221 N.C. App. 317
N.C. Ct. App.2012Background
- Plaintiffs purchased burial plots from York Memorial Park in 1993; two family plots were intended for nearby relatives of Verna Hardin.
- Verna Hardin died on 15 August 2004; Plaintiffs (her children and the Estate) sought to bury her remains.
- York informed Plaintiffs that both family plots had been resold to third parties; one plot used for over ten years.
- Plaintiffs filed suit for breach of contract on 9 November 2006; dismissed with prejudice on 9 July 2010 after amendments.
- Plaintiffs appealed, arguing that amendments should have been allowed as a matter of right before responsive pleadings; issues included jurisdiction, contract claims, and tort theories.
- The court ultimately affirmed in part and reversed in part, addressing multiple contract, tort, and UDTP claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment of complaint as of right before responsive pleading | Plaintiffs were entitled to amend as a right under Rule 15(a) | Defendants contended typical pleading sequence limited amendments after 12(b) motions | Amendment permitted; Rule 12(b) motions did not terminate right to amend |
| Personal jurisdiction over SCI | SCI’s ownership of Alderwoods conferred jurisdiction under long-arm statute | Plaintiffs failed to allege statutory grounds or activities in NC; affidavits supported lack of jurisdiction | No statutory basis shown; jurisdiction not established |
| Breach of contract statute of limitations | Breach occurred in 2004 or ongoing; limitations should not bar third plot | Three-year period from 1993 resell; 2004 argument not supported by authority | First plot barred; however, complaint as to the third plot not time-barred; dismissal reversed for that plot |
| Third-party beneficiary and UDTP viability | Plaintiffs alleged direct beneficiary status for third plot and UDTP conduct | No valid UDTP aggravating circumstances; lack of direct beneficiary basis for UDTP | Third-plot beneficiary claim viable; UDTP claim properly dismissed for lack of aggravating circumstances |
| Negligence and related claims (NIED, res ipsa, fraud pleading) | Defs owed duty; foreseeability alleged; tort theories arise from contract | No independent tort duties pleaded; claims barred by contract and statute; pleading defects | Negligence claims barred by lack of independent duty and limitations; NIED and related claims not proven; fraud pleading properly dismissed |
Key Cases Cited
- Golds v. Central Express, Inc., 142 N.C. App. 664 (2001) (two-part test for personal jurisdiction; burden on plaintiff to show basis)
- Burgin v. Owen, 181 N.C. App. 511, 640 S.E.2d 427 (2007) (de novo review of 12(b)(6) dismissals; proper standard of review)
- Davis v. Messer, 119 N.C. App. 44, 457 S.E.2d 902 (1995) (negligence elements requirement)
- Olympic Prods. Co. v. Roof Sys., Inc., 88 N.C. App. 315, 363 S.E.2d 367 (1998) (duty arising from contractual relationship; negligent performance may give rise to tort)
- Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981) (fraud pleading requires time, place, and identity)
- Bob Timberlake Collection, Inc. v. Edwards, 176 N.C. App. 33, 626 S.E.2d 315 (2006) (fraud pleading insufficient when vague and general)
- Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964) (duty in tort separate from contractual promise)