{ "id": 8411582, "name": "LYNETTA DRAUGHON, Personal Representative of the ESTATE OF MAX DRAUGHON, Deceased, Plaintiff v. HARNETT COUNTY BOARD OF EDUCATION and BARRY HONEYCUTT, JACKIE SAMUELS, STEPHEN AUSLEY, JASON SPELL, ANTHONY BARBOUR, PERRY SAENZ, DON WILSON, JR., RAYMOND McCALL, and BRIAN STRICKLAND, In their Individual and Official Capacities, Defendants", "name_abbreviation": "Draughon v. Harnett County Board of Education", "decision_date": "2004-10-05", "docket_number": "No. COA03-1325", "first_page": "464", "last_page": "471", "citations": [ { "type": "official", "cite": "166 N.C. App. 464" } ], "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": "582 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "158 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189113 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/158/0705-01" ] }, { "cite": "111 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "865-66" } ], "opinion_index": 0 }, { "cite": "251 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627114 ], "year": 1960, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0689-01" ] }, { "cite": "204 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555637 ], "year": 1974, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0287-01" ] }, { "cite": "567 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "411", "parenthetical": "citing Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974)" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248547 ], "year": 2002, "pin_cites": [ { "page": "26", "parenthetical": "citing Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0015-01" ] }, { "cite": "581 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188390 ], "year": 2003, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0526-01" ] }, { "cite": "378 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528090 ], "year": 1989, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0453-01" ] }, { "cite": "598 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "590" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995613 ], "year": 2004, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0001-01" ] }, { "cite": "582 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "72", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. 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App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186665 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/158/0208-01" ] } ], "analysis": { "cardinality": 744, "char_count": 17270, "ocr_confidence": 0.731, "pagerank": { "raw": 6.476687945999804e-08, "percentile": 0.39890935726368604 }, "sha256": "749867409d2bb330e005ca85db1a20ec3fa5512b0bc42f066abb2544f342dda1", "simhash": "1:cbabc22e162f2c67", "word_count": 2806 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "LYNETTA DRAUGHON, Personal Representative of the ESTATE OF MAX DRAUGHON, Deceased, Plaintiff v. HARNETT COUNTY BOARD OF EDUCATION and BARRY HONEYCUTT, JACKIE SAMUELS, STEPHEN AUSLEY, JASON SPELL, ANTHONY BARBOUR, PERRY SAENZ, DON WILSON, JR., RAYMOND McCALL, and BRIAN STRICKLAND, In their Individual and Official Capacities, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nPlaintiffs intestate was a football player at Triton High School in Harnett County, North Carolina. He collapsed during football practice on the morning of 8 August 1998 and died the following day at UNC Memorial Hospital from complications due to heatstroke. A more detailed discussion of the facts of the case can be found in this Court\u2019s earlier opinion at Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732 (2003), aff\u2019d, 358 N.C. 137, 591 S.E.2d 520 (2004). On 3 August 2000, plaintiff filed an action seeking monetary damages for the wrongful death of Max Draughon. On 6 July 2001, plaintiff voluntarily dismissed that complaint without prejudice. That same day, plaintiff refiled her claims in this action.\nOn 14 April 2003, both plaintiff and the Harnett County Board of Education (Board) appeared before the Superior Court of Harnett County and argued seven motions. Plaintiff appealed from and assigned as error four of the orders entered following the 14 April 2003 hearing. In the orders appealed from, the trial court: (1) denied plaintiffs motion to amend her complaint; (2) denied plaintiff\u2019s motion to continue the hearing of the Board\u2019s motions for summary judgment; and (3) dismissed plaintiff\u2019s complaint. Further discussion of the relevant facts will be contained in the analysis of plaintiff\u2019s assignments of error.\nIn plaintiff\u2019s first assignment of error she contends the trial court erred in denying her Motions to Continue/Reschedule Motion Hearing Date. There are two \u201cMotions to Continue/Reschedule Motion Hearing Date\u201d at issue in this appeal. Both relate to a 14 April 2003 hearing date, which date was set in open court on 17 February 2003, in the presence of both parties\u2019 counsel and without objection by plaintiff.