Civil Practice – Statute of Limitations – Pleadings – Amendment – Relation Back – Breach of Contract

Kearney v. Barker (Lawyers Weekly No. 12-16-0501, 10 pp.) (Linda M. McGee, J.) Appealed from Granville County Superior Court. (Robert H. Hobgood, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Plaintiff made it clear that his original complaint was intended to sue only the father, Phillip Junior Barker, and not the son, Phillip Renard Barker. After the statute of limitations had run, plaintiff filed an amended complaint adding the son as a defendant. The amended complaint does not relate back to the filing of the original complaint, so plaintiff’s claim against the son is time-barred.

We reverse the trial court’s judgment against the son. Since the father failed to file a brief with this court, we dismiss the father’s appeal.

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.

In this case, plaintiff was not confused about the name of the party he intended to sue.

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 named 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, we conclude the naming of the son in plaintiff’s amended complaint does not “relate back” to plaintiff’s original complaint. Thus, the statute of limitations had expired, and plaintiff’s amended complaint was not timely filed.

Reversed in part; dismissed in part.