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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
RICHARD W. BAILEY, Plaintiff, v. HANDEE HUGO'S, INC., AND
SAMPSON-BLADEN OIL COMPANY, INCORPORATED, Defendants
Filed: 18 October 2005
1. Parties--motion to amend to add new party--expiration of statute of limitations--no
relation back--equitable estoppel inapplicable
The trial court did not abuse its discretion in a slip and fall case by denying plaintiff's
motion to amend to add a new party even though the insurance company misrepresented its
insured for the pertinent property, because: (1) the trial court properly stated that the amendment
to add a new party would be futile and unduly prejudicial; (2) the statute of limitations had run
and would not stand against a new party; (3) relation-back does not apply; (4) equitable estoppel
was inapplicable when a search of the Register of Deeds records would have revealed the owner
of the land on which the incident occurred as well as the lease extended to the operator of the
store; and (5) plaintiff failed to present his alternative theories on appeal before the trial court and
thus they are waived.
2. Premises Liability--slip and fall--motion to dismiss--failure to name responsible
The trial court did not err in a slip and fall case by granting defendants' motion to dismiss
under N.C.G.S. § 1A-1, Rule 12(b)(7), because: (1) the two named parties in the lawsuit had no
responsibility for the premises where the incident at issue occurred; and (2) the party which
plaintiff sought to add was the party who operated the premises where the incident occurred,
there was no way for the court to cure the defect of failing to join the responsible party where the
statute of limitations had expired, and any attempt to add the responsible party would have been
3. Premises Liability--slip and fall--summary judgment
The trial court did not err in a slip and fall case by granting defendants' motion for
summary judgment, because: (1) the affidavits, depositions, and discovery responses showed
there was no named party in the case which could be held responsible; (2) a sister corporation
cannot be held responsible for the acts of another corporation without evidence of complete
dominion or control; and (3) there was no evidence presented by plaintiff under which either
named party could be held responsible.
4. Appeal and Error--preservation of issues--failure to cite as assignment of error
Although plaintiff contends the trial court erred by dismissing this slip and fall action
with prejudice, this argument is deemed abandoned because this contention was not cited as an
assignment of error.
Appeal by plaintiff from order entered 11 August 2004 by Judge
Gary L. Locklear in Johnston County Superior Court. Heard in the
Court of Appeals 14 September 2005.
Bailey & Dixon, L.L.P., by Gary S. Parsons, Donald T. O'Toole;
and Kirk, Kirk, Howell, Cutler & Thomas, L.L.P., by Philip G.
Kirk, for plaintiff appellant.
Maupin Taylor, P.A., by Elizabeth D. Scott and Jonathan R.
Bumgarner, for defendant appellees.
Richard W. Bailey (plaintiff) appeals from order denying his
motion to amend to add a new party, dismissing for failure to join
a necessary party pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(7)
(2003) and pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). We
Bailey alleged that he was injured in a slip and fall at the
Handee Hugo's, Inc. (Handee Hugo's), convenience store located at
3220 Duraleigh Road in Raleigh, North Carolina. After the fall,
Bailey was contacted by an independent adjusting company regarding
his fall who indicated that they represented Federated Mutual
Insurance Company (Federated) who insured Handee Hugo's. On 20
August 2001, Bailey received a letter from a claims supervisor at
Federated which indicated that the correspondence was in regard to
an accident that occurred on April 18, 2001, at Handee Hugo's,
3220 Duraleigh Road, Raleigh, North Carolina and that it was
written on behalf of its insured, Sampson-Bladen Oil Co., Inc.
(Sampson-Bladen). The letter further requested documentation
regarding the accident and Bailey's signature on a medical release
form in order to obtain records on the behalf of its insured.Later, in correspondence between Bailey's attorney and Federated,
Mr. Bailey's attorney requested verification of the insured party
and was told once more that Sampson-Bladen Oil Co., Inc. was the
insured because they operate the store where the accident occurred.
On 29 March 2004 Bailey filed a complaint against Handee
Hugo's, Inc. (Handee Hugo's), and Sampson-Bladen. On 27 May 2004,
defendants Handee Hugo's and Sampson-Bladen filed a motion to
dismiss and answer. In the answer, Handee Hugo's and Sampson-
Bladen raised Rules 12(b)(6) and 12(b)(7) motions to dismiss and
alleged that neither Handee Hugo's nor Sampson-Bladen owned,
leased, or operated the premises where Bailey's fall was alleged to
have occurred. Mr. Bailey conducted discovery of Rogers Howell
Clark, President of Sampson-Bladen. Clark testified that Sampson-
Bladen and United Energy, Inc. (United) were sister corporations
and that in fact United was the entity that leased the premises and
operated the store.
