An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1392
                       NORTH CAROLINA COURT OF APPEALS
                               Filed:     1 July 2014
JAMES ARTHUR BRADLEY, III,
     Plaintiff

                                                    Nash County
      v.
                                                    No. 12 CVS 1638

JOHN DOE and CSX TRANSPORTATION, INC.,
     Defendants


      Appeal by plaintiff from order entered 5 September 2013 by

Judge Quentin T. Sumner in Nash County Superior Court.                    Heard in

the Court of Appeals 9 April 2014.


      The Moody Law Firm, Inc., by Claude W. Anderson, Jr., for
      Plaintiff.

      Poyner Spruill LLP, by Timothy W. Wilson and Karen H.
      Chapman, for unnamed Defendants North Carolina Farm Bureau
      Insurance Agency, Inc. and North Carolina Farm Bureau
      Mutual Insurance Company, Inc.


      ERVIN, Judge.


      Plaintiff James Arthur Bradley, III, appeals from an order

granting a motion for summary judgment filed by Defendant North

Carolina Farm Bureau Insurance Agency, Inc., and a motion to

dismiss filed by Defendant North Carolina Farm Bureau Mutual

Insurance Company, Inc., and denying Plaintiff’s motion to amend
                                            -2-
the summons issued and the complaint filed in this case so as to

correctly      name      the   carrier     that   provided      him   with    uninsured

motorists coverage.             On appeal, Plaintiff argues that the trial

court erred by denying his amendment motion and granting Farm

Bureau Mutual Insurance’s dismissal motion on the grounds that

the    naming       of   Farm     Bureau    Insurance      Agency     as     the    party

defendant      in    the   original       summons   and   complaint        reflected    a

simple misnomer that created no substantial risk of confusion

concerning the identity of the entity against which he intended

to    bring    suit.       After     careful      consideration       of   Plaintiff’s

challenges to the trial court’s order in light of the record and

the applicable law, we conclude that the trial court’s order

should be affirmed.

                                 I. Factual Background

                                 A. Substantive Facts

       On     21    November      2009,    Plaintiff,      an     employee     of    CSX

Transportation,          Inc.,    was   involved    in    an    automobile     accident

while driving a company vehicle in the course and scope of his

employment.         As a result of the fact that he left the scene, the

driver of the other vehicle involved in the accident was never

identified.         Plaintiff received injuries to his neck and back as

a result of the accident and missed time from work.                        At the time

of the accident, Plaintiff owned an automobile liability policy
                                         -3-
issued by Farm Bureau Mutual Insurance Company,1 which provided,

among other things, coverage in the event that Plaintiff was

injured     as    the   result    of    the     negligence       of   an   uninsured

motorist.

                              B. Procedural History

      On 11 October 2012, Plaintiff filed a complaint against the

unknown other driver, whom he named “John Doe,” and CSX.                        In his

complaint,       Plaintiff    alleged    that    “[t]his    Complaint      is    being

served on North Carolina Farm Bureau Insurance Agency, Inc.,

which provides uninsured motorist coverage to Plaintiff[.]”                          As

a result, Plaintiff obtained the issuance of a summons directed

to “John Doe c/o H. Julian Philpott, Registered Agent, North

Carolina Farm Bureau Insurance Agency, Inc.,” with this summons

and   complaint      having    been     served    upon     Mr.    Philpott      on   20

November 2012.2




      1
      Old Republic Insurance Company, which provided automobile
liability coverage to CSX and insured the CSX-owned vehicle that
Plaintiff was operating at the time of the accident, did not
provide uninsured motorists coverage that covered Plaintiff.
Although Plaintiff served a summons and a copy of the complaint
on Old Republic, he later voluntarily dismissed that claim and
the claim that he had asserted against CSX.
      2
      Mr. Philpott is the registered agent for both Farm Bureau
Insurance Agency and Farm Bureau Mutual Insurance. According to
the record, Farm Bureau Insurance Agency and Farm Bureau Mutual
Insurance operate from the same location and are represented by
the same legal counsel in this case.
                                        -4-
      On 19 December 2012, Farm Bureau Insurance Agency filed a

