{ "id": 11436724, "name": "TERRY WAYNE DAWSON, D.D.S., Plaintiff v. ATLANTA DESIGN ASSOCIATES, INC., and ATLANTA DESIGN ASSOCIATES-N.C., INC., Defendants", "name_abbreviation": "Dawson v. Atlanta Design Associates, Inc.", "decision_date": "2001-07-17", "docket_number": "No. COA00-1031", "first_page": "716", "last_page": "721", "citations": [ { "type": "official", "cite": "144 N.C. App. 716" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "488 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "219" }, { "page": "220" } ], "opinion_index": 0 }, { "cite": "346 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139442 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "658" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0650-01" ] }, { "cite": "525 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "444", "parenthetical": "quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 658, 488 S.E.2d 215, 219 (1997)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155610 ], "year": 2000, "pin_cites": [ { "page": "335", "parenthetical": "quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 658, 488 S.E.2d 215, 219 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0331-01" ] }, { "cite": "236 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561797, 8561737, 8561773, 8561714, 8561820 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0159-04", "/nc/293/0159-02", "/nc/293/0159-03", "/nc/293/0159-01", "/nc/293/0159-05" ] }, { "cite": "234 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547627 ], "year": 1977, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0015-01" ] }, { "cite": "407 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554698, 2552970, 2554955, 2553111, 2554909 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0497-03", "/nc/329/0497-01", "/nc/329/0497-04", "/nc/329/0497-02", "/nc/329/0497-05" ] }, { "cite": "404 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519574 ], "year": 1991, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0077-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "299-300" } ], "opinion_index": 1 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "year": 1999, "pin_cites": [ { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "340", "parenthetical": "citations omitted" }, { "page": "343" } ], "opinion_index": 1 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "201", "parenthetical": "citations omitted" }, { "page": "207" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "511 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "132 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237793 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc-app/132/0341-01" ] }, { "cite": "265 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "46 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549625 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/46/0162-01" ] } ], "analysis": { "cardinality": 576, "char_count": 12127, "ocr_confidence": 0.745, "pagerank": { "raw": 2.1411338461345358e-07, "percentile": 0.7671790903639556 }, "sha256": "222093ab9297a286a5a94748b1418e95c69560bcbbe2ea64f0b40a789f5ac0f1", "simhash": "1:0d29636d747d54bc", "word_count": 1921 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "TERRY WAYNE DAWSON, D.D.S., Plaintiff v. ATLANTA DESIGN ASSOCIATES, INC., and ATLANTA DESIGN ASSOCIATES\u2014N.C., INC., Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nTerry Wayne Dawson, D.D.S. (Plaintiff) appeals an order filed 26 April 2000 requiring him to substitute Boykin-Dawson, L.L.C. as the party plaintiff in his action against Atlanta Design Associates, Inc. and Atlanta Design Associates \u2014 N.C., Inc. (Atlanta Design) (collectively, Defendants).\nThe record shows that on 16 May 1994, Plaintiff and Craig E. Boykin (Boykin) entered into a contract with Defendants pursuant to which Defendants were to design a dental facility in High Point. Boykin-Dawson, L.L.C., a limited liability company owned by Plaintiff, Plaintiff\u2019s spouse, Boykin, and Boykin\u2019s spouse, owned the property upon which the dental facility was designated to be constructed. Construction of the facility was completed in July 1996 and, subsequent to taking possession of the facility, Plaintiff \u201cfound numerous and significant deficiencies in both construction and design.\u201d On 28 December 1998, Plaintiff filed a complaint against Defendants alleging claims for breach of contract and professional negligence. Plaintiff\u2019s breach of contract claim alleged he suffered damages as a result of \u201cnumerous breaches\u201d by Defendants of their 16 May 1994 contract with Plaintiff. Additionally, Plaintiff\u2019s professional negligence claim alleged numerous \u201cunreasonable and negligent acts\u201d by Defendants in their performance of the 16 May 1994 contract. Plaintiff alleged the \u201cunreasonable and negligent acts . . . were the direct and proximate cause of damage to . . . Plaintiff.\u201d\nIn an order filed 23 July 1999, the trial court, upon Atlanta Design\u2019s motion, joined Boykin as a proper party pursuant to Rule 20 of the North Carolina Rules of Civil Procedure. Atlanta Design then filed a counterclaim against Boykin; however, Atlanta Design dismissed its counterclaim against Boykin on 28 January 2000.