Don'T Do It Empire, LLC v. Tenntex

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-939

Filed: 1 March 2016

Wake County, No. 14 CVS 5187

DON’T DO IT EMPIRE, LLC, Plaintiff,

v.

TENNTEX, a general partnership, THE ATRIUM CONDOMINIUMS OF RALEIGH
OWNERS ASSOCIATION, PETER H. GILLIS, FRANK L. GILLIS, THOMAS N.
GILLIS, 112 CONDOS, LLC, CAPITAL CITY CENTER, INC., DANIEL A.
LOVENHEIM, ROBERT O’HAN, ELIZABETH F. WYANT and RICHARD M.
GEPHART, Defendants.

Appeal by plaintiff from order entered 31 March 2015 by Judge G. Bryan

Collins in Wake County Superior Court. Heard in the Court of Appeals 26 January

2016.

Weatherspoon & Voltz LLP, by T. Carlton Younger, III, for plaintiff-appellant.

Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, for
defendants-appellees.

ZACHARY, Judge.

Don’t Do It Empire, LLC (plaintiff) appeals from an order denying plaintiff’s

motion to amend its complaint and granting a motion by Tenntex, Peter H. Gillis, 112

Condos, LLC, Capital City Center, Inc., and Daniel Lovenheim (defendants) to

dismiss plaintiff’s complaint with prejudice. On appeal plaintiff argues that the trial

court erred by considering defendants’ arguments for dismissal under N.C. Gen. Stat.
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§ 1A-1, Rule 41(b), on the grounds that defendants’ dismissal motion was not based

on Rule 41; that the trial court’s dismissal of plaintiff’s complaint was based on a

misinterpretation of an earlier pretrial order; that the trial court erred by dismissing

all of plaintiff’s claims, including claims that could have been pursued without adding

additional parties to plaintiff’s complaint; and that the trial court abused its

discretion by denying plaintiff’s motion to amend its complaint and by dismissing its

complaint. We conclude that the trial court did not err and that its order should be

affirmed.

I. Factual and Procedural Background

This appeal arises from a dispute over commercial development in The Atrium

condominiums, located at 112 Fayetteville Street, Raleigh. The Atrium is a three

story building that consists of six units designated as residential, and two units for

commercial use, one designated as an office unit and the other as a restaurant unit.

Plaintiff is a North Carolina limited liability company that owns several residential

units in The Atrium. Defendant Tenntex, a general partnership whose general

partner is defendant Peter Gillis, is the owner of the two commercial units of The

Atrium. In 2003, Tenntex incorporated defendant Atrium Condominiums of Raleigh

Owners Association (ACROA), a North Carolina non-profit corporation. In 2012,

Tenntex leased the restaurant unit of The Atrium to defendant Capital City Center,

Inc., (“Capital City”) a North Carolina corporation owned by defendant Daniel

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Lovenheim. Thereafter, Capital City obtained the necessary permits to operate the

Capital City Tavern in the restaurant unit of The Atrium, and began renovating the

unit for use as a private club.

On 24 April 2014, plaintiff filed suit against defendants Tenntex, ACROA,

Peter Gillis, and Capital City. Plaintiff’s complaint generally alleged that defendants

had failed to follow the requirements of N.C. Gen. Stat. § 47C-1-101 et. seq., known

as “The Condominium Act,” that Capital City’s renovation had not been approved by

The Atrium’s unit owners, that the construction violated plaintiff’s rights as an owner

of units in The Atrium, and that operation of Capital City Tavern would be

incompatible with the residential use of condominium units. Plaintiff further alleged

that defendants’ actions had decreased the value of its condominium units and had

“resulted in a cloud on the titles for the Residential Unit owners” of The Atrium.

Plaintiff sought a declaratory judgment regarding the parties’ rights, a temporary

restraining order and preliminary injunction to stop further construction, and a

permanent injunction against defendants Capital City and Tenntex. Plaintiff also

brought a claim for breach of fiduciary duty against defendants Peter Gillis and

ACROA.

