Opinion
No. COA15-726
08-02-2016
VIOLET BROWN, as Personal Representative of the Estate of Ronald Brown, Plaintiff, v. CHERYL ANN BROWN and BRANCH BANKING & TRUST COMPANY, Defendants.
The McCraw Law Firm, PLLC, by Jeffrey M. McCraw, for Plaintiff-appellant. Bell, Davis & Pitt, P.A., by Kevin G. Williams and Andrew A. Freeman, for Defendant-appellees.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Mecklenburg County, No. 14 CVS 2461 Appeal by Plaintiff from order entered 31 December 2014 by Judge John Bowers in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 December 2015. The McCraw Law Firm, PLLC, by Jeffrey M. McCraw, for Plaintiff-appellant. Bell, Davis & Pitt, P.A., by Kevin G. Williams and Andrew A. Freeman, for Defendant-appellees. INMAN, Judge.
A widow who filed a lawsuit on behalf of her late husband within months of his death, but who did not qualify to bring suit until more than two years later—despite notice that she lacked the capacity to bring claims—is not entitled to reversal of the trial court's order denying her motion to amend her summons and complaint and allowing the defendants' motion to dismiss her action.
Violet Brown ("Plaintiff") appeals the trial court's dismissal of her claims against Cheryl Ann Brown ("Defendant Brown") for conversion, breach of fiduciary duty, constructive fraud, breach of contract, fraud by misrepresentation, unfair and deceptive trade practices, unjust enrichment, and fraudulent inducement. The trial court denied Plaintiff's motion to amend the complaint and summons and granted Defendant Brown's motion to dismiss all claims on the basis that they were barred by applicable statutes of limitations. After careful review, we affirm.
I. Background
Plaintiff, as personal representative of the Estate of Ronald Brown, commenced this action by filing a verified complaint on 14 February 2014. Plaintiff is a resident of Clayton County, Georgia. Defendant Brown is a resident of Mecklenburg County, North Carolina. Defendant Brown was employed by Branch Banking and Trust Company ("Defendant BB&T") or Defendant BB&T's predecessor in interest during the time period relevant to this case. Defendant Brown was the stepdaughter of Ronald Brown ("Decedent"). Decedent had been married to Defendant Brown's mother from the 1960s until the couple divorced in 1972. The couple had two additional children during their marriage.
Plaintiff's complaint alleges the following:
On or about 15 August 1996, Defendant Brown telephoned Decedent to discuss his investments and convinced him to transfer his investments to Defendant BB&T, to earn more interest and help improve her job status. Decedent agreed to transfer his funds to Defendant BB&T. Decedent instructed Plaintiff to redeem his Fayette Bank certificate of deposit of $25,000.00 and mail the funds via cashier's check payable to Defendant Brown. Decedent allegedly believed that the account would be in his name alone but that he needed to make his check payable to Defendant Brown for her to receive credit for opening the account.
A week after receiving the cashier's check, Defendant Brown informed Decedent that she had used the proceeds to purchase an investment for Decedent. In reality, however, Defendant Brown deposited the funds into an individual account in her name only.
Four years later, in 2000, Defendant Brown allegedly forged Decedent's signature on forms to change the individual account to a joint account with Decedent with rights of survivorship. After the joint account was created, Decedent allegedly asked why Defendant Brown's name was associated with the account; Defendant Brown replied that her name was listed because she was managing the funds. Over the years following his transfer of funds to Defendant Brown for her to invest on his behalf, Decedent received dividend and interest payments via checks endorsed by Defendant Brown. From 1996 until Decedent's death, all earnings from the account were reported on Decedent's tax returns as an individual investment.
When Decedent noticed that the investment was losing money, he contacted Defendant BB&T to close the account; he was then informed that Defendant Brown, as joint tenant, had to give her authorization for the account to be closed. Defendant Brown refused to authorize closing the account and ignored Decedent's requests to remove her name from the account. Defendant Brown did not return the funds to Decedent and allegedly told Plaintiff that Decedent could not withdraw any funds because of his Alzheimer's condition.
Decedent died in April 2012. Plaintiff had not returned any funds to Decedent before his death and did not return any of the funds to his estate.
