An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1040
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    5 August 2014


AMANDA HOLT BROOKS,
     Plaintiff,

      v.                                      Harnett County
                                              No. 13 CVS 25
TIMOTHY EARL MARTIN and
HARNETT COUNTY,
     Defendants.


      Appeal by plaintiff from judgment entered 14 May 2013 by

Judge Douglas B. Sasser in Harnett County Superior Court.                     Heard

in the Court of Appeals 6 March 2014.


      Doster, Post, Silverman, Foushee & Post, P.A., by Norman C.
      Post, Jr., for plaintiff-appellant.

      Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T.
      Simpson and Natalia K. Isenberg, for defendants-appellees.


      DAVIS, Judge.


      Amanda Holt Brooks (“Plaintiff”) appeals from an order (1)

granting the motion to dismiss of Timothy Earl Martin (“Deputy

Martin”) and Harnett County (collectively “Defendants”) pursuant

to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure
                                        -2-


based on governmental immunity1; and (2) denying her motion for

leave to amend her complaint.               On appeal, she argues that the

trial court abused its discretion by denying her leave to amend

her    complaint     as   the    proposed      amendment   would     have    been

sufficient     to   overcome    the    governmental     immunity   defense    and

state a valid claim against Deputy Martin in his individual

capacity.     After careful review, we affirm.

                               Factual Background

       We    have   summarized        the   pertinent    facts     below    using

Plaintiff’s own statements from her complaint, which we treat as

true    in   reviewing    the    trial      court’s   order   dismissing     her

complaint under Rule 12(b)(6).                See, e.g., Stein v. Asheville

City Bd. of Educ., 360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006)

(“When reviewing a complaint dismissed under Rule 12(b)(6), we

treat a plaintiff’s factual allegations as true.”).

       On 29 January 2010, Plaintiff was driving her 2006 Ford

automobile in Lillington, North Carolina.               Plaintiff was stopped

at a red light at the intersection of U.S. Highway 421 and Main


1
  We note that the trial court’s order incorrectly refers to the
immunity at issue in this case as sovereign immunity rather than
governmental immunity.    When a county or county agency is the
named defendant, the immunity is appropriately identified as
governmental immunity.    Conversely, the doctrine of sovereign
immunity applies when suit is brought against the State or one
of its agencies.      However, the distinction is not outcome
determinative. See Craig ex rel. Craig v. New Hanover Cty. Bd.
of Educ., 363 N.C. 334, 336, 678 S.E.2d 351, 353 (2009); Meyer
v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997).
                                         -3-


Street when Deputy Martin,           a deputy sheriff employed by                        the

Harnett County Sheriff’s Office, negligently collided into the

rear of Plaintiff’s stopped vehicle while driving his marked law

enforcement vehicle.           As a result of the collision, Plaintiff

sustained serious bodily injury.

       On 8 January 2013, Plaintiff filed a personal injury action

against     Defendants    in    Harnett     County      Superior        Court.       On    7

February    2013,     Defendants    filed      a   joint       answer      containing      a

motion to dismiss pursuant to Rule 12(b)(6).                           On 15 February

2013, Plaintiff filed a motion for leave to amend her complaint.

The proposed amendment sought to add — among other things — an

allegation     that    Harnett     County      had      waived       its    governmental

immunity    through     the    purchase   of       liability      insurance        and    an

allegation making clear that Deputy Martin was being sued not

only   in    his    official    capacity       but      also    in    his    individual

capacity.

       On 8 April 2013, the motion to dismiss was heard by the

Honorable    Douglas     B.    Sasser.      On     14   May     2013,      Judge   Sasser

entered an order granting Defendants’ motion to dismiss with

prejudice and denying Plaintiff’s motion for leave to amend her

complaint.      Plaintiff filed a timely notice of appeal to this

Court.

                                    Analysis

I.     Claim Against Harnett County
                                            -4-


      It       is    well    settled     that     counties       are       protected    by

“governmental immunity when engaging in activity that is clearly

governmental in nature and not proprietary.                      One cannot recover

for personal injury against a government entity for negligent

acts of agents or servants while they are engaged in government

functions.           However,     the   county    may    waive       its    governmental

immunity by purchasing liability insurance for specific claim

amounts or certain actions.”                Wright v. Gaston Cty., 205 N.C.

