An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1223
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     17 June 2014

TAMMY FLORENTZ as Guardian ad
Litem for TIMOTHY P. RHODES and
TAMMY FLORENTZ,
     Plaintiffs,

      v.                                      Moore County
                                              No. 12 CVS 1359
JESSE GORE,
     Defendant.


      Appeal by plaintiff from order entered 31 May 2013 by Judge

Patrice A. Hinnant in Moore County Superior Court.                  Heard in the

Court of Appeals 19 February 2014.


      Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp and
      William M. Van O’Linda, Jr., for plaintiff-appellant.

      Linda Reid Oldham for defendant-appellee.


      McCULLOUGH, Judge.


      Plaintiff Tammy Florentz appeals from an order of the trial

court      granting    defendant      Jesse    Gore’s     motion     to    dismiss

plaintiff Tammy Florentz’s individual claims of negligence and

denying plaintiffs’ motion to amend the complaint.                  Based on the

reasons stated herein, we affirm the order of the trial court.

                                I.     Background
                                               -2-
      On 31 October 2012, plaintiffs Tammy Florentz as guardian

ad litem for Timothy P. Rhodes (“Timothy”) and Tammy Florentz

(“Florentz”)          filed     a   complaint        against        defendant       Jesse    Gore

alleging      negligence.             The   complaint          alleged       that    plaintiffs

rented a home from defendant, located at 505 N. Ridge Crest

Street      in     Pinebluff,          North     Carolina           (“leased        property”).

Beginning        in     2005,       shortly      after        moving     into       the     leased

property,             Timothy            began         developing               “respiratory,

gastrointestinal and neurological symptoms including, but not

limited to, migraines, nausea and sinus infections.”                                 Plaintiffs

discovered         water      leaks      surrounding          the    fireplace,           bathroom

fixtures, and water heater.                   The water leaks caused significant

water damage to the home.                 All leaks were reported to defendant.

The   water      leak      surrounding        the    fireplace         was    never       resolved

although      in      response      to   the     complaints          regarding       the    other

leaks,   defendant          sent      individuals        to    fix     the    leaks.         These

individuals failed to correct the water damage.

      The     complaint         also     alleged      that      “[a]s    the     water       leaks

continued, especially surrounding the fireplace, Tammy Florentz

notified [defendant] of the persistent odor of mildew and mold.

Additionally, Ms. Florentz reported the appearance and growth of

mold surrounding the fireplace, bathroom and bedrooms of the
                                          -3-
Leased      Property.”       Despite     her    complaints      to    defendant,         the

mold, mildew, and water damage was not corrected by defendant

and plaintiffs were forced to move from the leased property.

       Plaintiffs allege that defendant was negligent in that he

failed to maintain the leased property in a condition such that

it would not have persistent water leaks, had a duty to correct

the water leaks, water damage and mold and mildew growth within

the    leased     property,    failed     to    correct     the    mold         and   mildew

conditions        within   the    leased        property,    and       was       otherwise

negligent as discovered through this litigation.                            As a direct

and    proximate      result     of    defendant’s       negligence,            plaintiffs

alleged that Timothy had suffered severe physical injuries and

that   plaintiffs      incurred       medical    bills    and     endured         pain   and

suffering.

       On     4    January       2013,     defendant        filed          an     “Answer,

Counterclaim, and Motion to Dismiss.”                 Defendant requested that

the trial court dismiss plaintiffs’ action for failure to state

a cause of action upon which relief may be granted pursuant to

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.

Defendant’s        affirmative        defenses      included         the        following:

equitable estoppel; contributory negligence; assumption of risk;

intervening        circumstances;        payment,     accord         and        settlement,
                                   -4-
and/or   setoff.     Defendant   also    filed   a   counterclaim   against

plaintiffs for negligent misrepresentation.

    On 6 March 2013, plaintiff filed a “Reply to Counterclaim.”

