Civil Practice – Statute of Limitations – Breach of Contract – Corporate – Bankruptcy

 Coderre v. Futrell (Lawyers Weekly No. 12-07-1219, 11 pp.) (Ann Marie Calabria, J.) Appealed from New Hanover County Superior Court (John E. Nobles Jr., J.) N.C. App.

Holding: Individual plaintiff Shane Coderre was not a party to the contract that he alleged defendants breached, nor did he allege that he was an intended third-party beneficiary of the contract; therefore, Coderre had no standing to file the breach-of-contract complaint. Since Coderre’s complaint was a nullity, its amendment to include the corporate plaintiff – which was a party to the contract – did not relate back to the filing of the original complaint.

We affirm the trial court’s grant of defendants’ motion to dismiss.

The corporate plaintiff’s failure to timely file its breach of contract claim is not excused by its bankruptcy. The corporation could have filed suit while it was a debtor in possession; once the bankruptcy was converted to chapter 7, the bankruptcy trustee could have filed suit on the corporation’s behalf. Finally, the corporation failed to file suit within two years after the order for relief was entered.