\nIn a motion dated 7 April 2000, Defendants moved to dismiss Plaintiff\u2019s claims against them pursuant to the following North Carolina Rules of Civil Procedure: 12(b)(6) (failure to state a claim upon which relief can be granted); 12(b)(7) (failure to join a necessary party); 17 (failure to join a real party in interest); and 19 (failure to join those united in interest as plaintiffs or defendants). In support of the motion to dismiss, Defendants alleged the following:\n2. Plaintiff is a member of Boykin-Dawson[, L.L.C.], a limited liability [company] which owns the land and building for which the design services of which [P]laintiff[] complains were provided.\n3. As a member of Boykin-Dawson, [L.L.C.], the owner of the land and building, [PJlaintiff lacks standing to maintain this action, individually, and [PJlaintiff\u2019s actions should therefore be dismissedf.]\nA hearing was held on Defendants\u2019 motion to dismiss on or about 24 April 2000. Subsequent to the hearing, the trial court found \u201cthat the damages alleged by [P]laintiff, if any, were suffered by Boykin-Dawson, L.L.C., rather than [PJlaintiff, individually.\u201d The trial court, therefore, ordered \u201cthat Boykin-Dawson, L.L.C., as the real party in interest, shall be substituted as the plaintiff . . . within ten (10) days of the date of this Order.\u201d Additionally, the trial court ordered \u201cthat [DJefendants\u2019 Motion to Dismiss is denied, without prejudice, and may be renewed if Boykin-Dawson, L.L.C., is not substituted as the party plaintiff as required by this Order.\u201d\nThe dispositive issue is whether Plaintiff alleged in his complaint injuries to Boykin-Dawson, L.L.C. and/or whether the record contains evidence Boykin-Dawson, L.L.C. suffered injuries as a result of the wrongs alleged in Plaintiffs complaint.\nInitially, we note the trial court\u2019s 26 April 2000 order does not dispose of this case but requires further action by the trial court; therefore, the 26 April 2000 order is interlocutory. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Thus, because Plaintiff\u2019s appeal is from an interlocutory order that does not affect a substantial right, the appeal is subject to dismissal N.C.G.S. \u00a7 1-277 (1999). Nevertheless, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we treat Plaintiffs appeal as a petition for writ certiorari and grant the petition. See Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177, disc. review denied, 329 N.C. 497, 407 S.E.2d 534 (1991).\nRule 17 of the North Carolina Rules of Civil Procedure provides that \u201c[e]very claim shall be prosecuted in the name of the real party in interest.\u201d N.C.G.S. \u00a7 1A-1, Rule 17 (1999). \u201cThe real party in interest is the party who by substantive law has the legal right to enforce the claim in question.\u201d Reliance Insurance Co. v. Walker, 33 N.C. App. 15, 19, 234 S.E.2d 206, 209, disc. review denied, 293 N.C. 159, 236 S.E.2d 704 (1977).\nGenerally, shareholders of a corporation or members of a company \u201c \u2018cannot pursue individual causes of action against third parties for wrongs or injuries to the [corporation or company] that result in the diminution or destruction of the value of their stock [or membership interest].\u2019 \u201d Energy Investors Fund, L.P. v. Metric Constuctors, Inc., 351 N.C. 331, 335, 525 S.E.2d 441, 444 (2000) (quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 658, 488 S.E.2d 215, 219 (1997)). \u201cThe only two exceptions to this rule are: (1) a plaintiff alleges an injury \u2018separate and distinct\u2019 to himself, or (2) the injuries arise out of a \u2018special duty\u2019 running from the alleged wrongdoer to the plaintiff.\u201d Id. A \u201cspecial duty\u201d exists when the alleged wrongdoer owed a duty \u201cdirectly to the shareholder [or member] as an individual.\u201d Barger, 346 N.C. at 659, 488 S.E.2d at 220. A \u201cspecial duty\u201d may \u201carise from contract.\u201d Id.\nIn this case, Plaintiff alleged claims against Defendants for breach of contract and professional negligence arising out of Plaintiff\u2019s 16 May 1994 contract with Defendants. Plaintiff\u2019s claims do not allege injuries to Boykin-Dawson, L.L.C., and the record does not contain any evidence that Boykin-Dawson, L.L.C. was injured as a result of the alleged breach of contract and/or negligence of Defendants. Thus, the general rule that a shareholder or member cannot pursue an individual cause of action against a third party for wrongs or injuries to the corporation or company is not applicable to Plaintiff\u2019s claims. Plaintiff, therefore, is a real party in interest under Rule 17 and is not precluded from bringing his claims against Defendants. Additionally, even assuming Boykin-Dawson, L.L.C. suffered injuries as a result of the wrongs alleged in Plaintiff\u2019s complaint, Plaintiff\u2019s individual contract with Defendants creates a \u201cspecial duty\u201d running from Defendants to Plaintiff. Plaintiff, therefore, has a legal right to bring the claims in question and is a real party in interest. The trial court, therefore, erred by ordering Plaintiff to substitute Boykin-Dawson, L.L.C. as the real party in interest. Accordingly, the trial court\u2019s 26 April 2000 order is reversed and this case is remanded.