IN THE COURT OF APPEALS OF NORTH CAROLINA
No. 16-1187
Filed: 20 February 2018
Wake County, No. 15 CVS 11985
THE ESTATE OF EDUARDO ROBERTO RIVAS,
by and through Administrator MILETSY SOTO,
and MILETSY SOTO Individually, Plaintiffs,
v.
FRED SMITH CONSTRUCTION, INC., Defendant.
Appeal by plaintiffs from order entered on 27 June 2016 by Judge Orlando F.
Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals on 19
April 2017.
Poyner Spruill, LLP, by Cynthia L. Van Horne, and the Law Offices of Wade
Byrd, P.A., by Wade E. Byrd, for plaintiffs-appellants.
Dean & Gibson, PLLC, by Michael G. Gibson and Michael R. Haigler, for
defendant-appellee.
BERGER, Judge.
The Estate of Eduardo Roberto Rivas, by and through Miletsy Soto as
administrator and individually, (“Plaintiffs”) appeal from a June 27, 2016 order
granting summary judgment in favor of Fred Smith Construction, Inc. (“Defendant”).
Plaintiffs argue the trial court erred by granting Defendant’s motion and denying
their motions under N.C. Gen. Stat. § 1A-1, Rule 56(f) and Rule 15. We disagree.
RIVAS V. FRED SMITH CONSTR., INC.
Opinion of the Court
Factual and Procedural Background
In March 2012, the State of North Carolina Department of Transportation
(“NCDOT”) awarded Contract No. C202996 (“Smith Project”) to “FSC II LLC DBA
FRED SMITH COMPANY” for 11.26 miles of road construction beginning at the
Chatham County line on US-1 to US-64. The Smith Project was completed that same
year.
In the early morning hours on November 27, 2013, Eduardo Roberto Rivas
(“Rivas”) hydroplaned off of US-1 in Cary, North Carolina. Upon exiting his vehicle
to inspect for damage, Rivas was fatally struck by an oncoming vehicle that
hydroplaned at the same location. Cary Police Department’s Accident Reconstruction
concluded neither vehicle was negligently or carelessly operated at the time of the
accident.
Plaintiffs filed a complaint in the Wake County Superior Court against
Defendant for negligence, breach of contract, third-party beneficiary claims, and
punitive damages. On April 6, 2016, Defendant filed a motion for summary judgment
pursuant to Rule 56 asserting it was incorrectly named as a party, and the Smith
Project was performed in accordance with NCDOT standards. Plaintiffs filed a
memorandum in opposition to Defendant’s motion for summary judgement and
requested leave from the trial court to amend their complaint and to allow further
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Opinion of the Court
discovery. The trial court granted Defendant’s motion for summary judgment and
dismissed Plaintiffs’ claims with prejudice. Plaintiffs timely filed Notice of Appeal.
Analysis
On appeal, Plaintiffs argue the trial court erred in granting Defendant’s motion
under Rule 56 and denying their motions under Rule 56(f) and Rule 15. Specifically,
Plaintiffs assert that there existed a genuine issue of material fact as to whether
Defendant was a mere instrumentality of a third party, and that Plaintiffs should be
permitted to amend their complaint after the statute of limitations had run to name
the correct entity as a party to the suit. We disagree.
I. Defendant’s Rule 56 Motion
“Our standard of review of an appeal from summary judgment is de novo . . . .”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).
“[S]ummary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that
there is no genuine issue of material fact and that any party is entitled to judgment
as a matter of law.’ ” Austin Maint. & Constr., Inc. v. Crowder Constr. Co., 224 N.C.
App. 401, 407, 742 S.E.2d 535, 540 (2012) (citing N.C. Gen. Stat. § 1A-1, Rule 56(c)).