App. 600, 603-04, 698 S.E.2d 83, 87 (2010) (internal citation

and brackets omitted).

      A waiver of governmental immunity must be expressly pled in

the complaint.          See Clark v. Burke Cty., 117 N.C. App. 85, 88,

450   S.E.2d        747,    748    (1994)   (“When      suing    a     county     or    its

officers, agents or employees, the complainant must allege this

waiver in order to recover. . . . [A]bsent an allegation to the

effect that immunity has been waived, the complaint fails to

state a cause of action.”).

      As Plaintiff acknowledges, her original complaint fails to

allege     a    waiver      of    Harnett   County’s      governmental          immunity.

However,       the     amended     complaint      she    sought        leave    to     file

contained allegations that Harnett County had, in fact, waived

its   governmental          immunity    through    the    purchase         of   liability

insurance.          Therefore, the question of whether Plaintiff’s claim

against Harnett County was properly dismissed hinges on whether
                                        -5-


the trial court abused its discretion in denying her motion to

amend.

            A motion to amend is left to the sound
            discretion of the trial court, and a denial
            of such motion is reviewable only upon a
            clear showing of abuse of discretion.    The
            trial court's ruling is to be accorded great
            deference and will be upset only upon a
            showing that it was so arbitrary that it
            could not have been the result of a reasoned
            decision.

Brown v. N.C. DMV, 155 N.C. App. 436, 438-39, 573 S.E.2d 246,

248    (2002)    (internal     citations   and   quotation     marks   omitted),

disc. review denied, 357 N.C. 62, 579 S.E.2d 271 (2003).

       We addressed a similar issue in Gunter v. Anders, 115 N.C.

App. 331, 444 S.E.2d 685 (1994), disc. review denied, 339 N.C.

611, 454 S.E.2d 250 (1995).              In Gunter, a high school student

was struck by an automobile and suffered severe injuries while

crossing a driveway on school grounds.                A negligence action was

brought against a number of defendants, including several school

employees and the Surry County Board of Education (“the Board”).

Id. at 332-33, 444 S.E.2d 686-87.             The school defendants filed a

Rule     12(b)(6)     motion     to   dismiss    on   the    ground    that   the

plaintiffs had failed to allege in their complaint a waiver of

the    Board’s      governmental      immunity   through     the   purchase    of

liability insurance.           Id.    The plaintiffs sought leave to amend

their complaint to allege such a waiver.                    Id. at 333-34, 444
                                        -6-


S.E.2d 687.        The trial court denied the plaintiffs’ motion and

granted the motion to dismiss.          Id.

      On appeal, the plaintiffs contended that the trial court’s

ruling    was   erroneous,      arguing    that    delay     by     itself    is    an

insufficient basis to justify the denial of a motion to amend

and   that   the     proposed   amendment       would   have       resulted    in   no

prejudice to the defendants, merely curing a “technical defect.”

On appeal, we affirmed the trial court’s ruling, holding that

the plaintiffs had failed to show an abuse of discretion.                           Id.

at 333-34, 444 S.E.2d at 687-88.

      We likewise hold in the present case that the trial court

did not abuse its discretion in denying Plaintiff’s motion.                         The

accident giving rise to this action took place on 29 January

2010.      Plaintiff’s      complaint     was   filed   on     8    January    2013.

Therefore, Plaintiff had almost three years to investigate the

factual and legal basis for filing a negligence action against

Defendants.        Moreover, after filing suit on 8 January 2013,

Plaintiff then had an additional 21 days to cure any defects in

her complaint by filing an amendment to her complaint prior to

the     expiration     of    the   applicable       three-year         statute      of

limitations set out in N.C. Gen. Stat. § 1-52(16).                            Because

Defendants did not file a responsive pleading until 7 February

2013, Rule 15(a) of the North Carolina Rules of Civil Procedure

would have entitled her to file such an amended complaint prior
                                           -7-


to the expiration of the limitations period as of right without

the   need     to     seek    either    leave     of   court   or    the     consent    of

Defendants.         See N.C.R. Civ. P. 15(a) (“A party may amend his

pleading       once    as    a   matter    of   course    at   any    time     before   a

responsive pleading is served . . . Otherwise a party may amend

his pleading only by leave of court or by written consent of the

adverse party.”).