On 13 August 2012, Plaintiff filed a complaint against Defendant in Mecklenburg County Superior Court. Plaintiff also asserted claims against Defendant BB&T. Defendants moved to dismiss the complaint on various grounds, including that Plaintiff's action was barred by the applicable statutes of limitations and failed to state a claim for which relief could be granted. Plaintiff voluntarily dismissed the action without prejudice on 15 February 2013.
On 14 February 2014, Plaintiff filed the present action in Mecklenburg County Superior Court. The 2014 verified complaint added a claim for fraudulent inducement against Defendant Brown. On 19 May 2014, Defendants filed a motion to dismiss pursuant to Rules 9(a), (b) and 12(b)(1), (2), (4), (5) and (6) of the North Carolina Rules of Civil Procedure. Defendants specifically alleged in the motion that "Plaintiff does not have capacity to bring the purported claims, and the Court lacks subject matter jurisdiction." Defendants served Plaintiff with notice that the motion to dismiss was scheduled for hearing in July 2014. Two days before the scheduled hearing on Defendants' motion, Plaintiff filed a motion for leave to amend the complaint and summons to identify herself as "Violet Brown, individually and as Executrix and Personal Representative of the Estate of Ronald Brown, plaintiff." At the hearing, Plaintiff asked the trial court to continue the hearing. The hearing was postponed until 27 October 2014.
Plaintiff was appointed ancillary administrator of Decedent's estate on 14 August 2014, two months after the initial hearing date. More than two months after her appointment and one week before the continued hearing, Plaintiff filed a second motion for leave to amend the complaint and summons. The second motion for leave to amend sought, inter alia, to identify Plaintiff in the summons and complaint as "Violet Brown, individually, and as Ancillary Executrix and Personal Representative of the Estate of Ronald Brown, Plaintiff." The proposed amendment would allow Plaintiff to assert claims in her individual capacity and to assert claims on behalf of Decedent's estate as ancillary representative, a capacity required to state a claim on behalf of the estate.
Defendants opposed Plaintiff's motion to amend the complaint and summons, arguing that the proposed amendments would be futile and that Plaintiff had unduly delayed in gaining the capacity to sue.
The trial court heard the parties' respective motions at the hearing and, at the conclusion of counsel's arguments, took the matter under advisement. On 31 December 2014 the trial court entered an order denying Plaintiff's motion to amend and granting Defendants' motion to dismiss. The order did not explain why the trial court denied Plaintiff's motion to amend, but it specified that the motion to dismiss Plaintiff's claims against Defendant Brown was granted on the basis of the statute of limitations. Plaintiff appeals the denial of her motion to amend and the dismissal of her claims against Defendant Brown; she does not appeal the dismissal of her claims against Defendant BB&T.
II. Analysis
A. Motion to Amend
Plaintiff argues that the trial court abused its discretion in denying her motion for leave to amend the complaint and summons. We disagree and affirm the order of the trial court.
"A motion to amend is addressed to the discretion of the court, and its decision thereon is not subject to review except in case of manifest abuse." Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). "It is Plaintiff's burden to prove the trial court abused its discretion in denying her motion to amend." Williams v. Craft Dev., LLC, 199 N.C. App. 500, 510, 682 S.E.2d 719, 726 (2009).
"A party may amend h[er] 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 . . . ." N.C. R. Civ. P. 15(a) (2015). Rule 15(a) does not, however, allow Plaintiff to amend the summons as a matter of course. See N.C. R. Civ. P. 4(i) (2015) (A trial court may, "in its discretion and upon such terms as it deems just, . . . allow any process or proof of service thereof to be amended[.]"). Without a valid summons, a trial court does not obtain personal jurisdiction over a defendant. Glover v. Farmer, 127 N.C. App. 488, 490, 490 S.E.2d 576, 577 (1997) ("Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed.").
Plaintiff contends that the trial court abused its discretion because she did not need leave of court to amend her complaint. Here, however, Plaintiff filed two motions to amend her complaint. Plaintiff did not have a right as a matter of course to file the second proposed amended complaint, which Plaintiff's counsel argued before the trial court.
