                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-539

                              Filed: 19 January 2016

Wake County, No. 05 CVS 11195

GREENSHIELDS, INC., Plaintiff,

             v.

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA and THE ST.
PAUL TRAVELERS COMPANIES, INC., Defendants.


      Appeal by plaintiff from Order entered 3 February 2015 by Judge Howard E.

Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 19

October 2015.


      BRENT ADAMS & ASSOCIATES, by Brenton D. Adams, for plaintiff.

      ELLIS & WINTERS LLP, by Jonathan A. Berkelhammer and Lenor Marquis
      Segal, for defendants.


      ELMORE, Judge.


      Greenshields, Inc. (plaintiff) appeals from the trial court’s order entered 3

February 2015 denying its motions to amend and granting Travelers Property

Casualty Company of America and The St. Paul Travelers Companies, Inc.’s

(defendants) motion to dismiss. After careful consideration, we affirm.

                                     I. Background

      On 17 August 2004, a fire occurred in the building housing plaintiff’s

restaurant. At that time, plaintiff was insured under a policy issued by St. Paul
              GREENSHIELDS, INC. V. TRAVELERS PROP. CAS. CO. OF AM.

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Travelers Companies, Inc., which is alleged to be the predecessor to Travelers

Property Casualty Company of America. Plaintiff submitted a claim to defendants

under the insurance policy, and between October 2004 and March 2005 defendants

paid plaintiff a total of $210,492.13 against the loss claim. Because the parties could

not agree on the total amount of the loss, they invoked the appraisal clause of the

insurance policy. Per the appraisal clause, each party selected an appraiser, and the

appraisers appointed retired Superior Court Judge Robert Farmer to serve as an

umpire for the dispute. The appraisal hearings were conducted in July, October, and

November 2005. Plaintiff also filed a complaint on 16 August 2005 in Wake County

Superior Court seeking to recover damages under the policy and for “a declaratory

judgment from this Court stating that it is entitled to have and recover the full

amount of its damages claim[.]”

      On 30 November 2005, the umpire entered an award of $854,000 in favor of

plaintiff. Defendants believed they were entitled to deduct from the appraisal award

the $210,492.13 that they previously paid, and they refused to pay the full $854,000.

On 14 March 2007, the parties filed a stipulation in superior court agreeing that the

issues involved in the lawsuit filed 16 August 2005 have been referred to appraisal

and until the appraisal process is complete, “there is no way to make a determination

as to whether there are any issues to be heard in the Superior Court Division of Wake

County[.]”   Subsequently, on 15 June 2007 the umpire issued a “Statement of



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Clarification,” and on 18 September 2007, he issued a “Corrected Award,” clarifying

that any previous payments were not to be applied as a credit to reduce the appraisal

award. Defendants still refused to pay the full $854,000.

      On 11 December 2007, the superior court entered an “Order of Dismissal,”

ordering “that this case be removed from the trial docket of active cases and placed

as a closed file without prejudice to previous orders herein, and without prejudice to

the entry of motions and orders in the future.” The following day, defendants filed

an answer and counterclaim to plaintiff’s complaint, alleging eight affirmative

defenses.

      In January 2009, plaintiff filed a voluntary petition for relief pursuant to

Chapter 7 of the Bankruptcy Code. On 13 February 2012, plaintiff filed an adversary

proceeding in bankruptcy court, and on 16 April 2012, defendants filed a motion to

dismiss pursuant to Rule 12(b)(6), alleging that plaintiff’s claims were time-barred

by the statute of limitations. The bankruptcy court entered an order on 23 July 2012

granting defendants’ motion to dismiss without prejudice “to allow the plaintiff an

opportunity to amend his complaint to include the underlying facts regarding the

alleged tolling agreement.”

      On 25 September 2013, plaintiff filed a motion to amend its complaint in Wake

County Superior Court, apparently pursuant to the bankruptcy court’s order. On 23

December 2014, defendants filed a motion to dismiss with prejudice in superior court



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pursuant to Rule 12(b)(1) and Rule 41(b). Subsequently, plaintiff filed an amended

motion to amend its complaint in superior court on 3 January 2015. The superior

court entered an order on 3 February 2015 denying plaintiff’s motions to amend its

complaint and granting defendants’ motion to dismiss with prejudice.          Plaintiff

appeals.