      Instead, however, Plaintiff waited until 15 February 2013 —

17 days after the expiration of the limitations period — to seek

leave of court to amend her complaint.                    Plaintiff has failed to

offer any explanation as to why she was unable to ascertain

whether    a    good    faith      basis   existed       for   her   to    allege     that

Harnett County had waived its immunity through the purchase of

liability insurance before the statute of limitations expired.

      Under these circumstances, as in Gunter, we cannot say that

the trial court abused its discretion in denying her leave to

amend her complaint              to belatedly      allege a waiver of           Harnett

County’s       governmental         immunity.          Accordingly,          Plaintiff’s

argument on this issue is overruled.

II.   Claim Against Deputy Martin

      Plaintiff        also      argues    that    the    trial      court    erred     in

dismissing her claim against Deputy Martin, asserting that her

complaint should be construed as stating a claim against him in

his individual capacity.               However, because we conclude that her
                                            -8-


complaint       stated     only    a    claim   against       Deputy    Martin    in     his

official capacity, we reject Plaintiff’s argument.

    Plaintiff failed to indicate with specificity in either the

caption, prayer for relief, or body of her complaint whether she

was suing Deputy Martin in his official or individual capacity.

Our Supreme Court has recently held “that when the complaint

does not specify the capacity in which a public official is

being sued for actions taken in the course and scope of his

employment, we will presume that the public official is being

sued only in his official capacity.”                     White v. Trew, 366 N.C.

360, 360-61, 736 S.E.2d 166, 166-67 (2013).

    In White, a professor filed a libel action against the head

of his department, who had allegedly published false information

about him in his annual performance review.                           Id. at 361, 736

S.E.2d at 167.         The trial court denied the defendant’s motion to

dismiss    on    immunity        grounds,   and    the     defendant         appealed    the

trial court’s        ruling.           Id. at 362, 736 S.E.2d at 167.                     On

appeal, the plaintiff argued that he had intended to sue the

defendant       in   his       individual   —     rather      than     his    official     —

capacity.        Id. at 364, 736 S.E.2d at 169.                      Our Supreme Court

noted that “[t]he caption [of the complaint did] not include the

words     ‘in    his       official      capacity’       or    ‘in     his     individual

capacity,’ nor [did] the allegations ‘provide further evidence

of capacity.’”           Id.     (citation omitted).           The Court ruled that
                                    -9-


“[b]ecause the indicia of capacity . . . are absent from the

caption, allegations, and prayer for relief, we must presume

that defendant is being        sued in only his official capacity.

Consequently,        plaintiff's   claim   is     barred      by    sovereign

immunity.”     Id.

    The Supreme Court also addressed this issue in Mullis v.

Sechrest, 347 N.C. 548, 495 S.E.2d 721 (1998):

          It is a simple matter for attorneys to
          clarify the capacity in which a defendant is
          being sued.      Pleadings should indicate in
          the   caption    the    capacity      in   which   a
          plaintiff    intends     to    hold    a   defendant
          liable.    For example, including the words
          “in his official capacity” or “in his
          individual capacity” after a defendant's
          name obviously clarifies the defendant's
          status.   In addition, the allegations as to
          the extent of liability claimed should
          provide   further      evidence      of    capacity.
          Finally,    in     the    prayer      for    relief,
          plaintiffs should indicate whether they seek
          to   recover    damages     from    the    defendant
          individually     or    as    an    agent    of   the
          governmental entity.          These simple steps
          will   allow    future      litigants     to   avoid
          problems such as the one presented to us by
          this appeal.

Id. at 554, 495 S.E.2d at 724-25.