On 13 May 2014, Judge Michael R. Morgan entered an order denying plaintiff’s

motion for a temporary restraining order to stop further renovation of the restaurant

unit of The Atrium. On 27 May 2014, defendants Tenntex, Peter Gillis, and Capital

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City filed a motion to dismiss plaintiff’s complaint pursuant to N.C. Gen. Stat. § 1A-

1 Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and

pursuant to N.C. Gen. Stat. § 1A-1 Rule 12(b)(7) for failure to join all necessary

parties, on the grounds that plaintiff had not joined all of the owners of condominium

units as parties. On 5 June 2014, Judge Donald H. Stephens conducted a hearing on

plaintiff’s motion for a preliminary injunction, and on defendants’ motion to quash

subpoenas served by plaintiff and for entry of a protective order. On 13 June 2014,

Judge Stephens entered an order granting in part and denying in part defendant’s

discovery motion, and stating the following regarding plaintiff’s motion for a

preliminary injunction:

IT IS THEREEORE ORDERED, ADJUDGED AND
DECREED that not all of the necessary parties have been
added to the Complaint and therefore the Hearing on
Plaintiff's Motion for Protective Order is not ripe for
determination and is therefore continued off the calendar.
Plaintiff has until June 20, 2014 to amend its complaint to
add additional parties. [A] hearing on plaintiff’s motion for
a preliminary injunction shall not be reset prior to the
addition of all necessary parties.

On 9 July 2014, nineteen days after the deadline set by Judge Stephens’ order,

plaintiff filed its First Amended Complaint. Plaintiff’s amended complaint sought

relief against the defendants named in its original complaint, and added as additional

defendants Frank L. Gillis and Thomas N. Gillis, partners in Tenntex; Robert O’Han,

Elizabeth F. Wyant, and Richard M. Gephart, the owners of residential units in The

Atrium; 112 Condos, LLC, a limited liability company which purchased the units

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owned by Mr. O’Han, Ms. Wyant, and Mr. Gephart on 11 July 2014; and Daniel A.

Lovenheim, the owner of Capital City and manager of 112 Condos, LLC. The

amended complaint sought the same relief as plaintiff’s original complaint and added

a claim of tortious interference with prospective economic advantage against 112

Condos, LLC, and Peter Gillis; added a claim for private nuisance against Capital

City and Mr. Lovenheim; and sought an injunction against Capital City and Mr.

Lovenheim to bar these defendants from continuing to create a “private nuisance.”

Plaintiff’s complaint did not allege any wrongdoing by the owners of the other

residential condominium units, and on 14 October 2014 plaintiff entered a voluntary

dismissal without prejudice as to its claims against Mr. O’Han, Ms. Wyant, and Mr.

Gephart. On the same day, plaintiff filed a motion to amend its First Amended

Complaint, in order to reflect the sale of these residential units to 112 Condos, LLC.

On 19 March 2015, defendants served on plaintiff a brief in support of

defendants’ motion to dismiss plaintiff’s complaint and defendants’ opposition to

plaintiff’s motion to amend its complaint. Defendants’ brief informed plaintiff that

defendants sought to dismiss plaintiff’s complaint “pursuant to Rules 5(a1), 12(6) and

41(b) of the North Carolina Rules of Civil Procedure[.]” In its brief, defendants argued

that plaintiff’s complaint should be dismissed either based on plaintiff’s untimely

compliance with Judge Stephens’ order allowing plaintiff to amend its complaint, or

under N.C. Gen. Stat. § 1A-1 Rule 41(b), for failure to prosecute its claims.

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The trial court conducted a hearing on plaintiff’s motion to amend its complaint

and defendants’ motion to dismiss plaintiff’s complaint on 23 March 2015. During

the hearing, plaintiff’s counsel stated that he had received defendants’ brief several

days earlier, and argued to the trial court that plaintiff had diligently prosecuted its

claims. On 23 March 2015, after the hearing had concluded, plaintiff provided the

trial court with a hand-delivered letter and some thirty pages of accompanying

documents in support of plaintiff’s argument that its complaint should not be

dismissed under N.C. Gen. Stat. § 1A-1, Rule 41(b) for failure to prosecute its claims.

The trial court entered an order which denied plaintiff’s motion to amend its

complaint, and dismissed plaintiff’s complaint with prejudice on 31 March 2015.

