the performance of professional services, namely the preparation of the deeds referred to here-inabove.\u201d (emphasis added). Therefore, the complaint only alleges a contract for the preparation of two deeds. \u201cAfter defendant had completed these acts, he had performed his professional obligations; and his professional duty to [the grantor] was at an end.\u201d Hargett, 337 N.C. at 656, 447 S.E.2d at 788. Although the complaint also later alleges that \u201cDefendant Crew had a continuing duty to properly perform the Contract pursuant to the directions and instructions given him . . this allegation does not change the nature of the duty owed by defendant. In ruling on a motion under N.C.R. Civ. P. 12(b)(6), a court will not accept mere conclusory allegations on the legal effect of the events a plaintiff has set out if those allegations do not reasonably follow from the plaintiffs description of what happened. Beasley v. National Savings Life Ins. Co., 75 N.C. App. 104, 106, 330 S.E.2d 207, 208 (1985), disc, review dismissed as improvidently allowed, 316 N.C. 372, 341 S.E.2d 338 (1986). Here, a \u201ccontinuing duty to properly perform the Contract\u201d does not reasonably follow from a contract only for the preparation of two deeds.\nNor does plaintiffs\u2019 allegation that defendant \u201chad a close personal and professional relationship with [plaintiffs\u2019 grandfather] and his family, knew of their desires and plans for distribution of their estates and assisted in the planning and implementation of such\u201d give rise to a continuing duty with regard to the preparation of the deeds. We first note this allegation does not allege the relationship continued past the preparation of the deeds. However, even assuming the \u201cclose personal and professional relationship\u201d continued after defendant prepared the deeds, the complaint does not allege the deeds were prepared as part of an on-going estate plan, and this particular allegation does little more than allege a general attorney-client relationship.\nIn discussing a continuing relationship for professional services in the context of a medical malpractice action under the \u201ccontinued course of treatment\u201d doctrine, this Court has said the doctrine applies \u201cif the physician continued to treat the patient for the particular disease or condition created by the original act of negligence.\" Stallings v. Gunter, 99 N.C. App. 710, 714-15, 394 S.E.2d 212, 215 (emphasis added), disc. review denied, 327 N.C. 638, 399 S.E.2d 125 (1990). \u201cMere continuity of the general physician-patient relationship is insufficient to permit one to take advantage of the continuing course of treatment doctrine. Subsequent treatment . . . \u2018must be related to the original act, omission, or failure which gave rise to the cause of action.\u2019 \u201d Id. at 715, 394 S.E.2d at 216 (citations omitted). In the context of an attorney\u2019s continuing duty, our Supreme Court has said:\nJust as a physician\u2019s duty to the patient is determined by the particular medical undertaking for which he was engaged, an attorney\u2019s duty to a client is likewise determined by the nature of the services he agreed to perform. An attorney who is employed to draft a will and supervise its execution and who has no further contractual relationship with the testator with regard to the will has no continuing duty to the testator regarding the will after the will has been executed.\nHargett, 337 N.C. at 656, 447 S.E.2d at 788 (emphasis added). Because plaintiffs have not alleged a continuing professional relationship directly related to the drafting of the two deeds, they have failed to show a continuing relationship between defendant and plaintiffs\u2019 grandfather. Therefore, defendant\u2019s last act for purposes of the statute of repose was the drafting and delivery of the deeds in 1980. As such, plaintiffs\u2019 cause of action for the negligent drafting of the deeds is barred by the statutes of limitations and repose contained in G.S. l-15(c).