{ "id": 8187107, "name": "STATE OF NORTH CAROLINA, ex rel. ROY COOPER, Attorney General of North Carolina, Plaintiff v. RIDGEWAY BRANDS MANUFACTURING, LLC, a North Carolina corporation; RIDGEWAY BRANDS, INC.; JAMES C. HEFLIN; FRED A. EDWARDS; and CARL B. WHITE, Defendants", "name_abbreviation": "State ex rel. Cooper v. Ridgeway Brands Manufacturing, LLC", "decision_date": "2007-07-17", "docket_number": "No. COA06-422", "first_page": "613", "last_page": "628", "citations": [ { "type": "official", "cite": "184 N.C. App. 613" } ], "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": "496 F.2d 391", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 180512 ], "year": 1974, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/f2d/496/0391-01" ] }, { "cite": "775 F.2d 1240", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 41926 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "1251-52" }, { "page": "1252" }, { "page": "1252" } ], "opinion_index": 0, "case_paths": [ "/f2d/775/1240-01" ] }, { "cite": "385 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520634 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0124-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "403 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "593" }, { "page": "493" }, { "page": "493" } ], "opinion_index": 0 }, { "cite": "328 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538399 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0578-01" ] }, { "cite": "464 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917470 ], "year": 1995, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0650-01" ] }, { "cite": "329 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "330" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "313 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720084 ], "year": 1985, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0450-01" ] }, { "cite": "160 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "273 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575046 ], "year": 1968, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0253-01" ] }, { "cite": "561 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "908", "parenthetical": "citation omitted" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131964 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "790", "parenthetical": "citation omitted" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0787-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "355 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "193", "parenthetical": "holding that N.C. Gen. Stat. \u00a7 1-54(2) was inapplicable to an action not constituting a \"penalty or forfeiture\" and the purpose of which was not \"punitive\"" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169933 ], "year": 1987, "pin_cites": [ { "page": "368", "parenthetical": "holding that N.C. Gen. Stat. \u00a7 1-54(2) was inapplicable to an action not constituting a \"penalty or forfeiture\" and the purpose of which was not \"punitive\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0362-01" ] }, { "cite": "459 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "717" }, { "page": "717" } ], "opinion_index": 0 }, { "cite": "341 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793074 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0185-01" ] }, { "cite": "111 F. Supp. 150", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 303259 ], "year": 1953, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/f-supp/111/0150-01" ] }, { "cite": "245 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551649 ], "year": 1978, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0210-01" ] }, { "cite": "450 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523935 ], "year": 1994, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0028-01" ] }, { "cite": "554 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0 }, { "cite": "354 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138533 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "332" }, { "page": "332" }, { "page": "334-5" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0327-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(2)" }, { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "566 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "821", "parenthetical": "quotation omitted" }, { "page": "821" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081598 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "606", "parenthetical": "quotation omitted" }, { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0603-01" ] }, { "cite": "553 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "91", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357693 ], "year": 2001, "pin_cites": [ { "page": "373", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0370-01" ] }, { "cite": "354 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169853 ], "year": 1987, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0292-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "582 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189113 ], "year": 2003, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0705-01" ] }, { "cite": "333 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "237" } ], "opinion_index": 0 }, { "cite": "314 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690671 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0267-01" ] }, { "cite": "761 F.2d 162", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 29505 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/f2d/761/0162-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 66-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 21, "pin_cites": [ { "page": "(b)" }, { "page": "(c)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "628 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635496, 12635497, 12635495 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/se2d/628/0249-02", "/se2d/628/0249-03", "/se2d/628/0249-01" ] }, { "cite": "360 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798496, 3793891, 3791911, 3794600, 3787593, 3797322, 3793706, 3786605, 3796634 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/nc/360/0289-08", "/nc/360/0289-02", "/nc/360/0289-06", "/nc/360/0289-01", "/nc/360/0289-04", "/nc/360/0289-07", "/nc/360/0289-03", "/nc/360/0289-05", "/nc/360/0289-09" ] }, { "cite": "608 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "800-01" }, { "page": "801", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 1 }, { "cite": "168 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471741 ], "year": 2005, "pin_cites": [ { "page": "690" } ], "opinion_index": 1, "case_paths": [ "/nc-app/168/0687-01" ] }, { "cite": "243 F. Supp. 2d 472", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9370640 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "476-77" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/243/0472-01" ] }, { "cite": "469 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 855130 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "717" }, { "parenthetical": "\"As a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed.\"" } ], "opinion_index": 1, "case_paths": [ "/ga-app/220/0572-01" ] }, { "cite": "341 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "year": 1995, "pin_cites": [ { "page": "187" } ], "opinion_index": 1 }, { "cite": "160 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "44", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "273 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575046 ], "year": 1968, "pin_cites": [ { "page": "260", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/273/0253-01" ] } ], "analysis": { "cardinality": 1264, "char_count": 37162, "ocr_confidence": 0.756, "pagerank": { "raw": 1.3867693303928919e-07, "percentile": 0.6416005334673952 }, "sha256": "aaacdaade737d15d1227b3722aed03049c2851b1b8cd391a2e375c6223c03af8", "simhash": "1:8a281411f02f14f8", "word_count": 6014 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge WYNN concurring in part and dissenting in part." ], "parties": [ "STATE OF NORTH CAROLINA, ex rel. ROY COOPER, Attorney General of North Carolina, Plaintiff v. RIDGEWAY BRANDS MANUFACTURING, LLC, a North Carolina corporation; RIDGEWAY BRANDS, INC.; JAMES C. HEFLIN; FRED A. EDWARDS; and CARL B. WHITE, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhen the dismissal of a suit affects the plaintiffs right to avoid two trials on the same issue, the plaintiffs appeal is not interlocutory. When a plaintiff fails to amend his complaint to add a party defendant until after the expiration of the applicable statute of limitations as to that defendant, the claim cannot relate back to circumvent the statute of limitations. When the allegations in a plaintiffs complaint, taken as true, are sufficient to state a claim for piercing the corporate veil, the trial court\u2019s grant of defendant\u2019s motion to dismiss is improper. Further, when the application of both N.C. Gen. Stat. \u00a7 75-1.1 and N.C. Gen. Stat. \u00a7 66-291 creates overlapping supervision, enforcement and liability in a particular area of law, the rationale of Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985), and Skinner v. E. F. Hutton & Co., 314 N.C. 267, 333 S.E.2d 236 (1985), precludes the application of N.C. Gen. Stat. \u00a7 75-1.1 to cases of noncompliance with N.C. Gen. Stat. \u00a7 66-291. Finally, when the allegations in a plaintiff\u2019s complaint, taken as true, are sufficient to state a claim for civil conspiracy, including the allegation that a corporate agent has an independent personal stake in achieving a corporation\u2019s illegal objective, the trial court\u2019s grant of defendant\u2019s motion to dismiss is improper.\nFactual Background\nIn November 1998, the State of North Carolina (\u201cplaintiff\u2019) entered into a Master Settlement Agreement (\u201cMSA\u201d) with major domestic cigarette manufacturers. Cigarette manufacturers in North Carolina were required to either sign the MSA or comply with the provisions of N.C. Gen. Stat. \u00a7 66-291, which obligated cigarette manufacturers to deposit funds into a qualified escrow account for sales of cigarettes in North Carolina.\nBecause the trial court dismissed the claims against James C. Heflin (\u201cHeflin\u201d) under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), we treat the allegations in the complaint as true. The complaint sets forth the following allegations.\nIn early 2001, Heflin formed the corporation later named Ridgeway Brands Manufacturing, LLC (\u201cRidgeway\u201d). Heflin was an owner and member-manager of Ridgeway, which was located in Stantonsburg, North Carolina, and sold tobacco products largely to Ridgeway Brands, Inc. (\u201cBrands\u201d). Brands was a Kentucky corporation, distributing tobacco products for sale in North Carolina and other states. Fred A. Edwards (\u201cEdwards\u201d) and Carl B. White (\u201cWhite\u201d) were owners and active managers of Brands. Heflin, Edwards and White \u201cdominated and controlled [Ridgeway] to further [their] own objectives and those of [Brands][.]\u201d\nIn late 2002, Heflin, Edwards and White hired Lee Welchons (\u201cWelchons\u201d) as the general manager of Ridgeway. Welchons had extensive experience in tobacco manufacturing and was familiar with both the payment obligations of manufacturers pursuant to the MSA and North Carolina escrow statutes.