                                        II. Analysis

A. Findings of Fact

      Plaintiff asserts that the trial court made findings of fact that were not

supported by the evidence, namely portions of paragraphs fifteen, seventeen,

eighteen, nineteen, twenty, and twenty-one. Plaintiff argues that they should be

stricken and judgment should be reversed and remanded for a trial on the merits.

Defendants contend that the remaining unchallenged findings of fact independently

support dismissal, and plaintiff does not present any evidence to the contrary.

Instead, plaintiff “broadly and baldly” states that six of the numerous detailed

findings of fact are not supported by evidence.

      Where the superior court sits without a jury, the standard of review on appeal

is “whether there was competent evidence to support the trial court’s findings of fact

and whether its conclusions of law were proper in light of such facts. Findings of fact

by the trial court . . . are conclusive on appeal if there is evidence to support those

findings.” Medina v. Div. of Soc. Servs., 165 N.C. App. 502, 505, 598 S.E.2d 707, 709



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(2004) (citing Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845

(1992)). “Unchallenged findings of fact are presumed correct and are binding on

appeal.” In re Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (citations

omitted).

      Plaintiff claims the following portions of the trial court’s findings of fact are

not supported by the evidence:

             Paragraph fifteen: Plaintiff took no action to have its
             motion to amend heard in this court.

             Paragraph seventeen: The allegations contained in
             plaintiff’s proposed amended complaint were previously
             litigated between the same parties in bankruptcy court.

             Paragraph eighteen: There was an expectation on the part
             of the parties that a resolution would occur in a reasonably
             short period.

             Paragraph nineteen: Plaintiff has engaged in undue and
             unreasonable delay with respect to this matter.

             Paragraph twenty: Plaintiff’s delay in this court appears
             deliberate and tactical.

             Paragraph twenty-one: Defendants have been prejudiced
             by the plaintiff’s deliberate, tactical, undue and
             unreasonable delay.


      Regarding paragraph fifteen, plaintiff states, “This finding of fact is not

supported by any evidence before the court.” However, the trial court found that on

17 November 2014, defendants requested that plaintiff’s motion be placed on the 5



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January 2015 civil motions calendar. Plaintiff does not challenge this finding, and it

is presumed correct and binding on appeal. Moreover, the trial court’s order indicates

that it dismissed the claims not due to plaintiff’s failure to take action to have its

motion to amend heard, but because “[t]his case has languished in this Court since

2007 with no activity occurring.”

      Plaintiff argues that paragraph seventeen is not supported by the evidence

because the order from the bankruptcy court “states on its face that there was no

prejudice to the plaintiff’s [sic] filing an amended complaint and litigating the case

on its merits.” Plaintiff admits it did not file an amended complaint in bankruptcy

court. Instead, plaintiff attempted to file an amended complaint in state court over

one year after the bankruptcy court’s order. “ ‘Under the doctrine of res judicata, a

final judgment on the merits in a prior action in a court of competent jurisdiction

precludes a second suit involving the same claim between the same parties or those

in privity with them.’ ” Green v. Dixon, 137 N.C. App. 305, 307, 528 S.E.2d 51, 53

(quoting Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993)), aff’d,

352 N.C. 666, 535 S.E.2d 356 (2000). “[I]t is well settled in this State that ‘[a]

dismissal under Rule 12(b)(6) operates as an adjudication on the merits unless the

court specifies that the dismissal is without prejudice.’ ” Hill v. West, 189 N.C. App.

194, 198, 657 S.E.2d 698, 700 (2008) (quoting Clancy v. Onslow Cty., 151 N.C. App.