\nPlaintiffs also argue N.C. Gen. Stat. \u00a7 47-36.1, which allows for the correction of obvious typographical or other minor errors in deeds, creates a continuing duty on the part of the drafting attorney to make corrections. However, the statute reads that errors \u201cmay be corrected,\u201d not \u201cshall be corrected.\u201d Even assuming, arguendo, the error in this case could be considered a typographical or other minor error, we refuse to construe a statute which allows correction of errors as requiring corrections, especially where such a construction would create a new independent statutory duty. See Preston v. Thompson, 53 N.C. App. 290, 292, 280 S.E.2d 780, 783 (when giving a statute its plain meaning, the courts may not interpolate or superimpose provisions not contained within the statute), disc, review denied and appeal dismissed, 304 N.C. 392, 285 S.E.2d 833 (1981). As stated above, defendant\u2019s legal duty to the grantor ended upon the drafting and delivery of the deeds. Further, if we were to accept plaintiffs\u2019 argument, the statute would forever stay the applicable statutes of limitations and repose for actions involving errors in deeds or other instruments filed with the register of deeds, thereby rendering the statutes of limitations and repose without effect. See Hunt v. Reinsurance Facility, 302 N.C. 274, 288, 275 S.E.2d 399, 405 (1981) (interpretations that would create a conflict between two or more statutes are to be avoided). Therefore, we find no merit to plaintiffs allegations that G.S. 47-36.1 creates a continuing duty to correct errors and that defendant\u2019s failure to correct the errors under the statute constituted a \u201cbreach of fiduciary duty\u201d and a \u201cbreach of his duty to the public.\u201d\nPlaintiffs next argue defendant is equitably estopped from asserting the statutes of limitations and repose as a defense. We also find no merit to this argument. Equitable estoppel arises when a party has been induced by another\u2019s acts to believe that certain facts exist, and that party \u201crightfully relies and acts upon that belief to his detriment.\u201d Thompson v. Soles, 299 N.C. 484, 487, 263 S.E.2d 599, 602 (1980). In order for equitable estoppel to bar application of the statute of limitations, a plaintiff must have been induced to delay filing of the action by the misrepresentations of the defendant. See Duke University v. Stainback, 320 N.C. 337, 341, 357 S.E.2d 690, 693 (1987). Plaintiffs have not alleged any reliance upon a misrepresentation by defendant which prevented them from timely filing this action. Therefore, equitable estoppel is not available to plaintiffs.\nLastly, plaintiffs argue the trial court erred in dismissing their complaint because it stated a cause of action based on defendant\u2019s \u201caffirmative actions in preparing and submitting a false affidavit\u201d which \u201c[gave] rise to a cause of action independent of his initial negligence.\u201d Plaintiffs\u2019 complaint alleges defendant\u2019s actions by submitting the affidavit, refusing to correct the errors, \u201cand his various other failures, refusals and deliberate actions hereinbefore alleged constitute fraudulent practice and constructive fraud under the provisions of N.C. Gen. Stat. \u00a7 84-13.\u201d However, plaintiffs have failed to state a cause of action for either fraud or constructive fraud.\n\u201cThe elements of fraud are: \u2018(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.\u2019 \u201d McGahren, 118 N.C. App. at 654, 456 S.E.2d at 855 (quoting Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974)). Constructive fraud differs from actual fraud in that the intent to deceive is not an essential element. Moore v. Trust Co., 30 N.C. App. 390, 392, 226 S.E.2d 833, 835 (1976). Here, the complaint itself shows plaintiffs were not deceived by defendant\u2019s failure to correct the errors or by filing his affidavit. Throughout, they believed they were entitled to the homeplace and were never convinced otherwise by any actions of the defendant. Since plaintiffs were never deceived by the misrepresentations of the defendant, an essential element of both fraud and constructive fraud is nonexistent in this case. Therefore, the trial court properly dismissed this cause of action.