Revolutionary Concepts, Inc. v. Clements Walker PLLC, 744 S.E.2d 130

Ronald Carter is the inventor of an Automated Audio Video Messaging and Answering System and founder of Revolutionary Concepts, Inc. (RCI-NC); he also founded RCI-NV, the plaintiff here.
Defendants include the law firm Clements Walker, PLLC (CW) and patent agent Brockington, plus several CW attorneys (Dougherty, Clements, Bernard, Miller).
Carter requested that CW delay publication of the patent application to preserve foreign filing rights under the PCT; CW allegedly published the application on December 29, 2005, thwarting foreign protection.
On July 17, 2006, Carter assigned all rights in the application to RCI-NV; Carter and RCI-NC filed malpractice and related claims against defendants in January 2007, which were later dismissed in 2007–2008.
On February 29, 2008, RCI-NV and Carter filed a new complaint asserting six causes of action; RCIN-CN merged with RCIN-V in August 2008, with RCIN-V as the surviving entity.
In May 2008, defendants moved to dismiss arguing lack of subject matter jurisdiction and standing; the trial court granted dismissal for lack of standing (2010 Order) but reserved jurisdiction on jurisdictional issues; in 2012, the court granted defendants’ joint and individual motions for summary judgment and denied amendments/substitutions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are malpractice claims assignable under North Carolina law?	Malpractice claims may be assignable; Carter’s rights could be assigned to RCI-NV.	Malpractice claims are personal tort claims and not assignable.	Malpractice claims are not assignable; Carter retains standing.
Did the merger automatically transfer malpractice claims to RCIN-V as surviving entity?	RCI-NV could assert claims post-merger as surviving entity.	No automatic transfer; post-merger action required to assert claims.	No automatic post-merger transfer; RCIN-V did not acquire rights; 2012 Order affirmed.
Was post-merger substitution under Rule 17 permissible to realign the real party in interest?	RCI-NV could substitute post-merger as real party.	Substitution not properly pursued in a timely fashion.	No abuse of discretion; substitution denied; relation back improper.
Was RCI-NV entitled to amend or relate back under Rule 15(c) to include pre-merger RCIN-NC claims?	Amendment relates back to the 2008 complaint after merger.	Amendment would be futile; no notice of merger-based claims.	Rule 15(c) relation back not permitted; amendment futile; no abuse in denial.
Did LLc members Clements and Bernard have personal liability for supervising others?	Clements and Bernard had supervisory duty and knowledge of wrongdoing.	Under LLC framework, no affirmative duty without actual knowledge.	No personal liability; Babb hodm; summary judgment proper.

Horton v. New S. Ins. Co., 122 N.C. App. 265 (1996) (general assignability of tort/contract claims)
Can Do, Inc. Pension & Profit Sharing Plan & Successor Plans v. Manier, Herod, Hollabaugh & Smith, 922 S.W.2d 865 (Term. 1996) (malpractice claims not assignable in many jurisdictions)
Botma v. Huser, 202 Ariz. 17 (2002) (public policy considerations on assignability of malpractice claims)
Gurski v. Rosenblum & Filan, LLC, 885 A.2d 163 (Conn. 2005) (case-by-case approach to assignability; prohibition to adversary transfers)
Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627 (Tex. Ct. App. 2000) (case-by-case approach to assignability)
Kommavongsa v. Haskell, 67 P.3d 1068 (Wash. 2003) (case-by-case limits on malpractice claim assignment)
Babb v. Bynum & Murphrey, 182 N.C. App. 750 (2007) (LLC member duty not to investigate absent knowledge)
Rorrer v. Cooke, 313 N.C. 338 (1985) (damages essential to professional malpractice claims)
Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 132 N.C. App. 160 (1999) (Rule 15(c) relation back standard; notice and identity required)