269, 272, 564 S.E.2d 920, 923 (2002)). Here, although the trial court continued in



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paragraph seventeen to find that plaintiff’s claims cannot be relitigated, the

bankruptcy court dismissed plaintiff’s claims without prejudice. Accordingly, there

was no final judgment on the merits. Even though the findings of fact in paragraph

seventeen do not support the trial court’s conclusion of law regarding res judicata,

the trial court’s alternative conclusion of law—that plaintiff engaged in undue and

unreasonable delay—supports its judgment.

      Regarding paragraph eighteen, plaintiff asserts, “There is absolutely no basis

or no evidence before the court which would support this conclusion.” However, the

trial court found, “The tolling agreement asserted by Plaintiff was of limited duration,

namely, ‘during th[e] period when we are attempting to resolve the issues,’ in light of

the expectation that a resolution would occur in a reasonably short period, not for the

five or six year period of hibernation which occurred in this case.” The evidence

supports this finding. Moreover, the trial court further stated, “The Court’s findings

with respect to the tolling agreement do not alter its decision on the motions to amend

and the motion to dismiss in that even considering the potential existence of a tolling

agreement, the Court would nevertheless deny Plaintiff’s Motion[s] . . . and grant

Defendants’ Motion.” Thus, the challenged finding had no impact on the court’s

conclusions of law or judgment.

      Plaintiff submits the following argument pertaining to paragraph nineteen:

“[P]laintiff respectfully contends that there is no evidence before the court to support



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this finding of fact.” The trial court further provided in paragraph nineteen:

              The incident underlying this litigation occurred August 17,
              2004, and an appraisal award was entered November 30,
              2005. Despite rejection by Defendants of a portion of the
              appraisal award shortly after it was entered, Plaintiff did
              not seek confirmation of the award in this Court. Further,
              this action was administratively closed December 11, 2007,
              and there are no facts indicating that Plaintiff engaged in
              any activity with respect to this matter from the time of
              this Court’s administrative closing of the file in December
              11, 2007, until February 13, 2012, the time the adversary
              proceeding was filed in bankruptcy court. Nor are there
              any facts in the record providing a justification for such
              delay. Plaintiff’s delay continued after the dismissal in
              bankruptcy court where Plaintiff never refiled in that court
              but waited over one year from that court’s dismissal to
              move to amend in this Court. Plaintiff’s delay continued
              by failing to calendar its motion to amend.

Plaintiff does not challenge these findings, which overwhelmingly support the trial

court’s conclusion that plaintiff engaged in undue and unreasonable delay.

       Regarding paragraph twenty, “plaintiff contends that there is no evidence

before the court which would justify this finding of fact.” To the contrary, the record

supports the trial court’s finding that plaintiff’s delay was tactical. Plaintiff filed suit

in state court, waited over six years to file suit in federal court, and then tried to

amend its federal claim in state court. Plaintiff does not challenge the remaining

findings in paragraph twenty, which support the court’s order.

       Lastly, with respect to paragraph twenty-one, plaintiff states, “There is no

basis in the evidence for any finding that the defendants were prejudiced in any way.



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The fact that the defendants have retained counsel ‘with respect to this matter’ is no

support for a finding that the defendants have been prejudiced.” The trial court

further found in paragraph twenty-one,

               Defendants’ counsel filed written motions and briefs in
               bankruptcy court. Defendants’ counsel also attended the
               hearing in bankruptcy court. In addition, counsel for
               Defendants had to attend this Court’s administrative
               session on October 17, 2014; thereafter calendared
               Plaintiff’s Motion to Amend; filed their own motion to
               dismiss; and then briefed and argued the motions to amend
               and motions to dismiss. Further, after almost ten years,
               Plaintiff is now seeking to change the character of the
               claims by seeking treble damages, punitive damages, and
               attorneys’ fees.

Again, plaintiff fails to challenge these findings of fact, which support the trial court’s

order.

         In sum, there was competent evidence to support the challenged findings of

fact, with the exception of paragraph seventeen. The remaining “[u]nchallenged

findings of fact are presumed correct and are binding on appeal.” In re Schiphof, 192

N.C. App. at 700, 666 S.E.2d at 500. The trial court’s conclusions of law were proper

in light of such facts and support its judgment.