\nWe find no merit to plaintiffs\u2019 remaining assertions. For the reasons stated, the order of the trial court granting defendant\u2019s motion to dismiss is affirmed.\nAffirmed.\nJudges WYNN and JOHN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Jordan, Price, Wall, Gray & Jones, L.L.P., by Paul T. Flick and Laura J. Wetsch, for plaintiff-appellants.", "Baker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and Roger A. Askew, for defendant-appellee." ], "corrections": "", "head_matter": "BRENDA M. JORDAN and BECKY M. WITHERS, heirs of Sarah Lee Moore, Plaintiffs v. W. LUNSFORD CREW, Defendant\nNo. COA96-169\n(Filed 1 April 1997)\n1. Appeal and Error \u00a7 418 (NCI4th)\u2014 attorney malpractice\u2014 drafting of deeds \u2014 statute of limitations \u2014 affidavit not renewal of original negligence\nIn a malpractice action against an attorney who drafted deeds for plaintiffs\u2019 grandfather, plaintiffs\u2019 argument that defendant\u2019s filing of an allegedly false affidavit, almost fourteen years after drafting the deed, renewed and revived defendant\u2019s liability for his original negligence was deemed abandoned where plaintiffs cited no authority to support this argument.\nAm Jur 2d, Appellate Review \u00a7 554.\n2. Limitations, Repose, and Laches \u00a7 26 (NCI4th)\u2014 attorney \u2014 negligent drafting of deed \u2014 failure to show continuing relationship \u2014 statutes of limitation and repose\nThe three-year statute of limitations and four-year statute of repose barred plaintiffs\u2019 cause of action against defendant attorney for negligently drafting deeds for plaintiffs\u2019 grandfather where plaintiffs failed to show a continuing relationship between defendant and plaintiffs\u2019 grandfather and defendant drafted and delivered the deeds over fourteen years prior to plaintiffs\u2019 filing a claim. N.C.G. S. \u00a7 l-5(c).\nAm Jur 2d, Attorneys at Law \u00a7 221.\nWhen statute of limitations begins to run upon action against attorney for malpractice. 32 ALR4th 260.\n3. Registration and Probate \u00a7 83 (NCI4th)\u2014 minor errors in deeds \u2014 attorney\u2019s failure to correct \u2014 no continuing duty\u2014 no breach of duties\nAssuming arguendo N.C.G.S. \u00a7 47-36.1, which allows for the correction of obvious typographical or other minor errors in deeds, was applicable in this malpractice case, there was no merit to plaintiffs\u2019 arguments that (1) the statute created a continuing duty on the part of the drafting attorney to make corrections and (2) defendant attorney\u2019s failure to correct the errors pursuant to the statute constituted a breach of his duties.\nAm Jur 2d, Attorneys at Law \u00a7 221; Negligence \u00a7 921.\nWhen statute of limitations begins to run upon action against attorney for malpractice. 32 ALR4th 260.\n4. Estoppel \u00a7 20 (NCI4th)\u2014 legal malpractice \u2014 mistakes in deeds \u2014 absence of detrimental reliance \u2014 equitable estop-pel not applicable\nIn an action for legal malpractice against defendant attorney who drafted the deeds for plaintiffs\u2019 grandfather, equitable estop-pel did not bar defendant from asserting statutes of limitations and repose as defenses where plaintiffs did not allege that misrepresentations by defendant prevented plaintiffs from timely filing an action against defendant.\nAm Jur 2d, Estoppel and Waiver \u00a7\u00a7 33, 76, 164.\nPlaintiffs diligence as affecting his right to have defendant estopped from pleading the statute of limitations. 44 ALR3d 760.\nFiduciary or confidential relationship as affecting estoppel to plead statute of limitations. 45 ALR3d 630.\n5. Fraud, Deceit and Misrepresentation \u00a7 28 (NCI4th)\u2014 plaintiffs not deceived by misrepresentation \u2014 no fraud or constructive fraud\nThe trial court properly dismissed plaintiffs\u2019 claims for fraud and constructive fraud against the attorney who drafted deeds for plaintiffs\u2019 grandfather based on the attorney\u2019s refusal to correct mistakes in the deeds and his submission of an allegedly false affidavit concerning the grantor\u2019s intention where the complaint showed that plaintiffs were not deceived by the attorney\u2019s failure to correct the errors or by the filing of his affidavit.