Costin v. Shell

280 S.E.2d 42 (1981)

Dr. N. Frank COSTIN, Dr. Carlos T. Cooper and Dr. E. Joseph Daniels, Board of Podiatry Examiners for the State of North Carolina v. Ralph SHELL.

No. 8110SC15.

Court of Appeals of North Carolina.

July 7, 1981.

*43 Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for defendant-appellant.

Broughton, Wilkins & Crampton, P.A. by J. Melville Broughton, Jr. and H. Julian Philpott, Jr., Raleigh, for plaintiff-appellee.

BECTON, Judge.

In applying the standard for summary judgment, the trial court found, based on the pleadings and affidavits, that no genuine issue existed as to any material fact. See Loy v. Lorm, ___ N.C.App. ___, 278 S.E.2d 897 (1981). Our review of the record is in accord with the findings and judgment of the trial court.

G.S. 90-202.3 makes it unlawful for any person to "practice podiatry unless he shall have been first licensed and registered so to do in the manner provided in this Article [Article 12 Podiatrists] ...." Podiatry *44 under the Article is defined as "the surgical or medical or mechanical treatment of all ailments of the human foot ...." G.S. 90-202.2. The Board has been given specific statutory authority to petition the courts for injunctive relief to prevent violations of the statutes governing the practice of podiatry. G.S. 90-202.13.

In the case at bar, defendant acknowledged that he was not licensed by or registered with the Board and that his stationery included the letters D.P.M. which commonly mean Doctor of Podiatric Medicine. The defendant refers to himself as "Doctor" Shell even though he does not have a medical degree, and the affidavits of two of his patients indicate that they thought he was a "qualified doctor to examine and correct" their foot ailments. Moreover, the Board offered in support of its summary judgment motion a letter signed by "Dr. Ralph Shell" in which the defendant acknowledged that he had "surgically removed, relieved and treated on December 6, 1975" the infected, ingrown toenail of Mr. Rudolf Smith. Dr. Robert M. Hatcher, a licensed Doctor of Podiatry, provided the Board with an affidavit in which he gave his opinion that "the diagnosis and the treatment of ingrown toenails is a medical matter ... [and] should [not] be attempted by non-medical personnel." Based on the pleadings, admissions and affidavits, then, the trial court's order of summary judgment was properly granted.

In the alternative, defendant argues that if he were found to be practicing podiatry, then the doctrine of laches and the statute of limitations prohibit the grant of an injunction. These arguments are without merit. The doctrine of laches requires a showing (1) that the petitioner negligently failed to assert an enforceable right within a reasonable period of time, Builders Supplies Co. v. Gainey, 282 N.C. 261, 192 S.E.2d 449 (1972); and (2) that the propounder of the doctrine was prejudiced by the delay in bringing the action, Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975). Defendant presented no evidence by way of affidavit that he was prejudiced by the delay. In fact, defendant benefited by any delay in bringing this action because he was able to continue to profit from his unlawful practice of podiatry.

Defendant also contends that the Board is barred from bringing this action by the ten-year statute of limitations under G.S. 1-56. Defendant's violation of the podiatry statutes, however, is an ongoing violation; defendant was unlawfully practicing podiatry and holding himself out as a Doctor of Podiatry at the time this action was filed. Hence, the ten-year statute of limitations, if applicable, would not have been tolled at the time the complaint was filed.

The grant of the Board's motion for summary judgment was in all respects correct, and therefore we

Affirm.

VAUGHN and ARNOLD, JJ., concur.