B. Motions to Amend Complaint

         Plaintiff claims that the trial court abused its discretion in denying plaintiff’s

motions to amend “without any justifying reason,” and “defendant has shown no

prejudice from any delay.” Plaintiff argues that there was no undue delay and “the



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proposed amendments were more in the order of supplemental proceedings involving

facts which occurred after the Trial Court removed the case from the active trial

docket.”

      “A ruling on a motion to amend a pleading following the time allowed for

amending pleadings as a matter of course is left to the sound discretion of the trial

court.” Wall v. Fry, 162 N.C. App. 73, 80, 590 S.E.2d 283, 287 (2004) (citing Isenhour

v. Universal Underwriters Ins. Co., 345 N.C. 151, 154, 478 S.E.2d 197, 199 (1996)).

“Undue delay is a proper reason for denying a motion to amend a pleading.” Id. “A

judge is subject to reversal for abuse of discretion only upon a showing by a litigant

that the challenged actions are manifestly unsupported by reason.” Clark v. Clark,

301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980) (citing Martin v. Martin, 263 N.C. 86, 138

S.E. 2d 801 (1964)).

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

             (a) Amendments.—A party may amend his pleading once
             as a matter of course at any time before a responsive
             pleading is served or, if the pleading is one to which no
             responsive pleading is permitted and the action has not
             been placed upon the trial calendar, he may so amend it at
             any time within 30 days after it is served. Otherwise a
             party may amend his pleading only by leave of court or by
             written consent of the adverse party; and leave shall be
             freely given when justice so requires. A party shall plead
             in response to an amended pleading within 30 days after
             service of the amended pleading, unless the court
             otherwise orders.

N.C. Gen. Stat. § 1A-1, Rule 15(a) (2013).


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      Here, the trial court listed numerous reasons to support its decision to deny

plaintiff’s motions to amend. The trial court found that plaintiff filed the current

action on 16 August 2005 and did not file its motion to amend until 20 September

2013, over eight years later. It found that plaintiff “has engaged in undue and

unreasonable delay with respect to this matter.”          As previously discussed, the

abundant findings in paragraph nineteen support the trial court’s decision. The trial

court concluded as a matter of law the following:

             Whether to grant or deny a motion to amend is in the
             discretion of the trial court. Plaintiffs’ [sic] Motion to
             Amend and Amended Motion to Amend should be denied
             on the grounds that they are futile, the claims were
             litigated in the adversary proceeding and are barred by the
             doctrine of res judicata. Alternatively, Plaintiffs’ [sic]
             Motion to Amend and Amended Motion to Amend should
             be denied on the grounds that Plaintiff has engaged in
             undue and unreasonable delay. . . .

      Evidenced by the findings listed throughout this opinion, the challenged action

is not “manifestly unsupported by reason.” Clark, 301 N.C. at 129, 271 S.E.2d at 63.

Accordingly, the trial court did not abuse its discretion in denying plaintiff’s motions

to amend its complaint based on the court’s conclusion that plaintiff engaged in undue

and unreasonable delay. See Wall, 162 N.C. App. at 80, 590 S.E.2d at 287 (“Undue

delay is a proper reason for denying a motion to amend a pleading.”).

C. Rule 41(b)

      Next, plaintiff argues that the trial court erred in dismissing its case for failure


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to prosecute because “there is no evidence upon which a court could conclude that the

plaintiff either manifested an intent to thwart the progress of the action or to engage

in any delaying tactic.” Further, plaintiff states that “although the trial court stated

as a conclusion of law that sanctions short of dismissal would not suffice, it did not

make findings of fact concerning the reasons that sanctions short of dismissal with

prejudice would not suffice.”

      “The standard of review for a Rule 41(b) dismissal is ‘(1) whether the findings

of fact by the trial court are supported by competent evidence, and (2) whether the

findings of fact support the trial court’s conclusions of law and its judgment.’ ” Cohen

v. McLawhorn, 208 N.C. App. 492, 498, 704 S.E.2d 519, 524 (2010) (quoting Dean v.