The trial court did not specify in its order why it denied Plaintiff's motion to amend the complaint and summons. "In the absence of any declared reason for the denial of leave to amend, this Court may examine any apparent reasons for such denial." Williams, 199 N.C. App. at 510, 682 S.E.2d at 725. If the appellate court can identify one or more sound reasons for the trial court to have made its ruling on a motion to amend, the trial court's ruling should be affirmed. See id.
Plaintiff sought to amend her complaint to cure a fatal defect. Rule 9(a) of the North Carolina Rules of Civil Procedure provides that "[a]ny party suing in any representative capacity shall make an affirmative averment showing his capacity and authority to sue." N.C. R. Civ. P. 9(a) (2015). N.C. Gen. Stat. § 28A-26-6(a) provides that "[a] domiciliary personal representative of a nonresident decedent may invoke the jurisdiction of the courts of this State after qualifying as ancillary personal representative in this State . . . ." Plaintiff had not qualified to become an ancillary representative of Decedent's estate when she commenced the 2012 action. Nor did Plaintiff gain the capacity to sue on behalf of Defendant's estate prior to her voluntary dismissal of the 2012 action. Plaintiff still had not gained the capacity to sue on behalf of Decedent's estate when she filed the 14 February 2014 complaint.
Undue delay by the plaintiff is a well-established basis for denial of a motion to amend. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 467, 602 S.E.2d 721, 724 (2004). "In deciding if there was undue delay, the trial court may consider the relative timing of the proposed amendment in relation to the progress of the lawsuit." Id. Here, although Plaintiff filed her initial complaint within four months of Decedent's passing, she delayed for more than two years before obtaining the capacity to sue. Even after Defendants moved to dismiss this action for reasons including Plaintiff's lack of capacity to sue, Plaintiff delayed another three months before obtaining the capacity to sue, and she waited another two months before filing the second motion to amend at issue in this appeal. On these facts, we cannot conclude that it was manifest abuse for the trial court to deny Plaintiff's motion to amend the summons and complaint.
Furthermore, the pleadings and evidence before the trial court—which the trial court could consider in deciding the motion to amend—demonstrate that the majority of Plaintiff's claims were time barred and could not be restored. A claim that is barred by the statute of limitations is futile. Futility is a well-established basis to deny a motion to amend. See N.C. Council of Churches v. State, 120 N.C. App. 84, 93, 461 S.E.2d 354, 360 (1995) ("When an amendment would be futile in light of the propriety of summary judgment on a plaintiff's claim, it is not an abuse of discretion for the trial court to deny the amendment.").
Based on her delay in obtaining the capacity to sue for claims that had not only accrued, but had been identified in Plaintiff's initial lawsuit, as well as the futility of amendment because of applicable statutes of limitations, Plaintiff has not demonstrated that the trial court abused its discretion in denying her motion to amend.
Because we affirm the trial court's denial of Plaintiff's motion to amend, we consider whether Plaintiff's 14 February 2014 complaint states claims for which relief can be granted. Because that complaint does not allege, as required by Rule 9(a) of the Rules of Civil Procedure, that Plaintiff has the capacity to sue as required by N.C. Gen. Stat. § 28A-26-6(a), all of Plaintiff's claims were subject to dismissal, and on that basis we affirm the trial court's order granting Defendant Brown's motion to dismiss. Although the trial court's order states that it granted the motion to dismiss on statutes of limitations grounds, this Court's review is not limited to that analysis. "Where a trial court has reached the correct result, the judgment will not be disturbed on appeal even where a different reason is assigned to the decision." Eways v. Governor's Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990).
Notwithstanding the alternative basis for affirming the trial court's dismissal of Plaintiff's claims, we discuss below the statute of limitations issues which dominated the parties' arguments before the trial court and before this Court.
B. Statutes of Limitations
The trial court dismissed all of Plaintiff's claims against Defendant Brown as barred by the statute of limitations.
The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted.Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (internal citation omitted). "This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4.