\nIt is within the trial court\u2019s discretion to grant or deny a motion for a continuance, and that ruling will not be overturned absent a showing of abuse of discretion. State v. Williams, 355 N.C. 501, 540, 565 S.E.2d 609, 632 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Generally, continuances are not favored; May v. City of Durham, 136 N.C. App. 578, 581, 525 S.E.2d 223, 227 (2000); and therefore, the trial court should only grant a continuance where the moving party demonstrates \u201cgood cause ... and upon such terms and conditions as justice may require.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 40(b) (2003). The burden of proof rests on the moving party to demonstrate sufficient grounds justifying the continuance. May, 136 N.C. App. at 581, 525 S.E.2d at 227. When ruling on a motion to continue the trial judge must consider not only the grounds given for the motion, but \u201cwhether the moving party has acted with diligence and in good faith, and may consider facts of record as well as facts within his judicial knowledge.\u201d Id.\nOn 17 February 2003, plaintiffs counsel and the Board\u2019s counsel appeared in Harnett County Superior Court for hearings on, inter alia, defendants Honeycutt and the Board\u2019s motion to dismiss plaintiff\u2019s claims pursuant to Rule 41(b) of the Rules of Civil Procedure. Plaintiff objected to the court hearing the Board\u2019s motion to dismiss because plaintiff had not been given five days notice as required by Rule 6(d) of the Rules of Civil Procedure. The trial court sustained plaintiff\u2019s objection and set the matter for hearing on 14 April 2003. The trial court set this date after hearing from the parties and without any objections from any of the parties.\nThree days later, plaintiff filed her first motion to continue. In support of this motion, plaintiff asserted that the 14 April 2003 hearing should be continued because the case was scheduled for mediation on 13 May 2003. On 8 April 2003, plaintiff filed a second motion to continue. In this motion, plaintiff asserted, for the first time, conflicts of two of the four attorneys representing plaintiff, stating: (1) Keith Bishop was scheduled to begin a trial in Wake County on 14 April 2003, and was also scheduled to give an oral argument before the Court of Appeals on 15 April 2003; and (2) Linda Capobianco, one of plaintiff\u2019s attorneys of record, no longer practiced with the Florida law firm of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando.\nOn 14 April 2003, Alton Hale, an attorney licensed to practice in North Carolina, with the firm of Gary, Williams, et. al., appeared before the Superior Court of Harnett County on behalf of plaintiff. At no time during the hearing did Mr. Hale state he was unprepared to represent his client or was incapable of effectively representing his client.\nWe cannot say the court abused its discretion in denying plaintiffs motion for a continuance since the record reveals that: (1) Mr. Hale, one of the attorneys who had participated in the case, appeared in court on 14 April 2003 on plaintiffs behalf; (2) Mr. Hale acknowledged in open court the motion for a continuance was moot; and (3) five of the motions to be heard were plaintiffs own motions which she had noticed for hearing that day. This assignment of error is without merit.\nIn plaintiffs second assignment of error, she contends the trial court erred when it denied her motion to amend her complaint to \u201cclarify\u201d her theories of liability asserted against the Board.\nLeave of court to amend a pleading is left within the trial court\u2019s discretion, and such decision is not reversible absent a showing of abuse of discretion. Isenhour v. Universal Underwriters Ins. Co., 345 N.C. 151, 154, 478 S.E.2d 197, 199 (1996). Plaintiff contends the trial court did not state a reason justifying its refusal to grant plaintiff leave to amend and that this omission is essentially a per se abuse of discretion. Where it is unclear as to why the trial court denied leave to amend, this Court may consider any apparent reasons for the denial. Kinnard v. Mecklenburg Fair, 46 N.C. App. 725, 727, 266 S.E.2d 14, 16, aff\u2019d, 301 N.C. 522, 271 S.E.2d 909 (1980).\nA motion to amend may be denied for \u201c \u2018(a) undue delay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments.\u2019 \u201d Carter v. Rockingham Cty. Bd. of Educ., 158 N.C. App. 687, 690, 582 S.E.2d 69, 72 (2003) (citations omitted). In deciding if there was undue delay, the trial court may consider the relative timing of the proposed amendment in relation to the progress of the lawsuit. Stetser v. TAP Pharm. Prods., 165 N.C. App. 1, 31, 598 S.E.2d 570, 590 (2004). Plaintiff did not file her motion to amend her complaint until 6 April 2003. This was four years and eight months after the death of plaintiff\u2019s intestate, two years and eight months after the original complaint was filed, one year and eleven months after the second complaint was filed, and less than one week before the scheduled hearing on the Board\u2019s motions to dismiss and for summary judgment. Based on these circumstances alone, we cannot say the trial judge abused his discretion in denying the motion based on undue delay. See Brown v. Lyons, 93 N.C. App. 453, 456, 378 S.E.2d 243, 245 (1989); Kinnard, 46 N.C. App. at 727, 266 S.E.2d at 16.