Although the trial court’s order does not specifically reference N.C. Gen. Stat. § 1A-1

Rule 41(b), the terms of the order make it clear, and the parties agree, that Rule 41(b)

was the basis of the trial court’s dismissal of plaintiff’s complaint. Plaintiff appealed

to this Court.

II. Standard of Review

The question of whether defendants’ dismissal motion complied with the

provisions of N.C. Gen. Stat. § 1A-1 Rule 7(b)(1) is a matter of law which is reviewed

de novo. See N.C. Alliance for Transp. Reform, Inc. v. N.C. Dep’t of Transp., 183 N.C.

App. 466, 469, 645 S.E.2d 105, 107, disc. review denied, 361 N.C. 569, 650 S.E.2d 812,

(2007) (noting that the issue for review “involves a question of law as to the sufficiency

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of the motion; therefore, our review . . . is de novo”). “[W]e review a trial court’s ruling

on a motion to amend pleadings for abuse of discretion.” Bartlett Milling Co. v.

Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 89, 665 S.E.2d 478, 490, disc.

review denied, 362 N.C. 679, 669 S.E.2d 741 (2008). The trial court’s decision to

dismiss a plaintiff’s complaint under N.C. Gen. Stat. § 1A-1, Rule 41(b) is also

reviewed for abuse of discretion. Whedon v. Whedon, 313 N.C. 200, 213, 328 S.E.2d

437, 439 (1985). It is long-established that a trial court abuses its discretion only if

its determination is “manifestly unsupported by reason” and is “so arbitrary that it

could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770,

777, 324 S.E.2d 829, 833 (1985).

III. Trial Court’s Dismissal of Plaintiff’s Complaint under Rule 41

Plaintiff argues first that the trial court erred by dismissing its complaint

under N.C. Gen. Stat. § 1A-1, Rule 41(b)(1), on the grounds that the motion filed by

defendants seeking dismissal of plaintiff’s complaint did not specify Rule 41 as a basis

for dismissal. We conclude that, on the facts of this case, plaintiff has not preserved

this issue for appellate review.

N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) (2013) provides in relevant part that “[a]n

application to the court for an order shall be by motion which . . . shall be made in

writing, shall state with particularity the grounds therefor, and shall set forth the

relief or order sought.” Plaintiff correctly points out that defendants’ motion for

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dismissal was based on N.C. Gen. Stat. § 1A-1, Rules 12(b)(6) and 12(b)(7), for failure

to state a claim for relief and failure to join all necessary parties. Defendants’ motion

for dismissal neither referenced Rule 41(b) nor alleged facts indicating that

defendants were seeking dismissal under Rule 41. On 19 March 2015, however,

defendants served plaintiff with a brief supporting their motion for dismissal, in

which defendants argued that plaintiff’s complaint should be dismissed under Rule

41. This was the theory that was argued by the parties at the hearing, and the trial

court dismissed plaintiff’s complaint based on Rule 41(b), for failure to prosecute its

claims. Thus, plaintiff is correct that defendants’ motion for dismissal did not

correspond to its pre-hearing brief, the arguments presented at the hearing, or the

trial court’s ultimate ruling. This conclusion does not, however, resolve the question

of whether plaintiff is entitled to any relief on the basis of the disparity between

defendants’ original motion and the theory that defendants pursued at the hearing.

We first note that plaintiff clearly comprehended the basis of defendants’

argument for dismissal of its complaint, and availed itself of the opportunity to

respond to defendants’ contentions. We next address the issue of whether plaintiff

properly preserved this argument for appellate review. In this regard, the facts of

the instant case are similar to those of Carlisle v. Keith, 169 N.C. App. 674, 614 S.E.2d

542 (2005). In Carlisle, the defendant filed a motion for dismissal of the plaintiff’s

complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) and Rule 12(e). Several