1. Commencement of the Action
Plaintiff argues that the limitations periods governing her claims were tolled on 13 August 2012, the date she filed the original action. We disagree, because Plaintiff's 2012 complaint did not allege that Plaintiff had the capacity to sue Defendant Brown and, as revealed by the record, Plaintiff indeed did not obtain the capacity prior to dismissing the 2012 action. We hold that statutes of limitations applicable to Plaintiff's claims were not tolled until 14 February 2014, the date she filed the complaint, and that all claims that were time barred as of that date were properly dismissed by the trial court.
Rule 41 of the North Carolina Rules of Civil Procedure provides that "[i]f an action commenced within the time prescribed therefor . . . [is voluntarily dismissed by a plaintiff], a new action based on the same claim may be commenced within one year after such dismissal . . . ." N.C. R. Civ. P. 41(a)(1) (2015). Plaintiff filed her 2014 action one year to the day following her dismissal of the 2012 action. However, "in order for a timely filed complaint to toll the statute of limitations and provide the basis for a one-year extension by way of a Rule 41(a)(1) voluntary dismissal without prejudice, the complaint must conform in all respects to the rules of pleading." Murphy v. Hinton, ___ N.C. App. ___, ___, 773 S.E.2d 355, 358 (2015) (internal quotation marks omitted and emphasis removed). "[T]o benefit from the one-year filing extension provided in Rule 41(a), the initial complaint must conform in all respects to the rules of pleading contained in Rules 8, 9, 10, and 11 of the North Carolina Rules of Civil Procedure." Id. at ___, 773 S.E.2d at 359.
Plaintiff contends that by qualifying as ancillary representative in August 2014, prior to the trial court's hearing on Defendants' motion, she satisfied the pleading requirement of Rule 9(a), and that the amendment of the complaint and the summons relate back to the filing date of her initial complaint. Plaintiff relies on Burcl v. N. C. Baptist Hosp., Inc., 306 N.C. 214, 219, 293 S.E.2d 85, 88-89 (1982). In Burcl, the North Carolina Supreme Court held that, in a wrongful death action where an out-of-state personal representative qualified as an ancillary administrator in North Carolina only after filing the claim and after the statute of limitations had expired, the personal representative was permitted to amend her pleading to show her qualification as ancillary administrator "and have it relate back to the commencement of her action." Id. Burcl cited Graves v. Welborn, 260 N.C. 688, 692, 133 S.E.2d 761, 764 (1963) for " 'the universal rule that all previous acts of the personal representative prior to his appointment which were beneficial in nature to the estate and which would have been within the scope of his authority had he been duly qualified, are validated upon his appointment which relates back to the death of the intestate for this purpose.' " Burcl, 306 N.C. at 218-19, 293 S.E.2d at 88.
The procedural history of this case, however, differs substantially from that in Burcl, and the difference is dispositive. Unlike the plaintiff in Burcl, Plaintiff here is not seeking to have an amendment relate back to the filing date of the present action. She seeks to have the amendment relate back to the filing of her 2012 complaint, which she dismissed in 2013. She did not cure the fatal pleading deficiency in that complaint before dismissing her initial lawsuit. The 2012 complaint did not conform to the rules of pleading. It failed to satisfy N.C. R. Civ. P. 9(a) and could not toll applicable statutes of limitations. Therefore, we consider the viability of Plaintiff's claims for statute of limitations purposes as of 14 February 2014, the date Plaintiff filed the complaint in this action.
Furthermore, unlike the plaintiff in Burcl, who qualified as an ancillary administrator and gained the capacity to sue on behalf of her family member's estate within one week of the defendants' motion to dismiss the action, id. at 216, 293 S.E.2d at 87, Plaintiff delayed three months before obtaining the capacity to sue in this action, and delayed an additional two months before filing the motion to amend from which this appeal arose.
2. Application of Statutes of Limitation to Plaintiff's Claims
We agree, for the most part, with the trial court's ruling that the pleadings, when considered on their face and in a light most favorable to Plaintiff, reveal that Plaintiff's claims are barred by the statutes of limitations. In any statute of limitations analysis, we must consider not only the date of the commencement of the action, but also the date when each claim accrued and the respective limitations period applicable to each claim.
