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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 November 2007
MARY KATHLEEN LUDEMANN,
Individually and as
Administratrix of the
Estate of LAUREN ALINE LUDEMANN
No. 06 CVS 3887
BRADFORD CLINIC, INC.,
Appeal by Plaintiff from order entered 3 October 2006 by Judge
Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in
the Court of Appeals 29 August 2007.
Troutman Sanders LLP, by Patricia P. Kerner, for Plaintiff-
Parker Poe Adams & Bernstein, LLP, by Harvey L. Cosper, Jr.,
Richard J. Rivera and Leigh A. Kite, for Defendant-Appellee.
I. FACTS AND PROCEDURE
Plaintiff filed a complaint on 12 June 2006 against Bradford
Clinic, Inc., Presbyterian Healthcare Associates Corp.,
Presbyterian Specialty Hospital Corp., Presbyterian Regional
Healthcare Corp., Novant Health Southern Piedmont Region, LLC, and
Novant Health, Inc., alleging wrongful death of Plaintiff's
daughter as a result of negligent obstetrical care by the doctors
and staff of the Bradford Clinic. The statute of limitations for
Plaintiff's action expired the following day. On 27 July 2006, Defendant Bradford Clinic, Inc. filed a
Motion to Dismiss and Alternative Motion for Summary Judgment on
the grounds that they were not a proper party to the action. They
argued that Women's Regional Healthcare, and not the Bradford
Clinic, Inc., owned the Bradford Clinic at the time of
Plaintiff's prenatal care and the birth of her child. On 6
September 2006, Plaintiff filed a Motion to Amend Complaint to name
Women's Regional Healthcare as the sole defendant. Plaintiff
voluntarily dismissed the other Defendants.
After hearing the motions, the Honorable Yvonne Mims Evans
entered an order granting Defendant's Motion for Summary Judgment
and denying Plaintiff's Motion to Amend. Plaintiff timely filed
Notice of Appeal. The sole issue on appeal is whether Judge Evans
erred in denying Plaintiff's Motion to Amend the complaint.
A. Bradford Clinic
The Bradford Clinic was the trade name of an obstetrical and
gynecological practice that provided service to women in
Mecklenburg County. Ownership of the Bradford Clinic changed a
number of times after 1970. Between 1970 and 1994, the Bradford
Clinic, P.A. did business as the Bradford Clinic. On 12 May
1994, the Bradford Clinic, P.A. filed Articles of Restatement with
the North Carolina Secretary of State and changed from the Bradford
Clinic, P.A. to the Bradford Clinic, Inc. On 18 May 1994, the
Bradford Clinic, Inc. ceased to exist upon a merger into
Presbyterian Healthcare Associates Corp. Presbyterian Healthcare
Associates Corp. subsequently operated and did business as theBradford Clinic until 22 March 1996 when it merged into
Presbyterian Specialty Hospital Corp., with the surviving
corporation becoming Presbyterian Regional Healthcare Corp.
Presbyterian Regional Healthcare Corp. then continued the operation
of the Bradford Clinic.
On 2 May 2000, Women's Regional Healthcare, P.A. (WRHC)
filed Articles of Incorporation with the North Carolina Secretary
of State. On 30 June 2000, Presbyterian Regional Healthcare Corp.
transferred the Bradford Clinic along with certain assets to the
physicians who practiced at the Bradford Clinic and WRHC.
Between 1 July 2000 and 30 June 2005, WRHC operated and did
business as the Bradford Clinic, and the physicians and nurses
who provided care to patients at the Bradford Clinic were
employees of WRHC. During this time period, WRHC had no business
relationship with the former corporation, Bradford Clinic, Inc. On
22 August 2002, WRHC filed a Certificate of Assumed Name with the
Register of Deeds for Mecklenburg County stating that it would
operate under the assumed name of the Bradford Clinic.