responsive pleading in which it asserted, among other things,

that “Farm Bureau Agency . . . did not issue any policy of

insurance to Plaintiff and is a separate and distinct entity

from North Carolina Farm Bureau Mutual Insurance Company, Inc.,”

so   that    “Farm    Bureau   Agency    has   no   liability   for    any   of

Plaintiff’s claims or causes of action[.]”                 On 29 July 2013,

Farm Bureau Insurance Agency filed a motion seeking the entry of

summary judgment in its favor.           On 19 December 2012, Farm Bureau

Mutual Insurance filed a responsive pleading in which it sought

to    have    Plaintiff’s      complaint       dismissed     for      lack   of

jurisdiction,        insufficient   process,    insufficient       service   of

process, and failure to state a claim upon which relief could be

granted.     On 12 August 2013, Plaintiff filed a motion to amend

the original summons and complaint in which he sought to remove

the references to Farm Bureau Insurance Agency and replace them

with references to Farm Bureau Mutual Insurance.3

      3
      According  to  Farm   Bureau  Mutual   Insurance’s  brief,
Plaintiff obtained the issuance of an alias and pluries summons
directed to “John Doe c/o North Carolina Farm Bureau Mutual Ins.
Co., Inc.,” on 3 January 2013.      Although no such alias and
pluries summons appears in the record on appeal, Plaintiff has
not made any contention to the effect that the issuance of any
such alias and pluries summons had the effect of keeping his
claim against Farm Bureau Mutual Insurance alive. As a result,
we need not address any issue relating to the validity of or
effect that should be given to this alias and pluries summons in
our opinion in this case. N.C. R. App. P. 28(a) (stating that
                                         -5-
       On   3   September      2013,    the     trial     court     held    a    hearing

concerning the issues raised by Farm Bureau Insurance Agency’s

summary      judgment      motion,      Farm      Bureau      Mutual       Insurance’s

dismissal       motion,   and    Plaintiff’s          amendment     motion.           On   5

September 2013, the trial court entered an order granting Farm

Bureau      Insurance     Agency’s     summary        judgment    motion        and    Farm

Bureau      Mutual      Insurance’s          dismissal     motion      and        denying

Plaintiff’s amendment motion.                Plaintiff noted an appeal to this

Court from the trial court’s order.

                        II. Substantive Legal Analysis

       In his brief, Plaintiff contends that the trial court erred

by granting Farm Bureau Mutual Insurance’s dismissal motion, and

denying his motion to amend the summons and complaint.                                More

specifically, Plaintiff contends that the naming of Farm Bureau

Insurance Agency, rather than Farm Bureau Mutual Insurance, in

the original summons and complaint constituted a simple misnomer

that the trial court should have allowed him to correct and that

there was no substantial possibility of any confusion concerning

the identity of the entity against whom he intended to assert

his uninsured motorists coverage claim given that the summons

and complaint were served on the registered agent of the party

that   he    intended     to    sue    and    given    that   the    intended         party

“[i]ssues not presented and discussed in a party’s brief are
deemed abandoned”).
                              -6-
defendant and the entity that he actually named in his complaint

and served with a summons shared the same address, registered

agent, and legal representation.4   We do not find this argument

persuasive.

                A. Plaintiff’s Amendment Motion

    “A motion to amend is addressed to the discretion of the

court, and its decision thereon is not subject to review except

in case of manifest abuse.”    Calloway v. Ford Motor Co., 281

N.C. 496, 501, 189 S.E.2d 484, 488 (1972).   Although “leave [to

amend] shall be freely given when justice so requires,” N.C.

Gen. Stat. § 1A-1, Rule 15(a), a trial court is entitled to deny

an amendment motion based upon “(a) undue delay, (b) bad faith,

(c) undue prejudice, (d) futility of amendment, and (e) repeated

failure to cure defects by previous amendments.”      Martin v.

Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632, 634 (1985) (citing

United Leasing Corp. v. Miller, 60 N.C. App. 40, 42-43, 298

S.E.2d 409, 411-12 (1982), disc. review denied, 308 N.C. 194,
    4
      Plaintiff has not argued in his brief that the trial court
erred by granting Farm Bureau Insurance Agency’s summary
judgment motion.     Aside from the fact that “[i]ssues not
presented in the appellant’s brief, or in support of which no
reason or argument is stated, will be taken as abandoned,” N.C.
R. App. P. 28(b)(6), the undisputed evidentiary materials
contained in the record establish that Farm Bureau Insurance
Agency “did not write or issue [Plaintiff’s] policy, sell that
policy to [Plaintiff], or have any other involvement whatsoever
with [Plaintiff] or his policy.” As a result, we have no basis
for disturbing the trial court’s decision to grant summary
judgment in favor of Farm Bureau Insurance Agency on appeal.
                                    -7-
302 S.E.2d 248 (1983); Bryant v. Nationwide Mut. Fire Ins. Co.,

67 N.C. App. 616, 618, 313 S.E.2d 803, 806 (1984), mod. on other

grounds, 313 N.C. 362, 329 S.E.2d 333 (1985)).          Thus, the trial

court would have had ample justification for denying Plaintiff’s

amendment motion in the event that allowing Plaintiff to proceed

against Farm Bureau Mutual Insurance would have been an exercise

in futility.

    According      to     well-established      North   Carolina    law,

Plaintiff’s personal injury claim, including any claim asserted

against   a   carrier   providing   uninsured   motorists   coverage,   is

subject to a three-year statute of limitations.         N.C. Gen. Stat.

§ 1-52(16); Thomas v. Washington, 136 N.C. App. 750, 754, 525

S.E.2d 839, 842 (stating that “this Court has recently made it

clear that the three-year tort statute of limitations, which

begins running on the date of an accident, also applies to the

uninsured motorist carrier”), disc. rev. denied, 352 N.C. 598,

545 S.E.2d 223 (2000).        As a result, since the accident took

place on 21 November 2009 and since Plaintiff made no attempt to

name Farm Bureau Mutual Insurance as the entity which provided

him with uninsured motorist coverage in his complaint or to

serve a complaint containing such allegations upon Farm Bureau

Mutual Insurance within three years after the date upon which he

was injured, the claim that Plaintiff wished to assert against
                                         -8-
Farm Bureau Mutual Insurance was subject to denial on futility-

related    grounds    unless     Plaintiff’s       proposed      amendment       to    the

summons    and   complaint       related    back    to     the   date     upon     which

Plaintiff filed the complaint and obtained the issuance of the

summons that he now wishes to amend.

      According to N.C. Gen. Stat. § 1A-1, Rule 15(c), “[a] claim

asserted    in   an    amended      pleading       is     deemed     to     have      been

interposed at the time the claim in the original pleading was

interposed, unless the original pleading does not give notice of

the   transactions,       occurrences,      or    series    of     transactions         or

occurrences, to be proved pursuant to the amended pleading.”

N.C. Gen. Stat. § 1A–1, Rule 15(c).

            When the amendment seeks to add a party-
            defendant or substitute a party-defendant to
            the suit, the required notice cannot occur.
            As a matter of course, the original claim
            cannot give notice of the transactions or
            occurrences to be proved in the amended
            pleading to a defendant who is not aware of
            his status as such when the original claim
            is filed.   We hold that this rule does not
            apply to the naming of a new party-defendant
            to the action. It is not authority for the
            relation back of a claim against a new
            party.

Crossman    v.   Moore,    341    N.C.     185,    187,    459     S.E.2d    715,      717

(1995).    Both this Court and the Supreme Court have interpreted

the decision in Crossman to “‘mean that [N.C. Gen. Stat. § 1A-

1,] Rule 15(c)[,] is not authority for the relation back of
                                                -9-
claims against a new party, but may allow for the relation back

of an amendment to correct a mere misnomer.’”                           Liss v. Seamark

Foods,   147      N.C.    App.      281,   283,       555   S.E.2d     365,     367   (2001)

(quoting Piland Hertford County Bd. Of Comm’rs, 141 N.C. App.