    In   the    present    case,   Plaintiff    points   to   the   following

italicized language in her complaint in an effort to show that

she did, in fact, specify that she was suing Deputy Martin in

his individual capacity:

          6. That at all times relevant herein,
          Defendant Martin, who was employed and on
                                         -10-


            duty with the Harnett County Sheriff’s
            Department, was acting individually and for
            and on behalf of Defendant Harnett County
            and during the course and scope of his
            employment/agency      relationship      with
            Defendant Harnett County; that all acts of
            Defendant Martin, negligent or otherwise,
            are imputed to Defendant Harnett County
            because   of  Defendants’   agency/employment
            relationship.

(Emphasis added.)

       Based on White and Mullis, we believe the brief reference

in paragraph 6 to Deputy Martin “acting individually” falls well

short of the specificity required to designate that he was being

sued in his individual capacity.                 Despite the insertion of the

words “acting individually” in this paragraph of the complaint,

the overall tenor of paragraph 6 suggests an official capacity

claim premised on the notion that the collision occurred while

he   was   on    duty   and     acting   in     the   course   and    scope     of    his

employment.

       Furthermore, the words “individual capacity” appear nowhere

in   the   complaint      and     the    word    “individually”        is     not    used

anywhere other than in paragraph 6.                   Moreover, we note that in

addition    to    the    fact    that    the     caption   does      not    explicitly

reference an individual capacity claim against Deputy Martin,

the prayer for relief likewise contains no express indication

that    damages    are    being     sought       from   Deputy       Martin    in     his

individual capacity.          Accordingly, we conclude that, taken as a
                                           -11-


whole,      Plaintiff’s        complaint     states      a    claim     against     Deputy

Martin solely in his official capacity.                      See White, 366 N.C. at

364,    736    S.E.2d     at    169   (holding    that       where    lack    of   clarity

exists over capacity in which defendant is being sued, “we must

presume that the defendant is being sued only in his official

capacity”).

       It     is   well   settled     that   an    official      capacity       complaint

against an officer is deemed to be a claim against the entity of

which the officer is employed.                See Moore v. City of Creedmoor,

345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (“[An] official-

capacity claim against [a] public officer is [a] claim against

the     office     held    by    that    person,        rather    than       against     the

particular individual who occupies that office at the time the

claim       [arises.]”).         Therefore,       for    the     same     reasons      that

governmental        immunity     bars    Plaintiff’s         claim    against      Harnett

County, her official capacity claim against Deputy Martin is

similarly foreclosed.

       Plaintiff also claims the trial court abused its discretion

in denying her motion for leave to file the proposed amendment

to    her    complaint     containing      more    specific       allegations       of    an

individual capacity claim against Deputy Martin.                         Once again, we

disagree.

       As discussed above, her motion to amend was filed after the

expiration of the statute of limitations.                        As explained below,
                                             -12-


even if the trial court had allowed her amendment containing

specific    allegations         of    an     individual     capacity      claim    against

Deputy Martin, the amendment would not have related back to the

date the original complaint was filed and thus would have been

time-barred due to the expiration of the three-year limitations

period on 29 January 2013.

    In White v. Crisp, 138 N.C. App. 516, 530 S.E.2d 87 (2000),

the plaintiffs sought to amend their personal injury complaint

against    the     defendant         after    the    statute      of    limitations     had

expired    so     as   to     clarify      that   the   action     was    being    brought

against     the    defendant         in     his     individual,        rather    than   his

official,       capacity.            This     Court     held      that    “the     amended

complaint, which named [the] defendant . . . in his individual

capacity, had the effect of adding a new party and [therefore]

does not relate back to the filing of the original complaint.”

Id. at 521, 530 S.E.2d at 90.                       We reasoned that the amended

complaint naming the officer in his individual capacity “had the

effect of adding a new party” and that Rule 15(c) permitted the

relation    back       only    of    new    claims    and   did    not    authorize     the

relation back of a claim being asserted against new parties.

Id. at 520-21, 530 S.E.2d at 89-90.                     Therefore, the trial court

did not abuse its discretion in denying Plaintiff’s motion for

leave to amend her complaint to state an individual capacity

claim against Deputy Martin.
                               -13-


                             Conclusion

    For the reasons stated above, the trial court’s 14 May 2013

order is affirmed.

    AFFIRMED.

    Judges CALABRIA and STROUD concur.

    Report per Rule 30(e).