B. MAG Mutual Insurance Company
Prior to filing the complaint, Plaintiff's attorney sent a
letter addressed to The Bradford Clinic, P.A., explaining that he
represented the Estate of Lauren Aline Ludemann in the pursuit of
a claim against the Bradford Clinic and asking for the name of its
professional liability insurance carrier. On 18 April 2005, Cheryl
Kayes (Ms. Kayes), a senior litigation specialist at MAG Mutual
Insurance Company (MAG), wrote Plaintiff's counsel, acknowledgingreceipt of his letter and informing him that MAG Mutual Insurance
Company provides professional liability coverage to 'The Bradford
Clinic' and its physicians for claims arising out of professional
services rendered. Between 18 April 2005 and 11 November 2005,
Plaintiff and Ms. Kayes communicated several more times by
telephone and written correspondence. Both parties referred to
either The Bradford Clinic or the Bradford Clinic in their
written communications. On 11 November 2005, Ms. Kayes notified
Plaintiff's counsel that MAG had denied his client's claims against
The Bradford Clinic. Approximately seven months later, Plaintiff
filed this action.
The standard of review of an order ruling on a motion to amend
pleadings is whether the trial court abused its discretion. Henry
v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984). It is an abuse of
discretion to deny leave to amend if the denial is not based on a
valid ground. Coffey v. Coffey, 94 N.C. App. 717, 722, 381 S.E.2d
467, 471 (1989), disc. review improvidently allowed, 326 N.C. 586,
391 S.E.2d 40 (1990). Valid grounds 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. Nationsbank of North Carolina, N.A. v. Baines,
116 N.C. App. 263, 268, 447 S.E.2d 812, 815 (1994) (citation
omitted). In the absence of any declared reason for the denial of
leave to amend, the appellate court may examine the apparent
reasons for the denial. United Leasing Corp. v. Miller, 60 N.C.App. 40, 298 S.E.2d 409 (1982), disc. review denied, 308 N.C. 194,
302 S.E.2d 248 (1983). In this case, the trial court did not
articulate its reasons for denying Plaintiff's motion to amend.
Accordingly, we examine the apparent reasons for the denial to
determine if they are valid.
A. Statute of Limitations
Plaintiff contends the Motion to Amend Complaint merely
corrects a misnomer of an original party, and thus relates back to
the date the original complaint was filed. We disagree.
Rule 15(c) of the North Carolina Rules of Civil Procedure
provides that a claim asserted in an amended pleading relates back
to the time of the original pleading. N.C. Gen. Stat. § 1A-1, Rule
15 (2005). However, this Rule applies only to the relation back of
claims against the original parties and is not authority for the
relation back of claims against a new party. Crossman v. Moore,
341 N.C. 185, 459 S.E.2d 715 (1995). Rule 15(c) may allow for the
relation back of an amendment to correct a misnomer if the intended
defendant was properly served and would not be prejudiced by the
amendment. Liss v. Seamark Foods, 147 N.C. App. 281, 555 S.E.2d
365 (2001). A misnomer is a [m]istake in name; giving incorrect
name to person in accusation, indictment, pleading, deed or other
instrument. Id. at 285, 555 S.E.2d at 368 (quoting Black's Law
Dictionary 1000 (6th ed. 1990)).
In Liss, the plaintiff's motion to amend his complaint after
the statute of limitations had expired was allowed to correct a
misnomer of the defendant. The plaintiff filed a lawsuit againstSeamark Foods after he became sick from oysters he had purchased
at the store. A Certificate of Assumed Name filed with the
Register of Deeds for Dare County provided that Seamark
Enterprises, Inc., a North Carolina corporation, operated under
the assumed name of Seamark Foods. After the expiration of the
statute of limitations, Seamark Enterprises, Inc. filed a motion
to dismiss the claims. In response, the plaintiff filed a motion
to amend the complaint to substitute Seamark Enterprises, Inc. as
the defendant, and argued that the amendment should relate back to
the filing of the original complaint. This Court held the
plaintiff was not attempting to add an entirely new party, but was
only correcting the name of the defendant. Because Seamark
Enterprises, Inc. engaged in business under the trade name of
Seamark Foods, they were not two separate and distinct entities
but rather one legal entity which uses two names. Id. at 286,
555 S.E.2d at 369. Therefore, the plaintiff's motion to amend his
complaint after the statute of limitations had expired was allowed.