    Following a hearing held during the 13 May 2013 session of

Moore County Civil Superior Court, the trial court entered an

“Order Dismissing Individual Claims of Tammy Florentz” on 31 May

2013.    The trial court made the following pertinent findings of

fact:

           1.   Plaintiffs filed a Complaint against the
                Defendant on October 31, 2012[.] . . . .

           . . . .

           3.   Plaintiffs’     Complaint    alleged     in
                paragraph    4    “Beginning    in    2005,
                Plaintiffs    resided    in   the    Leased
                Property, shortly after moving into the
                property Timothy developed respiratory,
                gastrointestinal      and     neurological
                symptoms, including, but not limited to,
                migraines, nausea and sinus infections.”

           . . . .

           6.   Defendant’s   Answer   and    Counterclaim
                responded in paragraph 7 “It is admitted
                that   the  Plaintiff,   Tammy   Florentz,
                reported a mold issue to Defendant in
                February of 2007.   Defendant immediately
                instructed   Plaintiff   to   vacate   the
                premises so that the issue could be
                addressed.”

           7.   Defendant’s    Counterclaim    alleged    in
                paragraph   1   “In   February   of    2007,
                Plaintiff,    Tammy   Florentz,    notified
                      -5-
     Defendant for the first time that she had
     found mold in the residence she rented
     from the Defendant.”

8.   In Plaintiff’s Reply to Counterclaim,
     Plaintiff    responds     to    Defendant’s
     allegation as follows:     “The allegations
     set   forth   in   paragraph    1  of   the
     Counterclaim     are     admitted,     upon
     information and belief.”

9.   N.C. Gen. Stat. [§] 1-52 sets forth a
     three   year    statute   of  limitation
     applicable to the alleged claims of the
     Plaintiff, Tammy Florentz.

10. Pursuant to N.C. Gen. Stat. [§] 1-52, the
    cause of action for Plaintiff, Tammy
    Florentz, began to accrue when the bodily
    harm became “apparent or ought reasonably
    to have become apparent to the claimant,
    whichever event first occurs.”

11. Plaintiff alleges that her son began
    having medical problems shortly after
    moving into the rental property in 2005.

12. Plaintiff further alleges that she and
    her son moved out of the rental property
    in 2007 upon the advice of Timothy’s
    physicians.

13. The   allegations  in  paragraph   9  of
    Plaintiffs’ Complaint alleges a clearly
    apparent cause of action as of time
    Plaintiff and her minor son moved out of
    the rental property which has been shown
    to be in 2007.

14. The three year statute of limitation set
    forth in N.C. Gen. Stat. [§] 1-52(16) and
    applicable to the causes of action of
    Plaintiff, Tammy Florentz, has expired.
                                               -6-
              15. That the statute of limitations bars all
                  claims   of   Tammy  Florentz   in   her
                  individual capacity as a Plaintiff in
                  this action.

              6.    That the Plaintiff, Timothy P. Rhodes, is
                    a minor child, and said disability
                    prevents his causes of action from
                    accruing.

The   trial      court         granted    defendant’s     motion      to    dismiss     the

individual         claims       of    Florentz.         Timothy’s     claims       against

defendant remain intact.

      The   31      May    2013       order    also   noted   that    on    16    May   2013

plaintiffs’ counsel made an oral motion to amend the complaint.

After hearing from both attorneys, plaintiffs’ motion to amend

the complaint was denied.

      From the 31 May 2013 order, Florentz appeals.

                                II.    Discussion

      On appeal, plaintiff argues that the trial court erred by

(A) dismissing Florentz’s individual claims against defendant

and   (B)   denying         plaintiffs’        motion   to    amend    the       complaint.

However, as a preliminary matter, we must first address whether

this interlocutory appeal is properly before us for review.

      “An interlocutory order is one made during the pendency of

an action, which does not dispose of the case, but leaves it for

further     action        by    the    trial    court    in   order    to    settle     and
                                                  -7-
determine the entire controversy.”                          Wilfong v. N.C. DOT, 194

N.C.   App.       816,    817,       670    S.E.2d        331,    332     (2009)        (citation

omitted).     “[T]he appellant has the burden of showing this Court

that the order deprives the appellant of a substantial right

which would be jeopardized absent a review prior to a final

determination on the merits.”                       Jeffreys v. Raleigh Oaks Joint

Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).