\nFurther, in the trial court\u2019s order denying plaintiff\u2019s motion to amend, it states: \u201c[t]he Court finds and concludes that the only claims stated in Plaintiff\u2019s Complaint against the Defendant Harnett County Board of Education are claims based upon alleged vicarious liability.\u201d In plaintiff\u2019s brief, she asserts that her complaint clearly contains direct claims of negligence against the Board and that she \u201cfiled her motion to amend her complaint to clarify her theories of liability because defendants, in filing their motion for summary judgment, took the opportunistic position that Plaintiff\u2019s complaint alleged only a vicarious liability theory of negligence liability.\u201d Nowhere in plaintiff\u2019s complaint, her motion to amend, or in her brief to this court, is it clear what theory of direct liability plaintiff is asserting against the Board. Of the alleged wrongful acts done by \u201cthe Defendants,\u201d none specifically address any conduct of the Board. The complaint contains several allegations of conduct by \u201cthe Defendants\u201d without specifying which defendant committed the acts. Nowhere does plaintiff assert that the Board had a policy in effect regarding football practice or that the Board knew the coaches were doing something wrong or failed to adequately supervise the coaches. Instead, plaintiff attempts to take a line in her complaint which states: \u201cthe several defendants\u201d \u201cfail[ed] to take adequate precautions to prevent an occurrence of this nature[,]\u201d and tries to convert this language, which referred to the coaches at practice that day, and twist it to say the Board should have taken \u201cadequate precautions\u201d to supervise the coaches. Further, plaintiff\u2019s motion to amend the complaint. contained no additional factual allegations demonstrating direct liability of the Board, but instead attempted to spin the existing factual allegations to state a direct theory against the Board which was not in the original complaint.\nThroughout the course of this litigation, plaintiff has consistently stated that her claims against the Board were based solely on vicarious liability and depended on the allegations of negligence asserted against the other defendants. In her complaint, plaintiff states \u201cHarnett County Schools, as principal, is liable for the acts and omissions of its agents and employees in their official capacities, . ...\u201d On 12 April 2002, plaintiff\u2019s counsel argued to the trial court at a motions hearing that:\nHarnett County Board of Education\u2019s exposure in this case is based on vicarious liability theory. In other words, we have not alleged that Harnett County Board of Education directly went out off to any field and did anything.\nAnd their liability depends on the allegations of every one of the defendants we\u2019ve brought into the case ....\nSimilarly, in a brief filed before this Court on 3 September 2002, in this same case, (COA02-646), plaintiffs counsel stated: \u201cPlaintiff alleged that the institutional defendant\u2019s liability depended on the individual defendants\u2019 joint and several liabilities.\u201d In plaintiffs petition for writ of certiorari to this Court in the above referenced case, she asserted that she \u201cfiled her complaint against the individual defendants alleging direct negligence, and against the institutional defendant, Harnett County School Board, alleging vicarious negligence on a Respondeat Superior theory.\u201d These admissions by plaintiff are binding and she cannot now assert in good faith that she has maintained a direct cause of action against the Board since the initiation of this cause of action.\nWe hold that the trial court did not abuse its discretion in denying plaintiff\u2019s motion to amend based upon both undue delay and bad faith. This assignment of error is without merit.\nIn plaintiff\u2019s fourth assignment of error she contends the trial court erred in granting the Board\u2019s motion for summary judgment.\nSummary judgment is proper \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003). The movant bears the ultimate burden of demonstrating the absence of any triable issue of fact. Kennedy v. Haywood Cty., 158 N.C. App. 526, 527, 581 S.E.2d 119, 120 (2003). Here, the trial court granted summary judgment in favor of the Board stating:\nThere is no genuine issue as to any material fact, and Defendant Harnett County Board of Education is entitled to judgment as a matter of law on the limited ground that plaintiff\u2019s Complaint against it, which alleges liability in the Harnett County Board of Education based upon vicarious liability theory, is precluded as a matter of law now that each of the individually-named defendants has been dismissed on the merits.\nPlaintiff only asserted claims against the Board based upon alleged vicarious liability. The general rule in North Carolina is that judgment on the merits in favor of the agent precludes any action against the principal where, as here, the principal\u2019s liability is purely derivative. Guthrie v. Conroy, 152 N.C. App. 15, 26, 567 S.E.2d 403, 411 (2002) (citing Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974)). See also Taylor v. Hatchery, Inc., 251 N.C. 689, 691, 111 S.E.2d 864, 865-66 (1960).