“The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact.” Id. (citation and
quotation marks omitted). “If the moving party satisfies its burden of proof, then the
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Opinion of the Court
burden shifts to the non-moving party to ‘set forth specific facts showing that there is
a genuine issue for trial.’ ” Lowe v. Bradford, 305 N.C. 366, 369-70, 289 S.E.2d 363,
366 (1982) (quoting N.C. Gen. Stat. § 1A-1, Rule 56(e)). In determining that there
are no genuine issues of material fact, “[i]t is not the trial court’s role to resolve
conflicts in the evidence.” Wallen v. Riverside Sports Ctr., 173 N.C. App. 408, 413,
618 S.E.2d 858, 862 (2005) (citation omitted). Rather, the court’s role is only to
determine whether such issues exist. Id. (citation omitted).
In the case sub judice, Defendant submitted a memorandum in support of
summary judgment with attached affidavits and exhibits to the trial court.
Defendants argued at the motion hearing that Plaintiffs had sued the wrong entity,
noting that Defendant answered the complaint prior to expiration of the statute of
limitations. Said answer specifically denied being the company that had built the
section of the roadway in question.
Plaintiffs submitted a memorandum with an affidavit and also argued at the
motion hearing that Defendant was part of an overlapping structure of corporations
that operate as alter egos and mere instrumentalities of each other, and that further
discovery would be necessary to resolve this issue. Specifically, Plaintiffs argued that
the two entities, FSC II and Defendant, shared a business address, overlapping
personnel, and common ownership by a third entity. However, Plaintiffs failed to
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Opinion of the Court
offer substantive evidence to create a disputed issue of material fact to withstand
summary judgment.
To prove an alter ego relationship between corporate entities, a claimant must
establish three things:
(1) Control, not mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
so that the corporate entity as to this transaction had at
the time no separate mind, will or existence of its own; and
(2) Such control must have been used by the defendant to
commit fraud or wrong, to perpetrate the violation of a
statutory or other positive legal duty, or a dishonest and
unjust act in contravention of plaintiff’s legal rights; and
(3) The aforesaid control and breach of duty must
proximately cause the injury or unjust loss complained of.
Fischer Inv. Capital, Inc. v. Catawba Dev. Corp., 200 N.C. App. 644, 650, 689 S.E.2d
143, 147 (2009) (citation omitted). Plaintiffs contended that the following evidence
was sufficient to create a disputed issue of material fact regarding the alter ego
relationship:
(1) Defendant, which is owned by Construction Partners, Inc., in turn owns
FSC II, a limited liability company;
(2) Defendant has no employees and earns no revenue;
(3) Defendant was created by Construction Partners, Inc. in 2011 to serve as
the legal owner of FSC II for tax and operating purposes;
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Opinion of the Court
(4) FSC II does business as Fred Smith Company, and Defendant, as legal
owner of FSC II, also has the right to do business as Fred Smith Company;
(5) FSC II’s sole member manager also serves as registered agent for
Defendant; and
(6) FSC II and Defendant share the same business address, contrary to the
deposition testimony by witnesses for Defendant.
Plaintiffs’ evidence was insufficient to create a genuine issue of material fact
regarding the alleged alter ego relationship. Instead, Plaintiffs’ evidence merely
gives rise to conjecture and speculation that Defendant and its affiliate are alter egos
of one another. Plaintiffs contend the evidence presented is sufficient to withstand a
motion for summary judgment in this regard, relying on prior decisions by this Court.
However, these decisions are distinguishable both factually and procedurally from
the case sub judice and are not applicable as precedent. See Timber Integrated Invs.,
LLC v. Welch, 225 N.C. App. 641, 653, 737 S.E.2d 809, 818 (2013) (reversing summary
judgment because the trial court refused to review material evidence offered at the
summary judgment hearing); see also Monteau v. Reis Trucking & Constr., Inc., 147
N.C. App. 121, 127, 553 S.E.2d 709, 713 (2001) (reversing summary judgment where
plaintiff submitted evidence that corporate defendant was undercapitalized,
commingled funds with individual owners, failed to meet payroll, and failed to keep
formal financial records).
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RIVAS V. FRED SMITH CONSTR., INC.