       Here, Florentz concedes that the appeal is interlocutory,

but argues that there is a risk of inconsistent verdicts absent

immediate appellate review.                  We agree.

       Our Court has held that a substantial right is affected

when   “(1)   the        same   factual         issues     would     be      present     in   both

trials and (2) the possibility of inconsistent verdicts on those

issues exists.”            Estate of Redding v. Welborn, 170 N.C. App.

324,   328-29,      612     S.E.2d         664,    668     (2005)    (citation          omitted).

Because the same factual issues would be present in two separate

trials,     and    because       Florentz’s             claims   against       defendant        are

derivative of Timothy’s claims against defendant, there is a

risk   of   separate        trials         on     the    same    issues      and    a    risk    of

inconsistent       verdicts.           Thus,        we     proceed      to    the   merits       of

Florentz’s appeal.

                                A.     Motion to Dismiss
                                           -8-
    First,      Florentz      argues       that    the   trial   court    erred     by

granting defendant’s 12(b)(6) motion when it considered matters

outside of the complaint.

    In the case sub judice, the first affirmative defense in

defendant’s 12(b)(6) motion was that the three year statute of

limitations     set    out    in   N.C.     Gen.    Stat.    §   1-52    barred    any

recovery by Florentz.          In its 31 May 2013 order, the trial court

found   that    plaintiffs’        cause    of    action    began   to    accrue    in

February   of   2007    by    taking       into   consideration     defendant’s     4

January 2013 “Answer, Counterclaim, and Motion to Dismiss” and

plaintiffs’ 6 March 2013 “Reply to Counterclaim.”                       Accordingly,

the trial court held that plaintiffs’ 31 October 2012 complaint

was filed after the expiration of the                      applicable    statute of

limitations.

    Because the trial court considered defendant’s answer and

counterclaim, in addition to plaintiffs’ reply to defendant’s

counterclaim, the trial court effectively converted defendant’s

12(b)(6) motion to dismiss into a Rule 12(c) motion for judgment

on the pleadings.            See S.N.R. Mgmt. Corp. v. Danube Partners

141, LLC, 189 N.C. App. 601, 617, 659 S.E.2d 442, 454 (2008).

“To determine whether the trial court erred in granting judgment

on the pleadings under Rule 12(c) of the North Carolina Rules of
                                       -9-
Civil   Procedure    in   favor   of    [defendant],   we   apply   de   novo

review.”   Id. (citation omitted).

    N.C. Gen. Stat. § 1-52(16) provides that the statute of

limitations for plaintiffs’ claims are three years and that

           [u]nless otherwise provided by statute, for
           personal injury or physical damage . . .
           referred to in G.S. 1-15(c), shall not
           accrue until bodily harm to the claimant or
           physical damage to his property becomes
           apparent or ought reasonably to have become
           apparent to the claimant, whichever event
           first occurs. . . .

N.C. Gen. Stat. § 1-52(16) (2013) (emphasis added).

    Our review indicates that on 31 October 2012, plaintiffs

filed a complaint alleging, inter alia, the following:

           4. Beginning in 2005, Plaintiffs resided in
              the Leased Property, shortly after moving
              into   the   property   Timothy   developed
              respiratory,      gastrointestinal      and
              neurological symptoms including, but not
              limited to, migraines, nausea and sinus
              infections.

           5. Not long after the moving into the Leased
              Property the Plaintiff discovered a water
              leak   surrounding   the   fireplace   and
              reported this leak to the Defendant. . . .

           . . . .

           7. As the water leaks continued, especially
              surrounding the fireplace, Tammy Florentz
              notified [defendant] of the persistent
              odor of mildew and mold.    Additionally,
              Ms. Florentz reported the appearance and
              growth of mold surrounding the fireplace,
                                                      -10-
                    bathroom and                  bedrooms          of       the    Leased
                    Property.

