Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am.
| Citation | 245 N.C.App. 25,781 S.E.2d 840 |
| Decision Date | 19 January 2016 |
| Docket Number | No. COA15–539.,COA15–539. |
| Parties | GREENSHIELDS, INC., Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA and The St. Paul Travelers Companies, Inc., Defendants. |
| Court | Court of Appeal of North Carolina (US) |
Brent Adams & Associates, by Brenton D. Adams, for plaintiff.
Ellis & Winters LLP, by Jonathan A. Berkelhammer, Greensboro and Lenor Marquis Segal, Raleigh, for defendants.
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.
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 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 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 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.
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 Medina v. Div. of Soc. Servs., 165 N.C.App. 502, 505, 598 S.E.2d 707, 709 (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:
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 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 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 this finding of fact." The trial court further provided in paragraph nineteen:
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