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months later, the defendant decided to pursue dismissal of some of the plaintiff’s

claims based on expiration of the statute of limitations. Two days prior to a hearing

on the defendant’s motion, the defendant provided the plaintiff with a memorandum

briefing the issue of the statute of limitations. The plaintiff filed a responsive

memorandum opposing the defendant’s statute of limitations argument. On appeal,

the plaintiff argued that “the trial court erred by considering defendant's statute of

limitations defense as to plaintiff's causes of action for fraud, negligent

misrepresentation, and civil conspiracy when defendant failed to affirmatively plead

such defense in his written motion.” Carlisle, 169 N.C. App. at 685-86, 614 S.E.2d

at 550. We reviewed the requirements of N.C. Gen. Stat. § 1A-1, Rule 7, but held that

the plaintiff had waived his objection to the procedural defect in the defendant’s

motion:

When a plaintiff responds to a motion to dismiss on the
merits, and fails to notify the trial court of an objection to
a procedural irregularity, he may be held to have waived
that objection. Otherwise, it is the trial court which is
deprived of an opportunity to remedy any error that may
have existed. This Court has held that a trial court may
consider a statute of limitations defense, though not raised
in a motion to dismiss, when “the non-movant has not been
surprised and has full opportunity to argue and present
evidence on the affirmative defense.”

Carlisle at 687, 614 S.E.2d at 551 (citing Thurston v. United States, 810 F.2d 438,

444 (4th Cir. 1987), and quoting Johnson v. N.C. Dept. of Transportation, 107 N.C.

App. 63, 66-67, 418 S.E.2d 700, 702 (1992)).

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The holding of Carlisle is in accord with the general rule governing

preservation of an issue for appellate review: N.C.R. App. P. 10(a)(1) (2013) states

that:

In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party's request, objection, or motion.

We next review the facts of the instant case in the context of both N.C.R. App.

P. 10 and the holding of Carlisle. On appeal, plaintiff contends that it “had no notice

of any ground for dismissal other than those set forth in [defendants’] Motion.”

However, defendants served plaintiff with a brief arguing for dismissal under Rule

41(b) four days prior to the hearing. During the hearing plaintiff admitted that it

had received this brief, yet plaintiff did not move for a continuance or argue that its

notice was insufficient to allow preparation. In addition, during the hearing, plaintiff

vigorously argued against dismissal of its complaint under N.C. Gen. Stat. § 1A-1,

Rule 41(b). Moreover, after the hearing of 23 March 2015 concluded, plaintiff hand-

delivered a letter to the trial court later the same day, accompanied by some thirty

pages of supporting documents, in order to persuade the trial court not to dismiss its

complaint for failure to prosecute. Plaintiff’s letter begins as follows:

Your Honor:
After leaving the courtroom today, I realized I should
address the allegation that Plaintiff “has not engaged in

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any meaningful discovery” and that Plaintiff is solely
responsible for the present posture of this action. The
movant has a considerable burden to show before a court
may dismiss under Rule 41(b). In Wilder v. Wilder, 146
N.C. App. 574, 578, 553 S.E.2d 425 (2001), the Court of
Appeals held that a trial court must address three factors
before dismissing an action for failure to prosecute under
Rule 41(b): “(1) whether the plaintiff acted in a manner
which deliberately or unreasonably delayed the matter; (2)
the amount of prejudice, if any, to the defendant; and (3)
the reason, if one exists, that sanctions short of dismissal
would not suffice.” In order to rule on the extraordinary
sanction of [an involuntary] dismissal with prejudice, the
Court should be aware of the following facts, which
Plaintiff submits results in no unreasonable delay or
prejudice to either party:

The remainder of plaintiff’s letter elaborated on its contention that its complaint was

not subject to dismissal under Rule 41(b). We conclude that plaintiff availed itself of

a full opportunity to respond to defendants’ motion on the merits.

We further conclude that plaintiff failed to comply with the requirements of

N.C.R. App. P. 10 for preservation of issues for appellate review. At one point during

the hearing, plaintiff commented on the fact that defendants were arguing for

dismissal on a different ground from that stated in their motion to dismiss:

PLAINTIFF: Their motion to dismiss, by the way, is under
Rule 6 and Rule 7, not under Rule 41. Obviously the Court
can have its own discretion regarding that, but their initial
motion was under Rules -- I’m sorry. 12(b)(6) and 12(b)(7)
and not under 41. Today -- and I received a motion or
amendment on Thursday saying that they moved from
Rule 12(b)(6) and 12(b)(7) over to Rule 41 for failure to
prosecute. That is not their motion that they filed. Their
motion is under 12(b)(6), 12(b)(7). That’s not what they’re
arguing. They're arguing 41. One, I don’t think they can do

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that, and then two, I don’t think they can establish
(inaudible).