               8. Despite Ms. Florentz’s complaints                                       the
                  mold, mildew and water damage was                                       not
                  corrected by [defendant].

               9. Ultimately, upon the [advice] of Timothy’s
                  physicians, Timothy and [Florentz] were
                  forced to move from the Leased Property.

    In        defendant’s           “Answer,                   Counterclaim,        and        Motion    to

Dismiss,”       defendant         raises          a    statute          of     limitations        defense,

arguing       that    N.C.       Gen.    Stat.             §    1-52    barred      any       recovery   by

Florentz.            In    paragraph          7       of       defendant’s         answer,       defendant

admits    that       Florentz       reported               a     mold     issue     to    defendant      in

February of 2007.                In paragraph 1 of defendant’s counterclaim,

defendant          alleges       that        “[i]n             February      of    2007,        [Florentz]

notified Defendant for the first time that she had found mold in

the residence she rented from the Defendant.”                                            In plaintiffs’

“Reply        to     Counterclaim,”                   plaintiffs             stated       that       “[t]he

allegations set forth in paragraph 1 of the Counterclaim are

admitted, upon information and belief.”

    Based on the foregoing, we find that in 2005, Florentz was

aware    of    the        mold    and    mildew            issues       existing         in    the   leased

property       and    was        aware       that      Timothy           had      begun       experiencing

physical       problems.                As    alleged             in      plaintiffs’          complaint,

Florentz was aware of the connection between the mold and mildew
                                            -11-
issues and the bodily injury to Timothy based on the advice of

Timothy’s    physicians        to     move    out       of     the    leased     property.

Florentz heeded this advice and moved from the leased property.

Defendant’s “Answer, Counterclaim and Motion to Dismiss” alleges

that plaintiffs moved out of the leased property in 2007 and

Florentz    concedes        this    date     in    her       brief.      Therefore,      we

conclude that as of 2007, Timothy’s alleged bodily harm became

apparent     or     ought    to     reasonably          have    become       apparent    to

Florentz, triggering the cause of action to accrue.

    Because        plaintiffs’        complaint         was    not     filed     until   31

October     2012,     clearly        beyond       the    three        year     statute   of

limitations, the trial court did not err by concluding that

Florentz’s       individual        claims    against         defendant       were   barred.

Thus, we hold that the trial court properly granted defendant’s

12(b)(6) motion and dismissed Florentz’s individual claims as

untimely.

             B.      Motion to Amend the Complaint

    In     her    next   argument,      Florentz         contends       that    the   trial

court erred by denying her motion to amend the complaint where

it gave no “justifying reason for the denial.”

    The standard of review for a motion to amend a complaint

“requires a showing that the trial court abused its discretion.
                                          -12-
. . .      Proper reasons for denying a motion to amend include

undue delay, unfair prejudice, bad faith, futility of amendment,

and repeated failure of the moving party to cure defects by

other    amendments.”          Revolutionary      Concepts,         Inc.   v.   Clements

Walker PLLC, __ N.C. App. __, __, 744 S.E.2d 130, 136 (2013)

(citation    omitted)         (emphasis    added).          “When   the    trial    court

states no reason for its ruling on a motion to amend, this Court

may examine any apparent reasons for the ruling.”                          Williams v.

Owens,    211    N.C.    App.     393,    394,   712    S.E.2d      359,   360     (2011)

(citation omitted).

      It is well established that “[i]n deciding if there was

undue delay, the trial court may consider the relative timing of

the   proposed        amendment    in     relation     to    the    progress     of   the

lawsuit.”       Draughon v. Harnett Cnty. Bd. of Educ., 166 N.C. App.

464, 467, 602 S.E.2d 721, 724 (2004) (citation omitted).                               In

Wilkerson v. Duke Univ., __ N.C. App. __, __, 748 S.E.2d 154,

161 (2013), the trial court denied the plaintiff’s motion to

amend his complaint based on undue delay and undue prejudice.