Conversely, in Franklin v. Winn Dixie Raleigh, Inc., 117 N.C.
App. 28, 450 S.E.2d 24 (1994), aff'd per curiam, 342 N.C. 404, 464
S.E.2d 46 (1995), the plaintiff's attempt to amend his complaint
after the statute of limitations had run was held to be an attempt
to add a new party and not just to correct a misnomer. In the
original complaint, the plaintiff named Winn Dixie Stores, Inc.
as the defendant. The plaintiff subsequently sought to amend his
complaint to name the proper defendant, Winn Dixie Raleigh, Inc.
This Court concluded that the plaintiff was adding a new partybecause [t]he named defendant in the original summons and
complaint, 'Winn Dixie Stores, Inc.', (sic) was the correct name of
the wrong corporate party defendant, a substantive mistake which is
fatal to this action. Id. at 40, 450 S.E.2d at 32. Quite
simply, plaintiffs sued the wrong corporation. Id. at 35, 450
S.E.2d at 28. Therefore, the plaintiff's motion to amend his
complaint after the statute of limitations had expired was denied.
Unlike the plaintiff in Liss, Plaintiff in this case did not
sue WRHC under its trade name Bradford Clinic but instead sued
Bradford Clinic, Inc. As in Franklin, it is undisputed that
Bradford Clinic, Inc. was a separate and distinct legal entity from
WRHC. Bradford Clinic, Inc. was a corporation that was registered
with the North Carolina Secretary of State until it merged out of
existence on 18 May 1994. WRHC was a separate corporate entity
registered with the North Carolina Secretary of State. Thus, like
the plaintiff in Franklin, Plaintiff here sued the wrong entity.
Accordingly, Plaintiff's Motion to Amend Complaint was an attempt
to add a new defendant to the action after the statute of
limitations had expired. Therefore, if the court were to have
granted Plaintiff's motion to add WRHC as a party, the action would
have had to have been dismissed. See Estate of Fennell v.
Stephenson, 354 N.C. 327, 554 S.E.2d 629 (2001) (stating that a
plaintiff must name the party responsible for his alleged injury
before the statute of limitations runs or the claim will be
dismissed). As a result, Plaintiff's motion to amend was futile,and the trial court properly exercised its discretion in denying
B. Equitable Estoppel
Plaintiff further argues, however, that Bradford Clinic, Inc.
should be equitably estopped from asserting the statute of
limitations as a defense in this action. We disagree.
A defendant may rely on a statute of limitations as a defense
against stale claims, but may be equitably estopped from using a
statute of limitations as a sword, so as to unjustly benefit from
his own conduct which induced a plaintiff to delay filing suit.
Friedland v. Gales
, 131 N.C. App. 802, 806, 509 S.E.2d 793, 796
(1998). The essential elements of equitable estoppel are:
(1) conduct on the part of the party sought to
be estopped which amounts to a false
representation or concealment of material
facts; (2) the intention that such conduct
will be acted on by the other party; and (3)
knowledge, actual or constructive, of the real
Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 370, 396
S.E.2d 626, 628 (1990). The party asserting the defense must have:
(1) a lack of knowledge and the means of
knowledge as to the real facts in question;
and (2) relied upon the conduct of the party
sought to be estopped to his prejudice.
Id. at 370, 396 S.E.2d at 628-29.
The defendant 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), was equitably estopped from invoking the
statute of limitations as a defense where its identity was
concealed from the plaintiff by the defendant's insurer. Theplaintiff sustained injuries from a slip and fall at a Piggly
Wiggly store. The plaintiff's attorney forwarded correspondence to
Piggly Wiggly, Inc.'s corporate office to inform it that he was
representing the plaintiff in a negligence claim against the store.