On 19 July 2004, after several depositions had been taken,
Bailey filed a motion to amend and add a new party, United,
pursuant to N.C. Gen. Stat. § 1A-1, Rule 15 (2003). On 20 July
2004, Handee Hugo's and Sampson-Bladen filed a motion to dismiss
for failure to join a necessary party under N.C. Gen. Stat. § 1A-1,
Rule 12(b)(7) and failure to state a claim upon which relief could
be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Along with
the motion to dismiss, Handee Hugo's and Sampson-Bladen submitted
affidavits and exhibits showing that United was the party who
leased and operated the store and that neither of the other twoparties had any responsibility. Exhibits A through E contained
certified copies of titles and transfers of property interest
regarding the convenience store on 3220 Duraleigh Road from the
Wake County Register of Deeds Office. The records show that at the
time of the accident, Haddon and Irma Clark (the Clarks) owned the
property where the store was located, having acquired it in 1995
from Olde Raleigh Shopping Center Associates Limited Partnership
(Olde Raleigh). Olde Raleigh, before the transfer of title, had
leased the property to Sohio Oil Co. (Sohio), now known as BP
Exploration Oil, Inc. (BP). In 1993, Sohio assigned its rights and
obligations under the lease to United. When the Clarks purchased
the land from Olde Raleigh, they assumed all rights and obligations
as lessor under the lease. Each of these transfers of property
interest was recorded in the Wake County Register of Deeds.
On 11 August 2004 an order was entered denying Bailey's motion
to amend finding that it would be futile and unduly prejudicial to
the parties where the statute of limitations had run as to Bailey's
action. The order also stated that Bailey had failed to join a
necessary party under Rule 12(b)(7). Further the court considered
matters outside of the pleadings in the form of exhibits,
depositions, affidavits and discovery responses, converting the
Rule 12(b)(6) motion into a motion for summary judgment. The order
also granted summary judgment in favor of Handee Hugo's and
Sampson-Bladen where there was no genuine issue of material fact.
Bailey's claims were thereby dismissed with prejudice.
Bailey now appeals.
 The trial court disposed of the instant case on two
grounds: failure to join a necessary party pursuant to N.C. Gen.
Stat. § 1A-1, Rule 12(b)(7) and summary judgment pursuant to N.C.
Gen. Stat. § 1A-1, Rule 56. On appeal, Bailey first contends that
the trial court erred in denying its motion to amend to add a new
party. We disagree.
A motion to amend is left to the sound discretion of the trial
court, and a denial of such motion is reviewable only upon a clear
showing of abuse of discretion. Walker v. Sloan, 137 N.C. App. 387,
402, 529 S.E.2d 236, 247 (2000). The trial court's ruling 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. White v. White, 312 N.C. 770, 777, 324 S.E.2d
829, 833 (1985). If the trial court articulates a clear reason for
denying the motion to amend, then our review ends. Nationsbank of
North Carolina v. Baines, 116 N.C. App. 263, 268, 447 S.E.2d 812,
In the instant case, the trial judge stated proper reasons in
the order for denying the motion to amend: that an amendment to add
a new party would be futile and unduly prejudicial. See id.
(stating that acceptable reasons for which a motion to amend may be
denied are undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice and futility of the
amendment). Moreover, the statute of limitations as to the
instant action had run and would not stand against a new party. (Ifthe 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. Callicutt v. Motor Co., 37 N.C.
App. 210, 245 S.E.2d 558 (1978)). Furthermore, relation-back does
not apply. (While Rule 15 of the North Carolina Rules of Civil
Procedure permits the relation-back doctrine to extend periods for
pursuing claims, it does not apply to parties. Estate of Fennell v.
Stephenson, 354 N.C. 327, 554 S.E.2d 629 (2001)). It cannot be said
that the decision was not a reasoned one nor that there was an
abuse of discretion. A clear reason for denial was stated and
therefore our review ends.
Bailey argues on appeal that the principles of equitable
estoppel apply in accordance with the decision of this Court in
Hatcher v. Flockhart Foods, Inc., 161 N.C. App. 706, 589 S.E.2d 140
(2003), disc. review denied, 358 N.C. 234, 595 S.E.2d 150 (2004).