After finding that the plaintiff’s motion to amend was delivered

to the defendants thirteen months after he filed the initial

complaint       and    only    five   days   prior     to     the    hearing     on   the

defendants’ motion for summary judgment, our Court held that
                                             -13-
“[w]e    cannot      say   the    trial      court     abused     its    discretion      in

denying plaintiff’s motion to amend for undue delay and undue

prejudice.”       Id.      In the case before us, the trial court denied

plaintiffs’ motion to amend the complaint without making any

specific       findings     of    fact       supporting      the       court’s    denial.

Plaintiffs had requested to amend the complaint to state that

Florentz   “learned        of    the    defendant’s        negligence     on     or   about

August    19    of    2011.”       We    note       that   plaintiffs      filed      their

complaint on 31 October 2012.                       Defendant filed its “Answer,

Counterclaim         and    Motion      to    Dismiss”       on    4    January       2013.

Plaintiffs filed their “Reply to Counterclaim” on 6 March 2013.

Similar to the reasoning stated in Wilkerson, we observe that

plaintiffs’      motion to amend the complaint was made over six

months after they filed the initial complaint and the motion was

made orally at the 16 May 2013 hearing on defendant’s motion to

dismiss.       In light of these facts, we defer to the trial court’s

discretionary determination to deny plaintiffs’ motion to amend

the complaint.

                                  III. Conclusion

    Where the trial court did not err by dismissing Florentz’s

individual claims against defendant and by denying plaintiffs’
                             -14-
motion to amend the complaint, we affirm the 31 May 2013 order

of the trial court.

    Affirmed.

    Judge HUNTER, Robert C. concurs.

    Judge GEER dissents.

    Report             per             Rule             30(e).
                             NO. COA13-1223

                   NORTH CAROLINA COURT OF APPEALS

                          Filed: 17 June 2014


TAMMY FLORENTZ as Guardian ad
Litem for TIMOTHY P. RHODES
and TAMMY FLORENTZ,
          Plaintiffs,

    v.                                    Moore County
                                          No. 12 CVS 1359
JESSE GORE,
          Defendant.


    GEER, Judge dissenting.


    This appeal is from an interlocutory order.                 Because the

trial court did not certify the order for immediate review under

Rule 54(b) of the Rules of Civil Procedure and because I do not

believe    that   the   appellant   has    shown     the   existence   of   a

substantial right, I believe that we lack jurisdiction to hear

the appeal and, therefore, would dismiss the appeal.

    As our Supreme Court has held, "[i]n general, a party may

not seek immediate appeal of an interlocutory order."              Dep't of

Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 709 (1999).

However,   "[i]nterlocutory    orders     may   be   appealed   immediately

under two circumstances.        The first is when the trial court

certifies [under Rule 54(b)] no just reason exists to delay the

appeal after a final judgment as to fewer than all the claims or
                                 -2-


parties in the action.   The second is when the appeal involves a

substantial right of the appellant and the appellant will be

injured if the error is not corrected before final judgment."

N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 47-48,

619 S.E.2d 495, 496 (2005) (internal citation omitted).

    In this case, the trial court did not include a Rule 54(b)

certification in its order allowing the motion to dismiss Ms.

Florentz' claims.   As a result, this Court has jurisdiction over

this appeal only if "'the order deprives the appellant of a

substantial right which would be jeopardized absent a review

prior to a final determination on the merits.'"        Jeffreys v.

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d

252, 253 (1994) (quoting S. Uniform Rentals, Inc. v. Iowa Nat'l

Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988)).

    Ms. Florentz argued and the majority opinion agrees that a

substantial right exists because, as the majority explains, "the

same factual issues would be present in two separate trials, and

because Florentz's claims against defendant are derivative of

Timothy's claims against defendant, there is a risk of separate

trials on the same issues or a risk of inconsistent verdicts."

However, the very fact that Ms. Florentz' claims are derivative

eliminates any possibility of inconsistent verdicts.
                                           -3-


       While I have not found a case addressing the ability to

appeal   an    interlocutory    order      dismissing   a     derivative     claim,

this   Court    has   addressed      our   jurisdiction       in   the   analogous

context of derivative liability.                 In Long v. Giles, 123 N.C.

