UNPUBLISHED OPINION
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
ZACHARY, Judge.
Where plaintiff's failure to amend his complaint within the period prescribed in the applicable statute of limitations was not based on defendants' misrepresentations, the trial court did not err in dismissing plaintiff's complaint in that plaintiff's suit was barred by the statute of limitations.
I. Factual and Procedural Background
On 10 January 2011, Zachary Howze (plaintiff) was staying at the hotel operated by Charlotte Express Inn (Charlotte Express) located at 1240 South Lucky Penny Street, Charlotte, North Carolina. While a guest at the Charlotte Express, there was inclement weather and the pathway became icy. As plaintiff attempted to walk along the pathway, he fell and injured his right ankle. Plaintiff required medical treatment and incurred medical bills as a result of the fall. On 8 August 2012, plaintiff brought an action against Charlotte Express, alleging negligence and strict liability and seeking to recover for his damages. On 9 May 2013, plaintiff filed an amended complaint including as a defendant Tejender Dhillon, based on the allegation that "Tejender Dhillon[] is the owner of Charlotte Express Inn[,]" and that "Tejender Dhillon has filed a Certificate of Assumed Name . . . listing Charlotte Express Inn as the name under which the business is conducted." Plaintiff repeatedly attempted service upon defendant, but was unsuccessful, and ultimately served defendant Tejender Dhillon d/b/a Charlotte Express Inn by publication in the Mecklenburg Times.
On 19 February 2014, plaintiff filed a motion for entry of default, which was granted. On 22 April 2014, plaintiff filed a motion for default judgment.
On 14 May 2014, the trial court heard plaintiff's motion for default judgment, and on 15 May 2014, granted plaintiff thirty days within which to amend the complaint to allow process and proof of service upon Dhillon Hotels, Inc. (Dhillon Hotels). On 15 May 2014, plaintiff filed an amended complaint, adding Dhillon Hotels as defendant. Dhillon Hotels was subsequently served on May 17, 2014 by the Mecklenburg County Sheriff's Department with a copy of the amended complaint and summons.
On 14 July 2014, Dhillon Hotels filed an answer and motion to dismiss plaintiff's complaint. That same day, Tejender Dhillon d/b/a Charlotte Express moved to set aside entry of default. On 18 August 2014, the trial court entered a consent order setting aside the entry of default. On 3 September 2014, Tejender Dhillon d/b/a Charlotte Express filed an answer and motion to dismiss plaintiff's complaint. On 14 November 2014, plaintiff moved to amend his complaint to allege that Dhillon Hotels operated Charlotte Express.
On 19 December 2014, the trial court entered an order on Dhillon Hotels' motion to dismiss. The trial court concluded that plaintiff failed to initiate a lawsuit against Dhillon Hotels within the three-year statute of limitations, that plaintiff knew or should have known that Dhillon Hotels was the owner and operator of Charlotte Express, that Dhillon Hotels was a separate and distinct legal entity from its owner, Tejender Dhillon, and that plaintiff's amended complaint dated 15 May 2014, purporting to add Dhillon Hotels as a defendant, did not "relate back" to plaintiff's original complaint. The trial court granted Dhillon Hotels' motion to dismiss, dismissed the lawsuit in its entirety with prejudice, and further denied plaintiff's 14 November 2014 motion to amend as moot.
Plaintiff appeals.
II. Motion to Dismiss
In his first argument, plaintiff contends that the trial court erred in granting Dhillon Hotels' motion to dismiss. We disagree.
A. Standard of Review
The decision of a trial court to dismiss an action based on the statute of limitations is reviewed by this Court de novo. Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd per curiam, 358 N.C. 534, 597 S.E.2d 703 (2004).
Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law. The statute of limitations having been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period.
Reece v. Smith, 188 N.C. App. 605, 607, 655 S.E.2d 911, 913 (2008) (citations and quotations omitted).