These were plaintiff’s only statements on this issue. Even if we were to generously

construe plaintiff’s offhand comment that “I don’t think they can do that” to be an

objection to the trial court’s consideration of dismissal under Rule 41, plaintiff failed

to pursue the matter or “to obtain a ruling upon the party’s request, objection, or

motion,” as required by N.C.R. App. P. 10.

The requirement expressed in Rule 10[(a)] that litigants
raise an issue in the trial court before presenting it on
appeal goes “to the heart of the common law tradition and
[our] adversary system.” This Court has repeatedly
emphasized that Rule 10[(a)] “prevent[s] unnecessary new
trials caused by errors . . . that the [trial] court could have
corrected if brought to its attention at the proper time.” . .
. Rule 10[(a)] thus plays an integral role in preserving the
efficacy and integrity of the appellate process. We have
stressed that Rule 10[(a)](1) “is not simply a technical rule
of procedure” but shelters the trial judge from “an undue if
not impossible burden.”

Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195, 657

S.E.2d 361, 363 (2008) (quoting Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453,

457 n.1 (3d Cir. 1982), vacated and remanded on other grounds, 462 U.S. 523, 103 S.

Ct. 2541, 76 L. Ed. 2d 768 (1983), Wall v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d 571,

574 (1984), and State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983)) (other

citations omitted). In the present case, plaintiff actively participated in the hearing

on defendants’ motion to dismiss without moving for a continuance or objecting to the

trial court’s consideration of Rule 41 as a basis for dismissal. It was only after

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plaintiff lost at the trial level that it has pursued the argument on appeal that the

trial court lacked authority to base its dismissal on Rule 41. We hold that plaintiff

failed to preserve this issue for appellate review.

IV. Relationship of Dismissal Order to Earlier Pretrial Order

On 13 June 2014, Judge Stephens entered an order requiring plaintiff to file

an amended complaint adding all of the necessary parties no later than 20 June 2014.

Plaintiff failed to comply with this order and filed its amended complaint on 9 July

2014, nineteen days after the deadline expressed in the order. In addition, plaintiff’s

amended complaint failed to add all necessary parties, leading plaintiff to move for

leave to file a second amended complaint. On appeal, plaintiff argues that the trial

court’s order dismissing its complaint “is flawed and should be reversed because it

misinterprets the prior June 2014 Order and imposes more stringent sanctions than

the prior June 2014 Order required.” Plaintiff contends that the trial court erred

when it “dismissed the entire case based upon [plaintiff’s] failure to comply with the

prior June 2014 Order[.]” This argument is without merit.

The premise of plaintiff’s argument, that the trial court dismissed its complaint

as a sanction for plaintiff’s delay in filing an amended complaint, is not supported by

the provisions of the trial court’s order, which states in relevant part that:

This Cause being heard before the undersigned [judge]
presiding at the March 23, 2015 [session] of Wake County
Superior Court upon the duly calendared Motion to Amend
by Plaintiff Don’t Do It, Empire, LLC, and Motion to

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Dismiss by Defendants Tenntex, Peter H. Gillis, 112
Condos, LLC, Capital City Center, Inc., and Daniel A.
Lovenheim. . . . Defendants The Atrium Condominiums of
Raleigh Owners Association, Frank L. Gillis and Thomas
N. Gillis have not been served with a summons and
complaint in this matter and thus, did not appear. . . .
Having considered all the arguments of counsel, reviewed
the entire file, Defendants’ Brief in Support of Defendants’
Motion to Dismiss and in Opposition to Plaintiff’s Motion
to Amend and its attachments and Mr. Austin’s letter to
the Court dated March 23, 2015, and its attachments, the
Court finds:

(1) That on June 11, 2014, Judge Stephens ordered
Plaintiff to amend its complaint to add additional parties
by June 20, 2014. Plaintiff filed its amendment on July 9,
2014.

