Opinion
No. COA11–883.
2012-05-1
Paul KEARNEY, Plaintiff–Appellee, v. Phillip Renard BARKER, d/b/a Barker Dairy, and Phillip Junior Barker, Defendants–Appellants.
Willie S. Darby, for Plaintiff–Appellee. Legal Aid of North Carolina, Inc., by Gina L. Reyman and Madlyn C. Morreale, for Defendant–Appellant Phillip Renard Barker, d/b/a/ Barker Dairy.
Appeal by Defendants from judgment entered 30 March 2011 by Judge Robert H. Hobgood in Superior Court, Granville County. Heard in the Court of Appeals 29 November 2011. Willie S. Darby, for Plaintiff–Appellee. Legal Aid of North Carolina, Inc., by Gina L. Reyman and Madlyn C. Morreale, for Defendant–Appellant Phillip Renard Barker, d/b/a/ Barker Dairy.
No brief for Defendant–Appellant Phillip Junior Barker.
McGEE, Judge.
Paul Kearney (Plaintiff) is the owner and operator of a grading and excavation business. Phillip Renard Barker operates Barker Dairy (the farm) in Granville County on land owned by Phillip Junior Barker. Phillip Renard Barker is the son of Phillip Junior Barker. Hereinafter, Phillip Renard Barker will be referred to as “the son,” Phillip Junior Barker will be referred to as “the father,” and together, they will be referred to as Defendants.
Plaintiff was contacted by the father to perform excavation work on the farm in late 2004. Plaintiff delivered an invoice in the amount of $44,582.64 to Defendants on 24 August 2005. Defendants paid Plaintiff $2,000.00 on 4 November 2005 and an additional $16,000.00 on 11 November 2005. Plaintiff filed a pro se complaint on 23 June 2008 (Plaintiff's 2008 complaint) to recover the unpaid balance remaining on Plaintiff's invoice.
In his 2008 complaint, Plaintiff listed “Phillip Barker, Sr., DBA Barker Dairy” as Defendant. A summons and Plaintiff's 2008 complaint were served on the father at the father's residence. At the time of service, the son did not reside with his father and was not served with a copy of Plaintiff's 2008 complaint. The father did not file an answer to Plaintiff's 2008 complaint, and the Granville County Clerk of Superior Court filed an entry of default on 8 August 2008. Plaintiff filed an “affidavit in support of judgment by default” on that same date. The trial court heard Plaintiff's motion for default judgment on 5 September 2008, and entered a default judgment against “Phillip Barker, Sr.” on 7 May 2009.
The son filed a motion for a new trial on 18 May 2009, signing his name as “Phillip R. Barker, Sr.” In support of his motion for a new trial, the son also filed an affidavit. In his affidavit, the son stated the following: he was present in court during the default judgment hearing against his father; he addressed the trial court and stated that he believed it was he, and not his father, against whom the action should have been filed. In his affidavit, the son further stated that Plaintiff said: “I don't have any problem with this young man, this is against his father.” The son also stated in his affidavit that, on the day of the hearing, he “was not allowed to act as a party.”
In an order entered 15 March 2010, the trial court granted the son's motion for a new trial. In that order, the trial court found and concluded that “Phillip Renard Barker [the son] was not properly served[.]” The trial court also found and concluded that “Phillip Renard Barker [was] the son of Phillip Junior Barker but that neither of these men [were] commonly known as Phillip Barker, Sr.”
Plaintiff filed an amended complaint on 7 April 2010 (Plaintiff's amended complaint). In Plaintiff's amended complaint, Plaintiff named the following defendants: “Phillip Renard Barker, D/B/A Barker Dairy and Phillip Junior Barker.” Plaintiff's amended complaint was served on both the son and the father. The son filed an answer to Plaintiff's amended complaint on 7 June 2010, asserting the affirmative defense that the statute of limitations had expired prior to the filing of Plaintiff's amended complaint.
After a bench trial, the trial court entered judgment on 30 March 2011, finding Defendants liable to Plaintiff in the amount of $17,211.77 for breach of contract. In its judgment, the trial court concluded that: “This action was commenced within the applicable statute of limitations as it relates to both Defendants.” Defendants appeal.
I. Appeal of the father, Phillip Junior Barker
Although the father filed notice of appeal, he has not filed a brief with this Court. “The failure to file a brief with this Court is a violation of the Rules of Appellate Procedure, seeN.C.R.App. P. 13 (brief must be filed within 30 days of mailing record on appeal); N.C.R.App. P. 28(b) (setting out required contents of brief), and subjects [an] appeal to dismissal.” Thompson v. First Citizens Bank & Tr. Co., 151 N.C.App. 704, 706, 567 S.E.2d 184, 187 (2002). We therefore dismiss Phillip Junior Barker's (the father's) appeal.
II. Appeal of the son, Phillip Renard Barker
The son raises two issues on appeal: (1) whether the trial court erred in its conclusion that the underlying action was commenced within the statute of limitations with respect to the son; and (2) whether the trial court erred by failing to make findings of fact sufficient to support its conclusion of law.