The store was owned by Wallace Farm Mart, Inc. (Wallace), but was
leased by Flockhart Foods, Inc. (Flockhart). Piggly Wiggly,
Inc.'s insurer, which insured both Wallace and Flockhart, received
notice of the plaintiff's claim and responded on behalf of Piggly
Wiggly, Inc. During sixteen months of settlement negotiations, the
insurer never indicated to the plaintiff that it represented any
party other than Piggly Wiggly, Inc. or that Piggly Wiggly, Inc.
was not the responsible party. The plaintiff filed a complaint
naming Wallace Farm Mart, Inc. formerly Piggly Wiggly of Wallace
Inc. as the defendant. Id. at 707, 589 S.E.2d at 141. A courtesy
copy of the complaint was also forwarded to the insurer on that
same day. In correspondence the insurer sent the plaintiff two
weeks after the complaint was filed, the insurer still referred to
its insured as Piggly Wiggly, Inc. Id. at 710, 589 S.E.2d at
After the statute of limitations expired, Wallace filed a
motion to dismiss the plaintiff's action, alleging it was not the
proper defendant. The plaintiff filed a motion to amend its
complaint to name Flockhart as the proper defendant. An order
entered at a later term granted Flockhart summary judgment based
upon the statute of limitations. On appeal, this Court concluded
that generally insurers do not act as agents for the insured whensettling claims [but] . . . the rule was never intended to allow
the insurer or the insured to circumvent liability in the manner
presented by the facts in the instant case. Id. at 709-10, 589
S.E.2d at 142 (citation omitted). The Court imputed the insurance
agent's misconduct to Flockhart and held Flockhart was equitably
estopped from using the statute of limitations as a defense to
The facts in the present case do not justify a similar
outcome. When Plaintiff sent her initial correspondence to
Bradford Clinic, P.A., Ms. Kayes corrected Plaintiff's mistake by
responding on behalf of the Bradford Clinic, the assumed name of
WRHC registered with the Mecklenburg County Register of Deeds
Office and appearing on the face of the insurance policy.
Furthermore, Ms. Kayes fully acknowledged that MAG also insured the
physicians of the Bradford Clinic who were alleged to have provided
prenatal care to Plaintiff. During the ensuing months of
communication between Plaintiff and Ms. Kayes, both parties
continued to refer to the Bradford Clinic by its assumed name.
Thus, unlike the insurance agent in Hatcher, Ms. Kayes never
misrepresented or concealed who MAG insured. Furthermore,
Plaintiff did not rely upon Ms. Kayes's conduct to Plaintiff's
detriment; in fact, Plaintiff did not rely on Ms. Kayes's conduct
at all. Had Plaintiff done so, she would have filed suit against
the Bradford Clinic, which would have effectively named WRHC as
a defendant, as well as the doctors as individuals. Additionally, Ms. Kayes's conduct did not induce Plaintiff to
delay filing suit. The last communication between Ms. Kayes and
Plaintiff occurred seven months before Plaintiff filed her
complaint on the day before the statute of limitations expired.
This delay in filing cannot be attributed to Ms. Kayes's conduct in
any way. Accordingly, there is no evidence of misconduct on the
part of MAG or Ms. Kayes to impute to Defendant to equitably estop
Defendant from asserting the statute of limitations as a defense to
Plaintiff also argues that the doctrine of estoppel should
apply because a thorough inspection of the public records would not
have shown that the Bradford Clinic had been transferred to WRHC.
In Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 620 S.E.2d 312
(2005), the plaintiff was injured when he fell at a convenience
store known as Handee Hugo's. The plaintiff received letters from
the insurer about the fall, indicating that its insured was
Sampson-Bladen Oil, Co., Inc. The plaintiff incorrectly filed suit
against Handee Hugo's, Inc. and Sampson-Bladen Oil, Co., Inc.,
neither of which owned, leased, or operated the premises.
Discovery revealed that the premises was actually leased and
operated by United Energy. Subsequent to this discovery, and after
the expiration of the statute of limitations, the plaintiff filed
a motion to amend in order to name United Energy, Inc. as a
defendant to the lawsuit. The trial court denied the plaintiff's
motion to amend because the amendment would have been futile due tothe expiration of the statute of limitations. Summary judgment was
also granted in favor of the defendants.
On appeal, this Court affirmed the trial court's decision and
found the doctrine of estoppel did not apply because [w]here 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. Id. at 727, 620 S.E.2d at 315.