However, there are detrimental differences between the Hatcher case
and the instant case. In the Hatcher case the Court applied
equitable estoppel where there was active misrepresentation on the
part of the insurance company as to whom the insured was and,
furthermore, there was no public record of the lease which
indicated the responsible party on file in the Register of Deeds.
In the instant case a search of the Register of Deeds would have
revealed the owner of the land on which the incident occurred as
well as the lease extended to the operator of the store. The policy of this Court is to disallow one from gaining from
their own active misrepresentation. See Hatcher, 161 N.C. App. 706,
589 S.E.2d 140. We do not condone the actions of the insurance
company in this case and in fact find the misrepresentation
reprehensible. However, this Court also holds that due diligence
must be exercised in litigation. Where all transfers of property
interest were a matter of public record, it is not an onerous
burden for this Court to impose the task of a title search upon one
filing suit. This assignment of error is overruled.
While Bailey asserts alternative theories on appeal for
allowing the motion to amend, none of these theories were brought
before the trial court. The record before this Court is devoid of
any indication of alternative arguments before the trial court.
This Court has repeatedly stated that a party cannot swap horses
between courts in order to obtain a better mount on appeal. King
v. Owen, 166 N.C. App. 246, 250, 601 S.E.2d 326, 328 (2004).
 Next, Bailey contends that the trial court erred in
granting the motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1,
Rule 12(b)(7). We disagree.
Necessary parties must be joined in an action. Crosrol
Carding Developments v. Gunter & Cooke,
12 N.C. App. 448, 183
S.E.2d 834 (1971). A person is a necessary party to an action when
he is so vitally interested in the controversy involved in the
action that a valid judgment cannot be rendered in the action
completely and finally determining the controversy without hispresence as a party. Strickland v. Hughes
, 273 N.C. 481, 160 S.E.2d
313 (1968). [D]ismissal under Rule 12(b)(7) is proper only when
the defect cannot be cured[.] Howell v. Fisher
, 49 N.C. App. 488,
491, 272 S.E.2d 19, 22, cert. denied
, 302 N.C. 218, 277 S.E.2d 69
In the instant case, the two named parties in the lawsuit had
no responsibility for the premises where the incident at issue
occurred. Moreover, the party which Bailey sought to add, United,
was the party who operated the premises where the incident
occurred. The court found that the statute of limitations had run
as to Bailey's action, and there is no contention on appeal that
the statute of limitations had not expired. There was no way for
the court to cure the defect of failing to join the responsible
party where the statute of limitations had expired and any attempt
to add them as a party would have been futile. This assignment of
error is also overruled.
 Lastly, plaintiff contends that the trial court erred in
granting defendants' motion for summary judgment. We disagree.
Matters outside the pleadings may be presented to the court
and considered by it on a motion to dismiss under N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6), in which case the motion will be treated as
one for summary judgment under N.C. Gen. Stat. § 1A-1, Rule 56.
Summary judgment is proper if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to anymaterial fact and that any party is entitled to a judgment as a
matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c). On a motion for
summary judgment, [t]he evidence is to be viewed in the light most
favorable to the nonmoving party. Moore v. Coachmen Industries,
, 129 N.C. App. 389, 394, 499 S.E.2d 772, 775 (1998). When
determining whether the trial court properly ruled on a motion for
summary judgment, this Court conducts a de novo
Electric and Power Co. v. Tillett,
80 N.C. App. 383, 385, 343
S.E.2d 188, 191, cert. denied
, 317 N.C. 715, 347 S.E.2d 457 (1986).
The affidavits, depositions and discovery responses clearly
showed that there was no party which could be held responsible
named in the case. Sampson-Bladen, as a sister corporation of
United, could not be held responsible. (One corporation is not
responsible for the acts of another corporation without evidence of
complete domination and control. See Glenn v. Wagner
, 313 N.C. 450,
454-59, 329 S.E.2d 326, 330-33 (1985)). Moreover, there was no
evidence presented by Bailey under which either named party could
be responsible. Where no recovery could be had by Bailey, it was
proper for the court to dismiss the case.
 Bailey also attempts to argue on appeal that it was error
for the trial judge to dismiss the action with prejudice. However,
this contention was not cited as an assignment of error and is
therefore abandoned. (All exceptions not set out are deemed
abandoned. See State v. Biggerstaff
, 226 N.C. 603, 39 S.E.2d 619
Accordingly, we affirm the denial of the motion to amend to
add a new party and the granting of the motion to dismiss pursuant
to N.C. Gen. Stat. § 1A-1, Rules 12(b)(7) and 12(b)(6).
Judges McGEE and JACKSON concur.
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