App.   150,    152,   472   S.E.2d    374,   375    (1996),    the   trial    court

entered summary judgment for a defendant employer sued based on

a respondeat superior theory, but left pending claims against

the defendant employee.

       In holding that no substantial right existed because there

could be no possibility of inconsistent verdicts, this Court

explained:

                   A   finding     of   liability    against
              defendant [employer], as [the individual
              defendant's] employer, is only possible if
              [the defendant employee's] estate is found
              liable, and the injuries arose out of and in
              the course of his employment.        In other
              words, defendant [employer's] liability is
              derivative     of    [defendant    employee's]
              liability, and the primary claim against the
              [defendant employee's] estate must first be
              determined    before    any   claim    against
              [defendant employer] is possible.      Only if
              the court determines that plaintiffs may
              recover from the estate can their right to
              recover    from   defendant    [employer]   be
              affected by the summary judgment.

                   If plaintiffs do not recover against
              [the defendant employee's] estate, they
              cannot seek to recover against defendant
              [employer]  under  a   respondeat superior
              theory, and an appeal of summary judgment
              would be moot.       Moreover, if summary
                                         -4-


            judgment for defendant [employer] is in
            error, plaintiffs can preserve their right
            to complain of the error by a duly entered
            exception, and may appeal after a successful
            judgment on the primary claims against [the
            defendant employee's] estate.

Id.

       The Court, therefore, concluded in Long: "Because the issue

of defendant [employer's] liability is derivative of a finding

of liability against [the defendant employee's] estate, there is

no    possibility   of   inconsistent       verdicts,        and    no   substantial

right is involved that would make an appeal of summary judgment

appropriate at this time."           Id. at 153, 472 S.E.2d at 375-76.

Accord Florek v. Borror Realty Co., 129 N.C. App. 832, 835, 501

S.E.2d 107, 108 (1998) (holding that claims based on principal

and    agent    relationship      gave      rise   to    "no       possibility    of

inconsistent      verdicts   as    any   liability      on    the    part   of   [the

principal] hinges upon a finding of liability on the part of

defendant [agents]").

       The reasoning in Long applies equally to this case.                       Ms.

Florentz may recover only if the claims brought on behalf of her

son succeed.      See Holt v. Atl. Cas. Ins. Co., 141 N.C. App. 139,

142, 539 S.E.2d 345, 347 (2000) (concluding that parent's "claim

for    [injured     minor's]      medical     expenses       is     derivative    in

nature").      If Ms. Florentz' son does not prevail on his claims,
                                               -5-


then Ms. Florentz will not be allowed to relitigate defendant's

liability     to    her   son    in     order     to    recover        medical      expenses

incurred for her son.

       In other words, if Ms. Florentz were required to wait to

appeal the order dismissing her claims, a judgment entered for

defendant     with    respect     to     her      son's     claims         would   moot     Ms.

Florentz'     appeal.       On    the     other        hand,     if    Timothy      were     to

prevail,     then     Ms.     Florentz         could      still        appeal      and,      if

successful, the only issues on remand would be limited to her

entitlement to recover medical expenses.                       There would be no need

to    relitigate     defendant's        liability        for     Ms.       Florentz'   son's

physical injuries.

       For the reasons set out in Long and Florek, I would hold

that    no   risk    of   inconsistent          verdicts       exists        and   that     Ms.

Florentz     has     failed      to     demonstrate            the     existence       of     a

substantial      right    that    she    would       lose   in       the    absence    of    an

immediate appeal.         As noted in Florek, I believe that dismissal

of the appeal is "in accordance with the procedural rules which

are    designed      to     promote[]        judicial          economy        by    avoiding

fragmentary, premature and unnecessary appeals and permit[] the

trial court to fully and finally adjudicate all the claims among

the    parties     before   the       case   is      presented        to    the    appellate
                              -6-


court."   129 N.C. App. at 836, 501 S.E.2d at 109 (internal

quotation marks omitted).