\nAm Jur 2d, Estoppel and Waiver \u00a7 76.\nAppeal by plaintiffs from order entered 29 November 1995 by Judge Louis B. Meyer in Wake County Superior Court. Heard in the Court of Appeals 22 October 1996.\nPlaintiffs brought this action alleging defendant W. Lunsford Crew, an attorney, negligently drafted two deeds conveying certain properties, known respectively as \u201cthe homeplace\u201d and \u201cthe rental property,\u201d from plaintiffs\u2019 grandfather to plaintiffs\u2019 aunt and mother on 16 September 1980. Plaintiffs\u2019 grandfather, still living at the time this action was filed, retained a life estate in both properties. Plaintiffs alleged the defendant \u201cnegligently and carelessly\u201d switched the lot numbers for the properties in the deeds so that the lot numbers and the descriptions of the two properties in the deeds did not match. Based on this discrepancy, in February 1992, plaintiffs\u2019 aunt claimed ownership of the property known as the homeplace, which plaintiffs alleged had been deeded to their mother, now deceased. Plaintiffs alleged they contacted defendant by phone and letter in February and September 1992, asking him to \u201ccorrect his errors and clear the cloud from Plaintiffs\u2019 title.\u201d However, defendant \u201crefuse[d] and reject[ed] at least four formal requests that he acknowledge his errors and act to correct them.\u201d\nEarly in 1994, plaintiffs filed an action against their aunt seeking to quiet title to the property. Defendant filed an affidavit in that case testifying to plaintiffs\u2019 grandfather\u2019s capacity and competency to execute legal documents. The affidavit also contained the following statement:\nIt has come to the attention of the affiant that a discrepancy has arisen concerning the reversal of the house numbers on the deeds prepared for Tommie Williams [plaintiffs\u2019 grandfather] conveying real property to his daughters. The affiant was not requested to search the title to the two lots but merely drafted the deeds using the descriptions and information supplied him by Tommie Williams. The conveyance of property, as stated in the two deeds, carry [sic] out the expressed intent of the Grantor as requested of the affiant.\nAfter plaintiffs\u2019 grandfather stated it was his intent for plaintiffs\u2019 mother to receive the homeplace, plaintiffs\u2019 aunt eventually withdrew her claim to the property.\nPlaintiffs filed a complaint 8 February 1995 alleging negligence and breach of contract and negligent performance of contract, with plaintiffs as the intended third-party beneficiaries of the contract. Plaintiffs also sought punitive damages, alleging defendant \u201cdeliberately and intentionally gave aid to [plaintiffs\u2019 aunt] in her attempt to defeat Plaintiffs\u2019 efforts to remove the cloud on title caused by him,\u201d and defendant \u201cwillfully, intentionally and maliciously refused to act under the provisions of N.C. Gen. Stat. \u00a7 47-36.1 to correct the errors in a recorded instrument which was prepared by him.\u201d Plaintiffs further sought double damages pursuant to N.C. Gen. Stat. \u00a7 84-13, alleging defendant\u2019s actions constituted a fraudulent practice and constructive fraud.\nDefendant filed a motion 6 March 1995 to dismiss the action on the grounds plaintiffs\u2019 complaint failed to state a cause of action. After a 9 November 1995 hearing, the trial court entered an order 29 November 1995 granting defendant\u2019s motion to dismiss, holding plaintiffs\u2019 action was barred by N.C. Gen. Stat. \u00a7 l-15(c), and that the \u25a0 complaint failed to state a claim for which relief could be granted. From this order, plaintiffs appeal.\nJordan, Price, Wall, Gray & Jones, L.L.P., by Paul T. Flick and Laura J. Wetsch, for plaintiff-appellants.\nBaker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and Roger A. Askew, for defendant-appellee." }, "file_name": "0712-01", "first_page_order": 750, "last_page_order": 759 }