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Civil Practice – Pleadings – Motion to Amend – Named Defendant – ‘AKA’ – Separate Entities

Teresa Bruno, Opinions Editor//December 21, 2016//

Civil Practice – Pleadings – Motion to Amend – Named Defendant – ‘AKA’ – Separate Entities

Teresa Bruno, Opinions Editor//December 21, 2016//

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Goodwin v. Four County Electric Care Trust, Inc. a/k/a Four County Electric Membership Corp. (Lawyers Weekly No. 011-414-16, 21 pp.) (Chris Dillon, J.) Appealed from Sampson County Superior Court (Charles Henry, J.) N.C. App.

Holding: Where (1) Four County Electric Care Trust, Inc. (the non-profit trust) and Four County Electric Membership Corp. (the membership co-op) – are separate and distinct entities; (2) both the summons and complaint sere served only upon the non-profit trust; and (3) the body of the complaint never alleges any facts concerning the membership co-op, but only alleges that the power line regulator (with which plaintiff came into contact) was owned, operated and maintained by the non-profit trust, plaintiff’s motion to amend his summons and complaint to reflect that the membership co-op was the correct entity would not have corrected a misnomer but instead would have resulted in the substitution of parties.

We affirm the trial court’s denial of plaintiff’s motion to amend and its grant of the non-profit trust’s motion to dismiss.

In support of its motion to dismiss, the non-profit trust offered two affidavits which established that (1) the membership co-op and the non-profit trust are two separate, distinct legal entities and (2) the power line regulator is owned, operated, and maintained by the membership co-op and not by the non-profit trust. Since this was the only evidence before the trial court concerning the ownership of the power line regulator, there was no genuine issue of fact as to the non-profit trust’s lack of responsibility for plaintiff’s injuries.



(Hunter Jr., J.) It is alleged that plaintiff was mentally incompetent before the occurrence leading to his injury and was further catastrophically injured after the accident. On this basis, the clerk of court appointed a guardian ad litem for him as an incompetent person.

The GAL filed this lawsuit on the day he was appointed, which was almost three years after the accident.

The parties and the trial court appear to have proceeded under the misimpression that the statute of limitations on plaintiff’s claim had expired, leaving plaintiff unable to file a new complaint against the proper defendant. Because the majority declines to address the statute of limitations issue, not only does it leave plaintiff’s underlying negligence claim, like Schrödinger’s cat, in a state where it may be alive or dead, but it also fails to disabuse all concerned of the notion that an amendment to plaintiff’s complaint would need to relate back to the date of filing under N.C. R. Civ. P. 15(c).

State law tolls the statute of limitations for plaintiffs who were disabled when the cause of action arose.

Thus, I would like to make it clear the cat is alive; the statute of limitations has not yet expired on plaintiff’s negligence claim. As a result, the trial court was free to exercise its discretion to grant plaintiff’s motion to amend. Neither the trial court’s judgment nor our affirmance should bar future litigation on the merits of his claim.

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