The parties dispute when several of Plaintiff's claims against Defendant Brown accrued. Defendants contend that all claims accrued, and all applicable limitations periods began, in 1996 when the Decedent transferred his funds to Defendant Brown. Plaintiff contends that several of the claims did not accrue until years later, when Decedent sought to remove Plaintiff's name from the joint bank account or when Defendant Brown refused to remit the funds to Decedent's estate. The parties also dispute which statutes of limitations apply to several of Plaintiff's claims.
a. Conversion, Breach of Contract, and Unjust Enrichment
"Under our General Statutes, the statute of limitations for bringing a cause of action for breach of contract, conversion, or unjust enrichment is three years." Housecalls Home Health Care, Inc. v. State, 200 N.C. App. 66, 70, 682 S.E.2d 741, 744 (2009); N.C. Gen. Stat. § 1-52(1), (4) (2015). "[A conversion] claim accrues, and the statute of limitations begins to run, when the unauthorized assumption and exercise of ownership occurs—not when the plaintiff discovers the conversion." Stratton v. Royal Bank of Can., 211 N.C. App. 78, 83, 712 S.E.2d 221, 227 (2011). Following the holding of Housecalls, we hold that Plaintiff's claims for breach of contract, conversion, and unjust enrichment accrued in 1996—when Decedent provided his funds to Defendant Brown—and were time barred when this action was commenced in 2014.
Plaintiff acknowledges that Defendant Brown initially converted Decedent's funds to her own use in 1996 but argues that the conversion was "at least partially, if not completely, rectified" when Defendant Brown placed the funds in a joint account because "[Decedent] would . . . not be completely deprived of his ownership rights with respect to those funds." Plaintiff argues that the conversion claim actually accrued in April 2012, "when the ability to access the funds was completely cut off." However, the allegation in Plaintiff's complaint that Decedent was unable to control the funds even after they were placed in a joint account belies this argument, and we reject it.
Plaintiff also argues that the claims for conversion, unjust enrichment, and breach of contract did not accrue until 2012 because the continuing wrong doctrine tolled the statute of limitations for so long as Defendant Brown continued to withhold return of Decedent's funds. Plaintiff did not present this argument to the trial court, so it is not properly before this Court. The North Carolina Supreme Court and this Court have long held that a party cannot swap horses to get a better mount on appeal. Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934); Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 727, 620 S.E.2d 312, 316 (2005); Horton v. New South Ins. Co., 122 N.C. App. 265, 270, 468 S.E.2d 856, 859 (1996); see also Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) ("This Court has long held that issues and theories of a case not raised below will not be considered on appeal[.]"), Am. Multimedia, Inc. v. Freedom Distrib., Inc., 95 N.C. App 750, 751-52, 384 S.E.2d 32, 33 (1989) (holding that the plaintiff's argument on appeal to apply a statute of limitations different than that argued before the trial court was not properly before the appellate court). Accordingly, we will not consider the continuing wrong theory in this case, and we hold that Plaintiff's claims for breach of contract, conversion, and unjust enrichment were each governed by a three-year statute of limitations that had expired prior to the commencement of this action in 2014.
b. Fraud and Breach of Fiduciary Duty
Plaintiff asserts that her claims for fraudulent inducement, fraud by misrepresentation, and breach of fiduciary duty are not barred by the statute of limitations because Decedent did not discover the fraud until he tried without success to withdraw his funds from the investment account. We disagree.
Claims for fraud and for breach of fiduciary duty are subject to a three-year limitations period. N.C. Gen. Stat. § 1-52(1), (9) (2015). With respect to a fraud claim, "[t]he cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud . . . ." N.C. Gen. Stat. § 1-52(9).
"Discovery" is defined as actual discovery or the time when the fraud should have been discovered in the exercise of due diligence. Whether a plaintiff has exercised due diligence is ordinarily an issue of fact for the jury absent
dispositive or conclusive evidence indicating neglect by the plaintiff as a matter of law. In other words, when there is a dispute as to a material fact regarding when the plaintiff should have discovered the fraud, summary judgment is inappropriate, and it is for the jury to decide if the plaintiff should have discovered the fraud. Failure to exercise due diligence may be determined as a matter of law, however, where it is clear that there was both capacity and opportunity to discover the mistake.Ward v. Fogel, ___ N.C. App. ___, ___, 768 S.E.2d 292, 299 (2014) (internal editing marks and citations omitted).