Hill, 171 N.C. App. 479, 483, 615 S.E.2d 699, 701 (2005)). “Unchallenged findings of

fact are presumed to be supported by competent evidence, and are binding on appeal.”

Id. (quoting Justice for Animals, Inc. v. Lenoir Cty. SPCA, Inc., 168 N.C. App. 298,

305, 607 S.E.2d 317, 322 (2005)) (quotations omitted).

      “For failure of the plaintiff to prosecute . . . , a defendant may move for

dismissal of an action or of any claim therein against him.” N.C. Gen. Stat. § 1A-1,

Rule 41(b) (2013). This Court has stated that the trial court must address the

following three factors before dismissing for failure to prosecute under Rule 41(b): “(1)

whether the plaintiff acted in a manner which deliberately or unreasonably delayed

the matter; (2) the amount of prejudice, if any, to the defendant; and (3) the reason,



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if one exists, that sanctions short of dismissal would not suffice.” Wilder v. Wilder,

146 N.C. App. 574, 578, 553 S.E.2d 425, 428 (2001).

      Here, the trial court addressed all three factors.      It found in paragraph

nineteen that plaintiff “engaged in undue and unreasonable delay.” It stated there

are no facts indicating that plaintiff engaged in any activity with respect to this

matter from December 2007 until February 2012 and no justification for such delay.

Additionally, in paragraph twenty it found that plaintiff’s delay appeared “deliberate”

as plaintiff filed a complaint in state court, then chose to litigate in federal

bankruptcy court, and then returned to state court.

      The trial court addressed the second factor in paragraph twenty-one, stating,

“Defendants have been prejudiced by Plaintiff’s deliberate, tactical, undue, and

unreasonable delay.” The trial court found that plaintiff’s extra-contractual claims

arose over nine years ago, and defendants have had to retain counsel, file written

motions, attend hearings, and argue motions. Additionally, the trial court noted that

plaintiff is now seeking to change the character of the claims.

      Lastly, the trial court addressed the third factor in paragraph twenty-three,

stating, “The Court has considered whether a less severe sanction than dismissal

with prejudice is appropriate to serve the purpose of Rule 41(b), such as the exclusion

of evidence or other sanctions, but the Court is unable to find anything short of

dismissal with prejudice that would serve the purpose of Rule 41(b).”



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      In accordance with this Court’s decision in Wilder, the trial court properly

addressed each of the required factors. The findings of fact are supported by

competent evidence, which in turn support the trial court’s conclusions of law and

judgment. The trial court did not err in granting defendants’ motion to dismiss with

prejudice based on Rule 41(b).

D. Rule 12(b)(1)

      Plaintiff also argues, “To the extent that the trial court dismissed the plaintiff’s

claim based upon an allegation of lack of subject matter jurisdiction, that dismissal

is in error.” Here, the trial court did not grant defendants’ motion to dismiss based

on lack of subject matter jurisdiction. Instead, the trial court stated in its first

conclusion of law that it had subject matter jurisdiction, concluding that the 11

December 2007 Order “did not dismiss this action but simply administratively closed

the file and removed it from this Court’s active docket.”           Therefore, plaintiff’s

argument fails.

E. Statute of Limitations

      Lastly, plaintiff argues that to the extent the trial court determined in

conclusion of law number two that the statute of limitations barred plaintiff’s claim,

it was error. Plaintiff maintains that the tolling agreement the parties entered into

should be enforced. Here, the second conclusion of law addresses res judicata and

fails to mention “statute of limitations.”         Additionally, although the trial court



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discussed “passage of time” in the context of undue and unreasonable delay, it was

the bankruptcy court that concluded plaintiff’s claims were barred by the statute of

limitations. Thus, plaintiff’s argument is without merit.

                                  III. Conclusion

      The trial court did not err in granting defendants’ motion to dismiss with

prejudice or in denying plaintiff’s motions to amend its complaint.

      AFFIRMED.

      Chief Judge McGEE and Judge INMAN concur.




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