293, 299, 539 S.E.2d 669, 673 (2000)); see also State ex rel.

Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 438, 666

S.E.2d     107,     112       (2008)   (stating         that,    “in    Crossman[,]       we

explicitly barred the use of the relation-back doctrine to add a

new   party”).           As    a    result,      the    ultimate       issue    raised    by

Plaintiff’s challenge to the denial of his amendment motion is

whether the allowance of that motion would have resulted in the

correction     of    a    misnomer         or    the    addition       of   a   new    party

defendant.

      An issue indistinguishable from the one before us in this

case was addressed in Franklin v. Winn Dixie Raleigh, Inc., 117

N.C. App. 28, 450 S.E.2d 24 (1994), aff’d, 342 N.C. 404, 464

S.E.2d 46 (1995), in which the plaintiff sought to assert a

personal    injury        claim      after      falling     in    a    Winn-Dixie      store

located in Raleigh.                The plaintiff’s original complaint, which

was   filed    the       day    before       the      statute    of    limitations       ran,

designated “Winn Dixie Stores, Inc.” as the defendant.                                Id. at

38, 450 S.E.2d at 30.               Subsequently, the plaintiff learned that

the store in question was actually owned by “Winn-Dixie Raleigh,
                                            -10-
Inc.,” rather than “Winn-Dixie Stores, Inc.”                             Id. at 32, 450

S.E.2d at 27.          Upon making this discovery, the plaintiff sought

leave to amend his complaint                     so as     to designate “Winn-Dixie

Raleigh, Inc.,” rather than “Winn-Dixie Stores, Inc.,” as the

defendant, claiming that the proposed amendment was intended to

correct     a   simple        misnomer      in    the    manner    in     which    he     had

identified the defendant.                Id.      On appeal, however, this Court

determined that “Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh,

Inc.    .   .     .    ha[d]     been       and     were      separate    and     distinct

corporations at the time the cause of action accrued,” so that

the proposed amendment added a new party rather than simply

correcting a misnomer.                Id. at 34-35, 450 S.E.2d at 28.                    As a

result, given that “‘Winn Dixie Stores, Inc.,’ was the correct

name   of   the       wrong    corporate         party     defendant,     a   substantive

mistake     which      is     fatal    to   this     action,”     we     held     that    the

plaintiff’s amended complaint did not relate back to the filing

of   the    original        complaint,       that       the   applicable      statute      of

limitations barred the plaintiff’s claims, and that, “[q]uite

simply, plaintiffs [had] sued the wrong corporation.”                               Id. at

35, 450 S.E.2d at 28.

       In light of the reasoning that we utilized in Franklin, we

are compelled to reach the same result in the present case.                               The

effect of our decision in Franklin is the adoption of a rule
                                              -11-
that, if a litigant files suit against a corporate entity that

actually      exists,       an    attempt     to     amend    a    complaint         to    name    a

different      corporate         entity      as     the    defendant           constitutes        an

attempt to add a new defendant rather than the correction of a

misnomer.           As   the     undisputed         information          contained         in    Mr.

Philpott’s affidavit reflects, Farm Bureau Insurance Agency and

Farm    Bureau       Mutual       Insurance         both     exist       and    are       distinct

corporate      entities.              For    that     reason,        like      the    situation

addressed in Franklin, Plaintiff’s amendment motion amounted to

an effort to add a new party to this case rather than to correct

a misnomer, a fact that rendered the proposed amendment futile

and    fully        justified       the      trial     court’s        decision            to    deny

Plaintiff’s amendment motion.

       In   seeking      to      persuade     us     to    reach     a    contrary         result,

Plaintiff places principal reliance upon our decision in Liss,

in    which    we    held      that    the    plaintiff’s         motion        to    amend      his

complaint      to     name       “Seamark     Enterprises,           Inc.,”       rather        than

“Seamark Foods,” as the defendant amounted to the correction of

a simple misnomer, so that the amendment in question related

back to the filing of the original complaint.                                  Liss, 147 N.C.

