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Tort/Negligence – Breach of Contract – Civil Practice – Statute of Limitations – Personal Jurisdiction – Corporate Subsidiary — Fraud – Unfair Trade Practices — Cemetery

Tort/Negligence – Breach of Contract – Civil Practice – Statute of Limitations – Personal Jurisdiction – Corporate Subsidiary — Fraud – Unfair Trade Practices — Cemetery

Birtha v. Stonemor, North Carolina, LLC (Lawyers Weekly No. 12-07-0466, 20 pp.) (Cheri Beasley, J.) Appealed from Mecklenburg County Superior Court. (Timothy L. Patti, J.) N.C. App. Full-text opinion.

Holding: Plaintiffs allege that defendants misplaced their deceased loved ones’ headstones and/or remains. Plaintiffs have cited no authority to suggest that these alleged acts amount to a continually recurring violation as opposed to the continued ill effects from an original violation; therefore, the continuing wrong doctrine does not apply to toll the statute of limitations.

We affirm the trial court’s dismissal of plaintiffs’ claims.

Plaintiffs do not allege bodily harm or physical damage to their property; therefore, the discovery rule is not applicable. Only plaintiff Grier’s negligence claim was brought within the three-year statute of limitations.

Even though defendant Service Corporation International (SCI) owns all the shares of defendant Alderwoods Group, Inc., plaintiffs failed to refute SCI’s showing that it has no employees, its corporate headquarters are in Texas, it had no business dealings in North Carolina, it maintains no accounts in North Carolina, it owns no real property in North Carolina, and it does not pay taxes to the State of North Carolina. Plaintiffs failed to show that N.C. courts have personal jurisdiction over SCI.

G.S. § 65-60 requires cemetery companies to keep records of burials and to have such records available for inspection by the N.C. Cemetery Commission.

We fail to see how plaintiffs are included in the class that the statute was designed to protect. Moreover, plaintiffs also fail to allege that their injuries were suffered by an interest which the statute protected, and that the injuries were of the nature contemplated in the statute.

The trial court properly dismissed all of the negligence claims, including Mr. Grier’s claim.

Except for Mr. Grier, plaintiffs’ breach of contract claims were filed well outside the three-year statute of limitations; thus, they were correctly dismissed as untimely.

The trial court also correctly dismissed the breach of contract claims for failure to state a claim. Plaintiffs allege that violation of G.S. § 65-60 is the basis for their breach of contract claims. Because a violation of the statute is not the proper basis for a breach of contract claim, plaintiffs’ breach of contract claims for failure to maintain records, including Mr. Grier’s, were properly dismissed.

Finally, the breach of contract claims were properly dismissed because the allegations failed to provide even general terms of the contract which were necessary to determine whether a breach occurred.

The trial court correctly noted that fraud upon the public is not a recognized theory of recovery under N.C. law.

Where plaintiffs failed to allege (1) the time, place, or content of defendants’ misrepresentations; (2) the particular person making the misrepresentation; or (3) whether plaintiffs relied on these misrepresentations, plaintiffs failed to allege fraud with particularity.

Finally, plaintiffs’ breach of contract allegations did not set out substantial aggravating circumstances; therefore, the trial court properly dismissed their unfair trade practices claim.




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