Opinion of the Court
Plaintiffs argued in an oral 56(f) motion that it would be premature to grant
summary judgment at that juncture in the proceeding. Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make
such other order as is just.
N.C. Gen. Stat. § 1A-1, Rule 56(f) (2017) (emphasis added). Because discovery is used
to disclose “any relevant unprivileged materials and information, . . . motions for
summary judgment generally should not be decided until all parties are prepared to
present their contentions on all issues raised.” Ussery v. Taylor, 156 N.C. App. 684,
686, 577 S.E.2d 159, 161 (2003) (citations omitted). Nevertheless, the trial court’s
decision to grant or deny summary judgment before the completion of discovery will
only be reversed upon a showing of a manifest abuse of discretion. See Evans v.
Appert, 91 N.C. App. 362, 367-68, 372 S.E.2d 94, 97, disc. review denied, 323 N.C.
623, 374 S.E.2d 584 (1988); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d
829, 833 (1985) (“A ruling committed to a trial court’s discretion is to be accorded
great deference and will be upset only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision.”) Therefore, the trial court’s
decision to disallow further discovery is reviewed under an abuse of discretion
standard.
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RIVAS V. FRED SMITH CONSTR., INC.
Opinion of the Court
Here, nine months and twenty-four days elapsed from the filing of Plaintiffs’
Complaint to the trial court’s order for summary judgment. During this time,
Defendant produced affidavits, corporate records, and depositions from Alan Palmer
(“Palmer”) and F. Jule Smith, III (“Jule Smith”). The trial court inquired: “[W]hat do
you believe the evidence that you are looking for is going to show? Defense counsel
says that . . . your evidence is not going to show anything different than what the
discovery already shows now.” Plaintiffs’ counsel stated that it spoke directly to the
existence of a genuine dispute of material fact, such as potential overlapping officers
or financial situations.
Regardless of whether outstanding discovery requests existed at the time
summary judgment was ordered, Plaintiffs failed to meet their burden of showing the
trial court abused its discretion by granting summary judgment. Defendant produced
sufficient information that Plaintiffs had named the wrong entity, and failed to
amend or otherwise correct the error in the complaint. The information set forth in
discovery included affidavits, articles of incorporation, and depositions sufficient for
the trial court to make a reasoned ruling on Plaintiffs’ and Defendant’s motions. Even
if Plaintiffs’ arguments are persuasive, we find no abuse of discretion on behalf of the
trial court’s decision to deny Plaintiffs’ Rule 56(f) motion.
Furthermore, we hold that there was no genuine issue of material fact before
the trial court regarding Defendant’s liability. Plaintiffs acknowledged that they
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Opinion of the Court
sued the wrong legal entity. Thus, Defendant was entitled to judgment as a matter
of law. The trial court did not err when granting Defendant’s Rule 56 motion.
II. Plaintiffs’ Rule 15 Motion
Plaintiffs contend the trial court erred by denying their Rule 15 motion to
amend their complaint to include the proper name of Defendant on the grounds of
alter ego and mere instrumentality, despite the statute of limitations having expired.
We disagree.
Rule 15 provides in pertinent part:
A party may amend his pleading once as a matter of course
at any time before a responsive pleading is served . . . .
Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires.
N.C. Gen. Stat. § 1A-1, Rule 15(a) (2017).
Generally, Rule 15 is construed liberally to allow
amendments where the opposing party will not be
materially prejudiced. . . . [O]ur standard of review for
motions to amend pleadings requires a showing that the
trial court abused its discretion. Denying a motion to
amend without any justifying reason appearing for the
denial is an abuse of discretion. However, proper reasons
for denying a motion to amend include undue delay by the
moving party[,] . . . unfair prejudice to the nonmoving
party[,] . . . bad faith, futility of amendment, and repeated
failure to cure defects by previous amendments. When the
trial court states no reason for its ruling on a motion to
amend, this Court may examine any apparent reasons for
the ruling.
