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Tag Archives: Amendment

Real Property – Restrictive Covenants – Amendment – Pre-Amendment Violations – Tort/Negligence – Breach of Fiduciary Duty Claim (access required)

Taddei v. Village Creek Property Owners Association, Inc. Even though one paragraph of the subdivision’s restrictive covenants only allows the declarant, or its successors or assigns, to amend the covenants in order to bring them into compliance with town ordinances, another paragraph of the covenants allows a majority of property owners to amend the covenants before they are renewed every 10 years. The defendant-homeowners’ association followed the latter paragraph’s requirements to amend the covenants.

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Civil Practice – Statute of Limitations – Pleadings – Amendment – Relation Back – Breach of Contract (access required)

Kearney v. Barker 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.

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Civil Practice – Pleadings – Amendment – Additional Parties – Sovereign Immunity – Insurance (access required)

Robinson v. Smith Defendants had not filed a responsive pleading when plaintiffs filed their amended complaint; therefore, N.C. R. Civ. P. 20 (permissive joinder) and 21 (misjoinder and nonjoinder) do not apply, despite the fact that the amended complaint named additional defendants.

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Civil Practice – Pleadings – Amendment – Relation Back – Complaint Verification – Rule 11 – First Impression (access required)

Estate of Livesay v. Livesay Forty-two days after the complaint and summonses had been issued - but before any responsive pleadings had been filed - plaintiff’s counsel discovered that the complaint had not been signed or verified. Counsel quickly filed an amended, signed complaint. Pursuant to N.C. R. Civ. P. 11 and 15, the trial court had subject matter jurisdiction over the complaint.

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Real Property – Restrictive Covenants – Amendment – Homeowners’ Association President – Fiduciary Duty (access required)

Taddei v. Village Creek Property Owners Association, Inc. Even though paragraph 33 of the Village Creek restrictive covenants says the covenants can only be amended to bring them into conformity with town ordinances or actions, paragraph 3 says the covenants are effective for 20 years with automatic 10-year renewals and that the covenants can be amended before any term. The covenants were properly amended pursuant to paragraph 3.

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Real Property – Condominium Declaration – Amendment – Boat Slip Assignment – Civil Practice – Res Judicata & Collateral Estoppel – UOA & NCCA (access required)

Bowers v. TempleIn a prior lawsuit, the court struck down an amendment to a condominium declaration because it was not properly recorded. Even though the court went on to opine that unanimous consent by owners was required to amend the declaration and to delineate the amendment’s effect on owners’ rights, these statements were not material, relevant, necessary or essential to the judgment, so they do not collaterally estop the litigation of these issues in the present lawsuit.

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Civil Practice – Pleadings – Amendment – Party Substitution – Sheriff for Sheriff’s Department (access required)

Treadway v. Diez The Court of Appeals upheld the trial court’s grant of plaintiff’s motion to amend her complaint to name the sheriff as a defendant in place of the originally-named defendant, the sheriff’s department. We reverse for the reasons stated in Judge Jackson’s dissent: The amendment at issue constitutes more than a simple correction of a misnomer. Plaintiff sought to substitute a new party-defendant over whom she could obtain jurisdiction - the sheriff — in place of an entity that is not subject to suit - the sheriff’s department.

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