III. Analysis
This case involves the trial court's determination that: “This action was commenced within the applicable statute of limitations as it relates to both Defendants.” A trial court's application of the relevant statute of limitations is a question of law which this Court will review de novo. Reece v. Smith, 188 N.C.App. 605, 607, 655 S.E.2d 911, 913 (2008). The following is undisputed: (1) because this case arises from an alleged breach of contract, the applicable statute of limitations period is three years from the events giving rise to the cause of action. SeeN.C. Gen.Stat. § 1–52(1) (2011); (2) Defendants made their last payment to Plaintiff on 11 November 2005; and (3) under the facts of this case, the statute of limitations began to run, at the latest, on 11 November 2005, when Defendants were alleged to have made their last payment. Thus, in order to be timely, Plaintiff's amended complaint must have been filed by 11 November 2008.
In the present case, Plaintiff's 2008 complaint was filed on 23 June 2008. However, Plaintiff's amended complaint, which was the complaint that was actually served on both the son and the father, was not filed until 7 April 2010, well outside the three-year statute of limitations. The son argues that, because Plaintiff's amended complaint naming him as a defendant was not filed until after the statute of limitations had elapsed, the trial court should have dismissed Plaintiff's amended complaint. Plaintiff counters that the son waived the statute of limitations defense by failing to raise it in his first responsive pleading, or in the alternative, by making a voluntary general appearance in the matter.
“[I]t is well-established law that if a plaintiff does not name the party responsible for his alleged injury before the statute of limitations runs, his claim will be dismissed.” Estate of Fennell v. Stephenson, 354 N.C. 327, 332, 554 S.E.2d 629, 632 (2001). However, a complaint may “relate back” with respect to a new defendant named after the expiration of the limitations period if “that new defendant had notice of the claim so as not to be prejudiced by the untimely amendment.” Franklin v. Winn Dixie Raleigh, Inc., 117 N.C.App. 28, 39, 450 S.E.2d 24, 31 (1994) (citation omitted). Thus, in order to determine if Plaintiff's amended complaint was timely filed, we must determine whether the “relate back” doctrine applies.
“ ‘If the effect of the proposed amendment is merely to correct the name of a party already in court, clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint.... On the other hand, 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 clause [sic] of action and cannot be permitted when the statute of limitations has run.’ “
Callicutt v. American Honda Motor Co., 37 N.C.App. 210, 212, 245 S.E.2d 558, 560 (1978) (citations omitted).
When [an] amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur. As a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed. We hold that this rule does not apply to the naming of a new party-defendant to the action. It is not authority for the relation back of a claim against a new party.
Crossman v. Moore, 341 N.C. 185, 187, 459 S.E.2d 715, 717 (1995).
In the present case, we note that Defendants' names are confusing. However, reviewing the son's affidavit, along with Plaintiff's brief, we conclude that Plaintiff was not confused about the name of the party he intended to sue. Plaintiff states in his brief that, at the hearing on default judgment, he stated to the trial court that “it was his intent to sue the father, who he understood was Phillip Barker, Sr. since he had a son name[d] Phillip Barker as well.” The son was also present at that hearing, and specifically addressed the trial court in an attempt to clear up the confusion, stating that he thought the action “should have been done in [his] name[,]” and not against his father. The trial court did not allow the son to participate further in that hearing. We also note that the record does not indicate that Plaintiff sought to amend his complaint to name the son as a defendant until after a new trial was granted. It is clear Plaintiff intended to file his complaint against the father and only later, after a new trial had been granted, did Plaintiff amend his complaint to include the son.
Because Plaintiff's amended complaint had the effect of naming a new defendant to the action, and was not filed in order “merely to correct the name of a party already in court,” Callicutt, 37 N.C.App. at 212, 245 S.E.2d at 560, we conclude the naming of the son in Plaintiff's amended complaint does not “relate back” to Plaintiff's 2008 complaint. Thus, the statute of limitations had expired and Plaintiff's amended complaint was not timely filed. The trial court's judgment concluding otherwise must be reversed.
Plaintiff argues that the son “made a voluntary general appearance in this action[;] therefore any argument that service of process was defective and/or the action was barred by the applicable statute of limitations as it related to him is without merit.” We disagree.
Plaintiff appears to misconstrue the son's argument. The son contends that he was not a party to the action until he was named in Plaintiff's amended complaint, which was not served upon him until after the statute of limitations had expired. Thus, the son's argument is not one involving personal jurisdiction or service of process. While a party may waive the defense of the statute of limitations, the son did not do so in the present case. See Musarra v. Bock, 200 N.C.App. 780, 784, 684 S.E.2d 741, 744 (2009) (“An explicit waiver of the statute of limitations is effective under the laws of ... North Carolina[.]”). In fact, the son raised the issue of the statute of limitations in his answer to Plaintiff's amended complaint.
Plaintiff appears to contend that the son's arguments are questions of personal jurisdiction and service of process simply because the son's argument regarding the statute of limitations involves an analysis of which person was served with Plaintiff's 2008 complaint. We disagree with this characterization. Rather, as we concluded above, after reviewing the record in this case, it is apparent that the son was not served in this action until nearly one and a half years after the statute of limitations expired. Because the naming of the son as a defendant in Plaintiff's amended complaint does not relate back to Plaintiff's 2008 complaint, the action brought against the son was untimely. The son raised the statute of limitations in his answer to Plaintiff's amended complaint. Thus, Plaintiff's argument concerning waiver of the statute of limitations is misplaced.
Because the trial court erred by determining that the statute of limitations did not bar Plaintiff's action, we reverse the judgment of the trial court as to the son, Philip Renard Barker. We dismiss the appeal of the father, Phillip Junior Barker, for his failure to file a brief with this Court.
Reversed in part; dismissed in part. Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).