\nReversed and remanded.\nJudge BRYANT concurs.\nJudge TIMMONS-GOODSON dissents.\n. We acknowledge that the business entity at issue in Energy Investors was a partnership, while the business entity at issue in the case sub judice is a limited liability company. Neither party argues in its brief to this Court, and we see no reason why, the teaching of Energy Investors should not apply to limited liability companies.\n. The parties do not raise the issue of whether Boykin is a necessary party pursuant to Rule 19 of the North Carolina Rules of Civil Procedure. We, therefore, do not address this issue.", "type": "majority", "author": "GREENE, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nI disagree with the majority that this interlocutory appeal which affects no substantial right should be heard pursuant to the Court\u2019s discretion under Rule 2 of the North Carolina Rules of Appellate Procedure. I, therefore, respectfully dissent.\nThe order is interlocutory because it is not a final determination of all of the claims. Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240 (1980). Interlocutory orders are appealable only as allowed by North Carolina Rule of Civil Procedure 54(b) or North Carolina General Statutes sections 1-277 and 7A-27(d). See N.C. Gen. Stat. \u00a7 \u00a7 1A-1, Rule 54(b); 1-277; and 7A-27(d) (1999). Because the trial court\u2019s order does not contain a Rule 54(b) certification that there is no just reason for delay, plaintiff\u2019s right to an immediate appeal, if one exists, depends on whether the order affects a substantial right. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309 (1999). No substantial right has been identified by the majority. In fact, the majority concedes that \u201cPlaintiff\u2019s appeal is from an interlocutory order that does not affect a substantial right.\u201d \u201cIf an appealing party has no right of appeal, an appellate court. . . should dismiss the appeal.\u201d Waters v. Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978) (citations omitted).\nRule 2 of the North Carolina Rules of Appellate Procedure provides for the suspension of rules by an appellate court.\nTo prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.\nN.C. R. App. P. 2. The majority has pointed towards no manifest injustice that is prevented by hearing this appeal. The North Carolina Supreme Court has recently spoken to the limited nature of Rule 2 as follows:\nWhile it is certainly true that Rule 2 has been and may be so applied in the discretion of the Court, we reaffirm that Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances.\nSteingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999). I do not believe such public interest or manifest injustice is implicated in this case. Rather, the Court\u2019s ruling encourages the very kind of \u201cfragmentary, premature, and unnecessary appeals\u201d that the rules prohibiting the appeal of interlocutory orders are intended to prevent. Waters, 294 N.C. at 207, 240 S.E.2d at 343. Consequently, I would dismiss the appeal as interlocutory.\nBased on the foregoing, I respectfully dissent.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Wyatt Early Harris & Wheeler, L.L.P., by Lee M. Cecil, for plaintiff-appellant.", "Keziah, Gates & Samet, L.L.P., by Andrew S. Lasine; and Hotz & Associates, PC, by Walter H Hotz, for defendant-appellees." ], "corrections": "", "head_matter": "TERRY WAYNE DAWSON, D.D.S., Plaintiff v. ATLANTA DESIGN ASSOCIATES, INC., and ATLANTA DESIGN ASSOCIATES\u2014N.C., INC., Defendants\nNo. COA00-1031\n(Filed 17 July 2001)\nParties\u2014 real party in interest \u2014 breach of contract \u2014 professional negligence \u2014 special duty \u2014 construction of dental facility\nThe trial court erred in a professional negligence and breach of contract action concerning the construction and design of a dental facility by requiring plaintiff dentist to substitute his limited liability company as the party plaintiff in this action based on the company\u2019s ownership of the property upon which the dental facility was designated to be constructed, because: (1) the general rule that a shareholder or member cannot pursue an individual cause of action against a third party for wrongs or injuries to the corporation or company is not applicable to plaintiff\u2019s claims since the claims do not allege, and the record does not reveal, an injury to the limited liability company; (2) plaintiff is a real party in interest under N.C.G.S. \u00a7 1A-1, Rule 17; and (3) plaintiff\u2019s individual contract with defendants creates a special duty running from defendants to plaintiff.\nJudge Timmons-Goodson dissenting.\nAppeal by plaintiff from order filed 26 April 2000 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 5 June 2001.\nWyatt Early Harris & Wheeler, L.L.P., by Lee M. Cecil, for plaintiff-appellant.\nKeziah, Gates & Samet, L.L.P., by Andrew S. Lasine; and Hotz & Associates, PC, by Walter H Hotz, for defendant-appellees." }, "file_name": "0716-01", "first_page_order": 744, "last_page_order": 749 }