(2) That the Plaintiff has acted in a manner which has
deliberately and unreasonably delayed this matter,
including but not limited to:

a. failing to join all necessary parties in the first place,

b. failing to serve some of the defendants, and

c. failing to timely comply with discovery;

(3) That Plaintiffs actions have created a high degree of
prejudice to the Defendants; and

(4) That the Court has considered sanctions short of
dismissal with prejudice but finds that none of them suffice
as Plaintiff has:

a. demonstrated its willingness to deliberately delay this
action in an apparent effort to drive up costs for
defendants;

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b. made clear that it has no intention of cooperating with
or conducting discovery or moving the lawsuit forward in
any meaningful way; and

c. failed or refused to comply with the Court’s June 11,
2014, order to timely amend and move the case forward.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND
DECREED that:

(1) The Motion to Amend is DENIED for undue delay and
undue prejudice in light of Judge Stephens’ June 11, 2014,
Order.

(2) The Motion to Dismiss is GRANTED.

(3) The action is dismissed WITH PREJUDICE.

Plaintiff has failed to offer any argument in support of its contention that the

trial court’s dismissal of its complaint was “based upon [plaintiff’s] failure to comply

with the prior June 2014 Order.” Our review of the trial court’s order indicates that

plaintiff’s complaint was dismissed, as plaintiff argues elsewhere in its appellate

brief, pursuant to Rule 41(b), based upon the trial court’s determination that plaintiff

had failed to prosecute its action. Plaintiff’s failure to comply with Judge Stephens’

order was simply noted as factual evidence of plaintiff’s unreasonable delay in

prosecuting the case. Plaintiff is not entitled to relief on the basis of this argument.

V. Relationship of Dismissal Order to Plaintiff’s Failure to Add Necessary

Parties to its Complaint

In its next argument, plaintiff contends that the trial court erred “by

dismissing Plaintiff’s separate claims against individual parties based upon

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[plaintiff’s] failure to add necessary parties.” Plaintiff argues that the trial court

erred by dismissing its complaint in its entirety, on the grounds that some of the

claims stated in its complaint might have proceeded without the addition of parties

who were necessary for the litigation of other claims. This argument appears to rely

on the premise that the trial court’s decision to dismiss plaintiff’s complaint was

based on its failure to add all necessary parties. As discussed above, the basis of the

trial court’s dismissal of plaintiff’s complaint was the trial court’s determination that

plaintiff had intentionally failed to prosecute its action and had unreasonably delayed

the litigation of this matter. Plaintiff’s failure to properly and promptly serve all

necessary parties was evidence of plaintiff’s recalcitrance, but was not the legal basis

of the trial court’s order. This argument is without merit.

VI. Trial Court’s Exercise of Discretion

In its last two arguments, plaintiff asserts that the trial court abused its

discretion by dismissing its complaint pursuant to Rule 41, and by denying its motion

to amend its complaint. Plaintiff contends generally that the trial court’s findings

and conclusions are “contrary to the record.” In support of its position, plaintiff

directs our attention to evidence that might have supported a result more favorable

to plaintiff. It is axiomatic that “ ‘it is within a trial court’s discretion to determine

the weight and credibility that should be given to all evidence that is presented during

the trial.’ We will not reweigh the evidence presented to the trial court[.]” Clark v.

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Dyer, __ N.C. App. __, __, 762 S.E.2d 838, 848 (2014) (quoting Phelps v. Phelps, 337

N.C. 344, 357, 446 S.E.2d 17, 25 (1994)), cert. denied, __ N.C. __, 778 S.E.2d 279

(2015). Plaintiff also renews its argument that the trial court “improperly considered”

arguments related to plaintiff’s failure to prosecute its case and the prejudice that

resulted to defendants. We have determined that plaintiff failed to preserve this

issue for review. We conclude that plaintiff has failed to establish that the trial court

abused its discretion either by denying its motion to amend, or by dismissing its

complaint.

For the reasons discussed above, we conclude that the trial court did not err

and that its order should be

AFFIRMED.

Judges BRYANT and DILLON concur.

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