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Opinion of the Court
Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C. App. 160, 165-66, 510
S.E.2d 690, 694 (citations omitted), disc. review denied, 350 N.C. 379, 536 S.E.2d 70
(1999).
“Our Supreme Court has stated that ‘substitution in the case of a misnomer is
not considered substitution of new parties, but a correction in the description of the
party or parties actually served.’ ” Franklin v. Winn Dixie Raleigh, Inc., 117 N.C.
App. 28, 34, 450 S.E.2d 24, 28 (1994) (brackets omitted) (quoting Blue Ridge Electric
Membership Corporation v. Grannis Bros. Inc., 231 N.C. 716, 720, 58 S.E.2d 748, 751
(1950)), aff’d per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995). “A misnomer is a
‘mistake in name; giving an incorrect name to the person in accusation, indictment,
pleading, deed, or other instrument.’ ” Pierce v. Johnson, 154 N.C. App. 34, 39, 571
S.E.2d 661, 665 (2002) (brackets omitted) (quoting Black’s Law Dictionary (6th ed.
1990)). If “the misnomer or misdescription does not leave in doubt the identity of the
party intended to be sued, . . . the misnomer or misdescription may be corrected by
amendment at any stage of the suit.” Franklin, 117 N.C. App. at 34, 450 S.E.2d at
28 (citation omitted). “However, if the amendment amounts to a substitution or
entire change of parties, . . . the amendment will not be allowed.” Id. (citation and
quotation marks omitted). Accordingly, an attempt to amend a complaint to include
a “separate and distinct corporation” at the time the cause of action accrues amounts
to adding a new party rather than correcting a misnomer. See id. at 35, 450 S.E.2d
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Opinion of the Court
at 28. Substantive mistakes, such as naming a wrong corporate defendant, are
potentially fatal to actions. Id.
Rule 15 allows for the relation-back doctrine to apply when amending a
pleading to assert claims, but it does not apply to parties after the statute of
limitations expires. Bailey v. Handee Hugo’s, Inc., 173 N.C. App. 723, 726-27, 620
S.E.2d 312, 315 (2005) (emphasis added) (citation omitted). See also N.C. Gen. Stat.
§ 1A-1, Rule 15(c) (2017) (“A claim asserted in an amended pleading is deemed to
have been interposed at the time the claim in the original pleading was
interposed . . . .”). “If the effect of the amendment is to substitute for the defendant
a new party, or add another party, such amendment amounts to a new and
independent cause of action and cannot be permitted when the statute of limitations
has run.” Bailey, 173 N.C. App. at 726, 620 S.E.2d at 315 (emphasis added) (citation
omitted).
Here, Plaintiffs sought to amend their complaint to add FSC II, d/b/a Fred
Smith Company, after the statute of limitations had expired. Plaintiffs filed their
complaint on September 3, 2015, and the statute of limitations ran on November 27,
2015, twenty-two days after Defendant had denied being the correct company in their
answer in response to Plaintiffs’ complaint. Plaintiffs requested to amend their
complaint by leave of the trial court more than six months later by oral motion on
June 5, 2016.
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Opinion of the Court
In the case sub judice, the statute of limitations expired 191 days before
Plaintiffs moved to amend. Accordingly, amending the complaint to add FSC II, d/b/a
Fred Smith Company, would amount to adding a new party and would be futile since
the statute of limitations had expired, thus the trial court did not abuse its discretion
by denying Plaintiff’s Rule 15 motion.
Conclusion
The trial court did not err in granting Defendant’s motion for summary
judgment, and we affirm the trial court’s denial of Plaintiffs’ Rule 56(f) motion and
Rule 15 motion to amend their complaint.
AFFIRMED.
Judges ELMORE and INMAN concur.
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Estate of Rivas by and Through Soto v. Fred Smith Construction, Inc.
Court: Court of Appeals of North Carolina
Date filed: 2018-02-20
Citations: 812 S.E.2d 867, 258 N.C. App. 13
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