Plaintiff conceded before the trial court that Decedent discovered Defendant Brown was a joint owner of the bank account as early as "late 2010"—more than three years prior to the filing of Plaintiff's complaint. Furthermore, although Plaintiff's complaint takes care not to reference or attach bank documents other than one which she alleges bears Decedent's forged signature, Plaintiff alleges that after the account was created, Decedent asked Defendant Brown why her name was listed on the account and accepted her representation that her name was listed because she was managing the account. Decedent's knowledge that Defendant Brown's name was on the account was sufficient to put any reasonable person on notice that ownership and control of the funds had been compromised. Doe v. Roman Catholic Diocese, ___ N.C. App. ___, ___, 775 S.E.2d 918, 922 (2015) ("[U]nder North Carolina law, even when there is a special relationship between the plaintiff and the defendant, the duty of inquiry begins when an event occurs to excite the aggrieved party's suspicion or put her on such inquiry as should have led, in the exercise of due diligence, to a discovery of the fraud." (internal quotation marks omitted)).
During the hearing on Plaintiff's motion to amend and Defendant's motion to dismiss, the trial court received evidence including a letter written by Plaintiff to Defendant BB&T dated 22 November 2010 requesting that Defendant Brown be removed from the account. This letter was not properly before the trial court regarding the motion to dismiss pursuant to Rule 12(b)(6). However, it was properly before the trial court to consider with regard to Plaintiff's motion to amend and provides support for the trial court's denial of that motion. See Rabon v. Hopkins, 208 N.C. App. 351, 353-54, 703 S.E.2d 181, 184 (2010) (A trial court reviews the record in exercising its discretion in denying a motion to amend, and "[a] trial court abuses its discretion only where no reason for the ruling is apparent from the record.").
c. Constructive Fraud and Unfair and Deceptive Trade Practices
Plaintiff contends that her claims for constructive fraud and unfair and deceptive trade practices are not barred by the applicable statutes of limitations. We agree, but we must affirm the trial court because, as explained supra, Plaintiff did not have the capacity to state these claims at the time of her 2014 complaint.
Plaintiff argues for the first time on appeal that a ten-year statute of limitations applies to the claim for constructive fraud against Defendant Brown and that a four-year statute of limitations applies to the claim for unfair and deceptive trade practices. Plaintiff has identified the correct limitations periods for these claims. N.C. Gen. Stat. § 1-56 (2015) (constructive fraud); N.C. Gen. Stat. § 75-16.2 (2015) (unfair and deceptive trade practices). But because Plaintiff did not identify these limitations periods before the trial court, her arguments are not properly before this Court for review on appeal. Furthermore, these arguments are moot in light of the fatal defect in Plaintiff's complaint.
Although the trial court specifically found that the motion to dismiss "should be granted on the basis of the statute of limitations[,]" we affirm the trial court with regard to the constructive fraud and unfair and deceptive trade practices claims because Plaintiff did not have the requisite capacity of ancillary administrator in order to bring those claims. See Eways, 326 N.C. at 554, 391 S.E.2d at 183 (discussed supra).
Plaintiff has not conceded receiving notice of Defendant Brown's alleged fraud until 2010, possibly within four years of the commencement of this action in 2014. Considering only the allegations in the complaint in a light most favorable to Plaintiff, and resolving all possible inferences in favor of Plaintiff, we cannot conclude that her claims for constructive fraud and unfair and deceptive trade practices are time barred. But for Plaintiff's delay in obtaining the necessary capacity to bring claims on behalf of Decedent's estate, the statute of limitations defense with regard to these causes of action would be better suited to a motion for summary judgment, which would allow for discovery and the introduction of evidence. However, given the trial court's denial of Plaintiff's motion to amend, these claims, like all of Plaintiff's claims, are subject to dismissal because Plaintiff did not allege that she had the legal capacity to bring the claims on behalf of Decedent's estate.
III. Conclusion
We conclude that the trial court did not abuse its discretion in denying Plaintiff's motion to amend her complaint and did not err in granting Defendant Brown's motion to dismiss. The order of the trial court is
AFFIRMED.
Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).