Civil Practice – Relation Back – Voluntary Dismissal – Unrelated Plaintiff

Where the original, timely filed complaint mistakenly named as plaintiff an entity with no relationship to the cause of action, and where – after a voluntary dismissal and refiling – the true party in interest was substituted as plaintiff after the statute of limitations had expired, the substitution of the true plaintiff did not relate back to the filing of the original complaint.

We affirm summary judgment for defendant.

Background

In an attempt to recoup fees charged by the defendant-city, Gary Gantt, who operates a sole proprietorship called Gantt Construction, filed a complaint mistakenly naming as plaintiff Gantt Construction Co., a “corporation organized and existing under the laws of the State of Texas with its principal place of business in Texas.” That timely-filed complaint was dismissed without prejudice and refiled within one year.

The trial court allowed Gantt to amend the refiled complaint to substitute as plaintiff “Gary Gantt d/b/a Gantt Construction.” Both the refiling of the complaint and the amendment of the refiled complaint occurred more than three years after Gantt paid the fees in question. On defendant’s motion, the trial court dismissed Gantt’s claims as time-barred.

Discussion

According to plaintiff, Burcl v. North Carolina Baptist Hospital, Inc., 306 N.C. 214, 293 S.E.2d 85 (1982), and Estate of Tallman ex rel. Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428 (2009), compel this court to hold that his amended complaint relates back to both the original complaint and the refiled complaint because each pleading gave defendant full notice of the transactions and occurrences upon which plaintiff’s claim is based. We disagree.

Burcl and Tallman required amendments to alter a party’s legal capacity to sue, and neither involved a voluntary dismissal under N.C. R. Civ. P.41. Instead, those cases only address relation back under N.C. R. Civ. P. 15 and 17.

Rule 41 does not pertain to amendments but instead concerns new filings of pleadings that have been voluntarily dismissed. N.C. R. Civ. P. 41(a). Plaintiff is incorrect in asserting that notice is also the determinative inquiry for the relation-back analysis under Rule 41.

Because the complaints in this case involve two separate and distinct legal entities as party plaintiffs—one of which lacked standing to bring the initial suit— rather than one party whose capacity to sue has changed, this case neither conflicts with nor disrupts the precedent set forth in Burcl and Tallman.

Where an initial action, as here, involves a plaintiff who lacked standing to bring suit, the initial complaint is a nullity, and thus, there is no valid complaint to which an amended complaint may relate back.

Furthermore, this court has suggested that, to benefit from the one-year extension afforded by Rule 41(a), subsequent complaints must be filed by the same plaintiff. See Revolutionary Concepts, Inc. v. Clements Walker PLLC, 277 N.C. App. 102, 744 S.E.2d 130 (2013). Plaintiff’s reliance on the principle of notice is misguided; notice is not the determinative inquiry for relation back under Rule 41.

Gantt Construction Co. was not a real party in interest because it neither owned the property subject to the capacity fees nor paid the capacity fees, and therefore had no standing to bring the initial claim. Gantt Construction Co. did not have standing to bring the original complaint; hence, the trial court lacked subject matter jurisdiction.

The trial court’s lack of subject matter jurisdiction rendered the original complaint a nullity. Because the original complaint was a nullity, there is no valid action to which plaintiff’s amended complaint could relate back under Rule 41(a). Accordingly, plaintiff cannot avail himself of relation back under Rule 41(a) because the second action does not involve the “same parties” as the first and the named plaintiff in the first action lacked standing to bring suit against defendant for assessing allegedly ultra vires water capacity fees.

Since the second complaint was not filed within the statute of limitations, and since plaintiff may not benefit from relation back under Rule 41, plaintiff’s claims are barred by the statute of limitations.

Affirmed.

Gantt v. City of Hickory (Lawyers Weekly No. 011-157-23, 13 pp.) (Jeffery Carpenter, J.) Appealed from Catawba County Superior Court (Nathaniel Poovey, J.) On rehearing. James DeMay, Daniel Bryson, Scott Harris and John Hunter Bryson for plaintiff; Paul Culpepper and Timothy Swanson for defendant. North Carolina Court of Apeals