However, unlike Bailey, where the proper defendant was the
owner of the premises, here, the proper defendant was the employer
of the alleged negligent physicians. Thus, unlike Bailey, where
the ownership of the land on which the accident occurred, as well
as the lease extended to the operator of the store, should have
been a matter of public record, here, the name of the entity
employing the alleged physicians need not be. Consequently, unlike
Bailey, Plaintiff was not entitled to rely on the public records to
determine the responsible party in this case.
Furthermore, Plaintiff filed suit against Bradford Clinic,
Inc. . . . d/b/a, Bradford Clinic[.] Thus, Plaintiff was aware of
the fact that Bradford Clinic was an assumed name. While
Plaintiff was not entitled to rely on the public records, a search
of the Mecklenburg County Register of Deeds Office would have
revealed WRHC's Certificate of Assumed Name, putting Plaintiff on
notice that WRHC was operating under the assumed name of the
Bradford Clinic. Additionally, it was minimally burdensome for
Plaintiff to ask MAG who its named insured was or to call the
office where Plaintiff received medical care to ask who employedthe doctors. Hence, since there was no active misrepresentation by
MAG or Ms. Kayes; since WRHC's employment of the doctors was not
required to be a matter of public record; and since due diligence
would have revealed that Plaintiff needed to investigate WRHC as an
employer of the doctors and staff of the Bradford Clinic, Defendant
should not be estopped from asserting the statute of limitations as
a defense in this action.
C. Service of Process
Finally, Plaintiff contends that Bradford Clinic, Inc. was
WRHC's agent for the purpose of accepting service of process.
the alternative, Plaintiff contends WRHC made a general appearance
in this matter rendering service of summons unnecessary. However,
since no action was ever commenced against WRHC, whether WRHC
received service of process or made a general appearance in the
matter is irrelevant.
Under the North Carolina Rules of Civil procedure, [a] civil
action is commenced by filing a complaint with the court. N.C.
Gen. Stat. § 1A-1, Rule 3 (2005). Upon the filing of the
complaint, summons shall be issued forthwith, and in any event
within five days. N.C. Gen. Stat. § 1A-1, Rule 4 (2005). The
summons and complaint shall be served in accordance with the
statute of limitations. Osborne v. Walton
, 110 N.C. App. 850, 431
S.E.2d 496 (1993). However, upon the filing of the complaint, [a]
court . . . may, without serving a summons upon him, exercise
jurisdiction in an action over a person . . . [w]ho makes a general
appearance in an action[.] N.C. Gen. Stat. § 1-75.7 (2005). Additionally, a civil action may also be commenced by the
issuance of a summons when (1) [a] person makes application to the
court . . . requesting permission to file his complaint within 20
days and (2) [t]he court . . . [grants] the requested permission.
N.C. Gen. Stat. § 1A-1, Rule 3. The summons must be served along
with the court's order in accordance with the prescribed statute of
limitations. Estrada v. Burnham
, 316 N.C. 318, 341 S.E.2d 538
Here, although Plaintiff commenced an action by filing her
original complaint prior to the expiration of the statute of
limitations, the complaint did not name WRHC as a defendant. Since
Plaintiff's motion to amend the complaint after the expiration of
the statute of limitations was properly denied, WRHC was never made
a party to that action. Additionally, Plaintiff did not commence
an action against WRHC by making an application to the court
requesting permission to file her complaint within 20 days and
subsequently serving summons with the court's order upon WRHC.
Therefore, since Plaintiff never actually commenced an action
against WRHC, an analysis of whether WRHC is deemed to have
accepted service of summons via Bradford Clinic, Inc. or whether
WRHC waived service of summons by making a general appearance is
This case involves the tragic death of a four-day-old infant,
and this Court's sympathies for the child and her mother are
evoked. Unfortunately, our compassion cannot correct the
substantive mistake that the wrong party was sued. Accordingly,for the foregoing reasons, the trial court's denial of Plaintiff's
motion to amend is
Judges McGEE and SMITH concur.
Report per Rule 30(e).
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