App. at 286, 555 S.E.2d at 369.                       Unfortunately for Plaintiff,

the situation at issue in Liss, in which the plaintiff brought

suit against a defendant using an incorrect corporate name, and
                                               -12-
the situation at issue in this case, in which Plaintiff brought

suit against a legal entity that actually existed, are simply

not   the   same.          As    we    have     already       noted,       Plaintiff         simply

brought suit against the wrong corporation in this case, thereby

making “a substantive mistake which is fatal to [his] action.”

Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28.                                          Similarly,

Plaintiff’s reliance upon Pierce v. Johnson, 154 N.C. App. 34,

571 S.E.2d 661 (2002), a wrongful death action arising from a

motor vehicle accident in which we deemed the plaintiff’s error

in naming the decedent, rather than the personal representative,

as the defendant            in the summons and complaint                        constituted a

misnomer that could be corrected by means of an amendment that

related     back      to    the       date     of     the    filing        of       the    original

complaint, is equally unavailing.                     Unlike the situation at issue

in    Pierce,    in    which       the    person       intended       to       be    named     as   a

defendant    and      the       person    actually          named   as     a    defendant       and

served    with     the     summons       and    complaint       “[were]         connected       and

dependent legal entities,”                   Pierce, 154 N.C. App. at 40, 571

S.E.2d at 665, Plaintiff named and served a completely separate

and distinct legal entity in his original summons and complaint

in this case.              (R51)       As a result, neither Liss nor Pierce

support an award of appellate relief in this instance.
                                              -13-
       Aside from his reliance upon decisions such as Liss and

Pierce, Plaintiff argues that, even though he designated the

wrong party defendant in the summons and complaint, his error

did not create any substantial risk of confusion concerning the

identity of the party against whom he intended to bring suit

given     that      the   summons       and     complaint       were    served      on    the

registered agent of the entity that he intended to sue and that

both the named defendant and the entity that he intended to sue

had    the    same    address,      registered         agent,    and    legal     counsel.

However, as we stated in Wicker v. Holland, 128 N.C. App. 524,

527,    495    S.E.2d     398,    400    (1998),       the    fact     that   the    proper

defendant had notice of the action and would not be prejudiced

by the amendment is “irrelevant under Crossman’s analysis of the

limited reach of [N.C. Gen. Stat. § 1A-1,] Rule 15(c).”                                  As a

result, the fact that Farm Bureau Mutual Insurance may have had

actual notice of the claim that Plaintiff intended to assert

against it does not suffice to justify overturning the trial

court’s decision to deny his amendment motion.                          Thus, the trial

court did not err by denying Plaintiff’s motion to amend his

summons       and    complaint      so    as     to    name     Farm     Bureau      Mutual

Insurance,       rather    than    Farm       Bureau    Insurance       Agency,     as    the

carrier against whom Plaintiff intended to assert his uninsured

motorists claim.
                                         -14-
         B. Farm Bureau Mutual Insurance’s Dismissal Motion

    In his challenge to the allowance of Farm Bureau Mutual

Insurance’s dismissal motion, Plaintiff advances essentially the

same arguments that he advanced in the course of challenging the

denial of his motion to amend his summons and complaint.                       In

light of the fact that the claim that Plaintiff sought to assert

against Farm Bureau Mutual Insurance does not relate back to the

filing    of     the    original      complaint   and   was   time-barred     when

Plaintiff sought to advance it, we hold that the claim that

Plaintiff sought to assert against Farm Bureau Mutual Insurance

is barred by the applicable statute of limitations and that the

trial    court    did    not,   for    that   reason,   err   by   granting   Farm

Bureau Mutual Insurance’s dismissal motion.

                                   III. Conclusion

    Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s order have

merit.    As a result, the trial court’s order should, and hereby

does, remain undisturbed.

    AFFIRMED.

    Judges GEER and STEPHENS concur.

    Report per Rule 30(e).