B. Analysis
Plaintiff was injured on 10 January 2011. He brought this action against Charlotte Express on 8 August 2012, and amended it to add Tejender Dhillon d/b/a Charlotte Express as a defendant on 9 May 2013. Plaintiff contends, and we agree, that the original complaint and first amended complaint were each filed within the time period permitted by the statute of limitations as concerns negligence actions.
Plaintiff further asserts that because Tejender Dhillon held himself out as the owner of Charlotte Express and therefore concealed the fact that Dhillon Hotels owned Charlotte Express, service upon Dhillon himself was proper, and it was error for the trial court to dismiss the lawsuit based upon a failure to add Dhillon Hotels.
Plaintiff's argument is specious at best. Plaintiff's contention is based upon the first page of the Certificate of Assumed Name, which states as follows:
1. The name under which the business is to be conducted is CHARLOTTE EXPRESS INN.
2. The name and address of the owner of such business is TEJENDER DHILLON, [address omitted].
However, that same page was signed "DHILLON HOTELS INC." by "Tejender S. Dhillon, President." Further, in the Certificate's verification, Dhillon identifies himself as the President of Dhillon Hotels, Inc. This matter was expressly raised at the 14 May 2014 hearing on plaintiff's default motion, at which the trial court asked plaintiff if he had searched Dhillon Hotels, Inc., and plaintiff replied that he had only searched Dhillon himself. As the name of Dhillon Hotels was plainly stated in the documents available to plaintiff, and in fact the Certificate was executed by Dhillon in his capacity as president of Dhillon Hotels, plaintiff cannot contend that a "material misrepresentation prevented the plaintiff from properly serving" Dhillon Hotels.
Plaintiff argues that because he lacked the means to identify the true owner of Charlotte Express and reasonably relied upon the Certificate of Assumed Name to determine the ownership of Charlotte Express, therefore filing a complaint against Dhillon himself, the trial court erred in dismissing plaintiff's complaint. Upon de novo review, we find plaintiff's arguments wanting. The facts are not in dispute. Dhillon Hotels was clearly the owner of Charlotte Express, based upon the signature line of the Certificate of Assumed Name. Plaintiff conceded that he had failed to search Dhillon Hotels initially. The statute of limitations on negligence claims is three years, and arises from the initial date of injury. See Reece, 188 N.C. App. at 606, 655 S.E.2d at 913. Plaintiff's injury occurred on 10 January 2011, and Dhillon Hotels was added as a defendant on 15 May 2014. Dhillon Hotels was not served within the three-year statute of limitations on negligence claims, and plaintiff's delay was not based upon defendants' concealment or misrepresentation, but upon plaintiff's own failure to engage in due diligence.
Nor did the amendment "relate back" to the initial filing. Rule 15 of the North Carolina Rules of Civil Procedure, which governs amendment of pleadings, provides that:
A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
N.C. R. Civ. P. 15(c) (2013). Our Supreme Court has interpreted this rule as follows:
When the 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); see also Reece, 188 N.C. App. at 609, 655 S.E.2d at 914.
In the instant case, the parties do not dispute that Dhillon Hotels, a corporation, is a distinct entity from Tejender Dhillon, its president. As such, it was necessary to serve notice upon Dhillon Hotels within the three year statute of limitations period, and an amendment would not function to do so, as it would not "relate back" to the initial filing. Plaintiff failed to demonstrate that his complaint was filed within the time specified by the statute of limitations, and accordingly the trial court did not err in granting defendants' motions to dismiss.
This argument is without merit.
III. Equitable Estoppel
In his second argument, plaintiff contends that the defendants, collectively, were equitably estopped from asserting the statute of limitations due to Dhillon's filing of a Certificate of Assumed Name listing himself, and not Dhillon Hotels, as the owner of Charlotte Express. As this argument is functionally identical to the previous one, we need not address it, and reaffirm our holding on that issue.
AFFIRMED.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