\nEach of the claims against the individually named defendants in the action have been dismissed on the merits. On 17 December 2001, the trial court granted summary judgment in favor of four of the defendants \u2014 Stephen Ausley, Raymond McCall, Jason Spell and Don Wilson, Jr., which was affirmed in Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732 (2003), aff'd, 358 N.C. 137, 591 S.E.2d 520 (2004). On 4 March 2002, the trial court granted summary judgment in favor of defendant Brian Strickland, which this Court affirmed in Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 582 S.E.2d 343 (2003), aff'd, 358 N.C. 137, 591 S.E.2d 520 (2004). On 20 November 2002, the trial court entered an order dismissing three additional defendants from this action \u2014 Jackie Samuels, Anthony Barbour, and Perry Saenz. The trial court dismissed these defendants pursuant to Rule 37(d) of the North Carolina Rules of Civil Procedure as sanctions for plaintiffs failure to serve answers or objections to interrogatories or requests for production of documents properly served by defendants. Plaintiff failed to perfect her appeal as to these three defendants, and the appeal was subsequently dismissed on 21 July 2003. Plaintiff filed a petition for writ of certiorari requesting this Court hear the appeal. This Court denied the petition on 24 October 2004. On 11 March 2003, the trial court dismissed the claims against defendant Barry Honeycutt based upon the statute of limitations. This Court affirmed the lower court\u2019s ruling in Draughon v. Harnett Cty. Bd. of Educ., -N.C. App. -, - S.E.2d - (2004) (COA03-1324, filed 5 October 2004). The trial court properly dismissed plaintiff\u2019s claim against the Board and entered summary judgment in its favor since all of the individual defendants had been dismissed from the action. This assignment of error is without merit.\nSince we have affirmed the trial court\u2019s entry of summary judgment dismissing plaintiff\u2019s claim against the Board, it is unnecessary to address plaintiff\u2019s third assignment of error.\nFor the reasons discussed herein, we affirm the rulings of the trial court.\nAFFIRMED.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Keith A. Bishop, PLLC, by Keith A. Bishop, and Gary, Williams, Parenti et al., by Alton C. Hale Jr., for plaintiff-appellant.", "Tharrington & Smith, L.L.P., by Jonathan Blumberg and Lisa Lukasik, Bailey & Dixon, LLP by Gary Parsons & Warren Savage, and Granfill, Sumner & Hartzog, LLP by Patricia L. Holland, for defendant-appellee Harnett County Board of Education." ], "corrections": "", "head_matter": "LYNETTA DRAUGHON, Personal Representative of the ESTATE OF MAX DRAUGHON, Deceased, Plaintiff v. HARNETT COUNTY BOARD OF EDUCATION and BARRY HONEYCUTT, JACKIE SAMUELS, STEPHEN AUSLEY, JASON SPELL, ANTHONY BARBOUR, PERRY SAENZ, DON WILSON, JR., RAYMOND McCALL, and BRIAN STRICKLAND, In their Individual and Official Capacities, Defendants\nNo. COA03-1325\n(Filed 5 October 2004)\n1. Trials\u2014 motion for continuance denied \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by denying plaintiffs motion to continue a motions hearing where one of the attorneys who represented plaintiff appeared, that attorney acknowledged that the motion for a continuance was moot, five of the motions to be heard were plaintiff\u2019s, and plaintiff had noticed those motions for hearing that day.\n2. Pleadings\u2014 motion to amend \u2014 denied\u2014undue delay and bad faith\nThe trial court did not abuse its discretion by denying plaintiff\u2019s motion to amend her complaint for undue delay and bad faith. Plaintiff filed the motion to amend her complaint four years and eight months after the death of her intestate (a high school football player who died from heatstroke), two years and eight months after the original complaint was filed, one year and eleven months after the second complaint was filed, and less than one week before the scheduled hearing on defendant school board\u2019s motions to dismiss and for summary judgment. Furthermore, plaintiff\u2019s motion to amend contained no additional factual allegations demonstrating direct liability of the board, but instead attempted to spin the existing factual allegations to state a direct theory against the board which was not in the original complaint.\n3. Negligence\u2014 vicarious liability \u2014 individual claims dismissed\nThe trial court did not err by granting summary judgment for a school board in an action arising from the death of a high school football player where the claims against the board were based on vicarious liability and the underlying individual claims were dismissed.\nAppeal by plaintiff from orders entered 20 May 2003 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 26 August 2004.\nKeith A. Bishop, PLLC, by Keith A. Bishop, and Gary, Williams, Parenti et al., by Alton C. Hale Jr., for plaintiff-appellant.\nTharrington & Smith, L.L.P., by Jonathan Blumberg and Lisa Lukasik, Bailey & Dixon, LLP by Gary Parsons & Warren Savage, and Granfill, Sumner & Hartzog, LLP by Patricia L. Holland, for defendant-appellee Harnett County Board of Education." }, "file_name": "0464-01", "first_page_order": 494, "last_page_order": 501 }