\nIn early 2003, Heflin, Edwards and White announced the merger of Ridgeway and Brands. The merger, although never formally completed, was accomplished defacto between Ridgeway and Brands. In early 2003, Brands became the sole purchaser of cigarettes manufactured by Ridgeway, and Ridgeway became \u201ca corporation without a separate mind, will or existence of its own[,] . . . operated as a mere shell to perform for the benefit of [Heflin] . . . Ridgeway [Brands], Edwards [and] White.\u201d\nHeflin, Edwards and White exhibited control over Ridgeway in the following ways: (1) establishing the pricing structure of cigarettes that Ridgeway sold to Brands; (2) ignoring Welchon\u2019s advice that the pricing structure was \u201cgrossly inadequate\u201d to satisfy North Carolina\u2019s escrow statute requirements; (3) on one occasion, forbidding Welchons to shut down a cigarette line for repairs; (4) determining in which states cigarettes manufactured by Ridgeway would be sold; (5) making hiring decisions for Ridgeway; (6) directing money intended for Ridgeway to Heflin, White, Edwards and Brands; (7) excessively fragmenting Ridgeway; (8) directing the movement of funds to prevent the payment of statutory escrow obligations; (9) disposing of almost all assets of Ridgeway; (10) directing Welchons to send information regarding the value of the equipment, spare parts, and inventory owned by Ridgeway to an employee of Swift Transportation (\u201cSwift\u201d), by whom Heflin had previously been employed; (11) hiring attorneys, Michelle Turpin and Victor Schwartz, in 2004 to assist Ridgeway with its finances; (12) making payments to the attorneys in excess of $1 million, \u201c[without] financial records of how that money was spent\u201d; (13) directing, with Schwartz\u2019s aid, the destruction of Ridgeway\u2019s paper records, computer hard drives, and tape back-ups; (14) keeping \u201cno corporate financial records or grossly inadequate corporate records\u201d; and (15) informing Welchons that Ridgeway would not file bankruptcy because Heflin \u201cdid not want anybody looking back to see what was going on and track the money back to where it came from.\u201d\nRather than become a participating manufacturer under the MSA, Ridgeway elected to comply with N.C. Gen. Stat. \u00a7 66-291. In April 2003, Ridgeway made its first escrow deposit of $1,220,313.60, as required by N.C. Gen. Stat. \u00a7 66-291(b), for sales of cigarettes in North Carolina during 2002. However, in 2003, Ridgeway sold at least 70.6 million cigarettes in North Carolina, which required a deposit of approximately $1.3 million into the escrow account before 15 April 2004. Ridgeway failed to make this deposit. In 2004, Ridgeway sold at least 17 million cigarettes in North Carolina, and despite being notified multiple times by the State of their escrow obligation, Ridgeway again failed to make the required deposit before 15 April 2005. In fall 2004, Ridgeway stopped manufacturing cigarettes, and no escrow was ever deposited by Ridgeway for cigarettes sold during 2003 and 2004.\nOn 4 May 2004, plaintiff instituted this action seeking to recover from Ridgeway the escrow deposit due in 2004, civil penalties, and also seeking an injunction prohibiting Ridgeway from selling cigarettes in North Carolina for two years. On 19 October 2005, plaintiff filed an amended complaint. This complaint added claims for the escrow deposit due in 2005, together with civil penalties arising from the failure to make the deposit. It further sought to impose liability upon defendants Brands, Edwards, White and Heflin under a piercing the corporate veil theory. Claims were also made against defendants under the North Carolina Unfair and Deceptive Trade Practices Act and for civil conspiracy.\nOn 25 October 2005, Ridgeway and Heflin moved to dismiss plaintiffs amended complaint. On 9 December 2005, Judge Smith granted the motion to dismiss in part, dismissing the claims for piercing the corporate veil, unfair and deceptive trade practices, and conspiracy as to both Ridgeway and Heflin. The order further dismissed the claims for civil penalties as to Heflin. From this order, plaintiff appeals only as to the dismissal of its claims against Heflin.\nInterlocutory Appeal\nWe must first determine whether plaintiffs appeal is interlocutory and whether it is properly before this Court. This appeal concerns only Heflin, not the other defendants. The trial court did not certify the judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2005). Therefore, we must first determine whether this appeal affects a substantial right. We conclude it does.\n\u201cThe right to avoid two. trials on the same or overlapping issues .. . constitute^] a substantial right].]\u201d Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 707, 582 S.E.2d 343, 345 (2003); see also Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982); Liggett Group v. Sunas, 113 N.C. App. 19, 437 S.E.2d 674 (1993). Similarly, the dismissal of plaintiffs claim against Heflin \u201caffects a substantial right to have determined in a single proceeding the issues of whether [plaintiff] has been damaged by the actions of one, some or all defendants, especially since [plaintiffs] claims against all of them arise upon the same series of transactions.\u201d Fox v. Wilson, 85 N.C. App. 292, 298, 354 S.E.2d 737, 741 (1987).\nIn the instant case, since the liability of Edwards, White, and Brands depends on Heflin\u2019s joint and several liability, plaintiff faces the possibility of having to undergo two trials on the same issue. We therefore address the merits of this appeal.\nStandard of Review\nA motion to dismiss under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2005), tests the legal sufficiency of the complaint. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 373, 553 S.E.2d 89, 91 (2001) (citation omitted). On appeal, our standard of review \u201cis whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theoryf.]\u201d Bowman v. Alan Vester Ford Lincoln Mercury, 151 N.C. App. 603, 606, 566 S.E.2d 818, 821 (2002) (quotation omitted). The complaint should be \u201cliberally construed, and the court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.\u201d Id.\nI: Liability pursuant to Piercing the Corporate Veil\nIn its first argument, plaintiff contends that the trial court erred by granting Heflin\u2019s N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss plaintiff\u2019s claim for piercing the corporate veil. We agree. However, we must first address the argument in Heflin\u2019s brief that N.C. Gen. Stat. \u00a7 1-54(2) bars plaintiff from collecting penalties in connection with past due escrow payments from Heflin under a theory of piercing the corporate veil, because plaintiff\u2019s amended complaint does not relate back to the original complaint. We agree in part.\nA: Statute of Limitations\nOn 4 May 2004, plaintiff filed suit against Ridgeway for Ridgeway\u2019s failure to make escrow payments due on 15 April 2004. Plaintiff filed suit within one year of Ridgeway\u2019s failure to make the 15 April 2004 escrow payment, which was within the applicable statute of limitations. See N.C. Gen. Stat. \u00a7 1-54(2) and 66-291(c) (2005). On 19 October 2005, plaintiff amended its complaint to include Ridgeway\u2019s failure to make escrow payments due on 15 April 2005 and to bring an action against Heflin, alleging a theory of piercing the corporate veil. Heflin contends that the statute of limitations had expired as to him, since the complaint was amended to add him as a party defendant more than one year after Ridgeway\u2019s failure to make the escrow payment due on 15 April 2004, and that the amended complaint does not relate back to the original complaint.\n\u201c[I]t is well-established law that if a plaintiff does not name the party responsible for his alleged injury before the statute of limitations runs, his claim will be dismissed.\u201d Estate of Fennell v. Stephenson, 354 N.C. 327, 332, 554 S.E.2d 629, 632 (2001). However, in certain circumstances, a complaint may relate back \u201cwith respect to a party defendant added after the applicable limitations period[.]\u201d Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 39, 450 S.E.2d 24, 31 (1994). The law regarding \u201c[wjhether a complaint will relate back\u201d to an added party hinges upon \u201cwhether that new defendant had notice of the claim so as not to be prejudiced by the untimely amendment.\u201d Id.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 15(c), allows the relation back of claims in amended complaints in certain circumstances:\nA claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.\nId. In Callicutt v. Motor Co., 37 N.C. App. 210, 212, 245 S.E.2d 558, 560 (1978), this Court explained Rule 15(c):\nIf the effect of the proposed amendment is merely to correct the name of a party already in court, clearly there is no prejudice in allowing the amendment, even though it relates back to the date of the original complaint. ... On the other hand, if the effect of the amendment is to substitute for the defendant a new party, or add another party, such amendment amounts to a new and independent clause (sic) of action and cannot be permitted when the statute of limitations has run.\nId. (citing Kerner v. Rackmill, 111 F. Supp. 150, 151 (M.D.P.A. 1953)). In the second scenario, in which the amended complaint actually \u201cadd[s] another party,\u201d our Supreme Court has been reluctant to conclude that a party added in an amended complaint can ever have adequate notice. Id.; see also Estate of Fennell, 354 N.C. at 332, 554 S.E.2d at 632; Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995). The Court explained that \u201cwhile Rule 15 of the North Carolina Rules of Civil Procedure permits the relation-back doctrine to extend periods for pursuing claims, it does not apply to parties.\u201d Estate of Fennell, 354 N.C. at 334-5, 554 S.E.2d at 633-4 (citing Crossman, 341 N.C. at 187, 459 S.E.2d at 717). The Court set forth the rationale for this rule:\nWhen [an] amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur. As a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed. We hold that this rule does not apply to the naming of a new party-defendant to the action. It is not authority for the relation back of a claim against a new party.\nCrossman, 341 N.C. at 187, 459 S.E.2d at 717. This is true even when \u201ca proposed amendment join[s] a partner as an individual defendant in an action against his partnership . . . even though the partner was fully aware of the action and participated in its defense.\u201d 1 G. Gray Wilson, North Carolina Civil Procedure \u00a7 15-12, at 315 (1995) (citing Crossman, 341 N.C. 185, 459 S.E.2d 715).\nIn light of Crossman, we hold that the statute of limitations expired as to any claims against Heflin for penalties under N.C. Gen. Stat. \u00a7 66-291(c) arising from the failure to make the 2004 escrow deposit. We thus affirm the trial court\u2019s dismissal of the claim for penalties arising out of the failure to pay the 2004 escrow deposit. However, the dismissal of this claim has no effect upon plaintiffs claims for payment of the 2004 escrow deposit. See Miller v. C. W. Myers Trading Post, Inc., 85 N.C. App. 362, 368, 355 S.E.2d 189, 193 (1987) (holding that N.C. Gen. Stat. \u00a7 1-54(2) was inapplicable to an action not constituting a \u201cpenalty or forfeiture\u201d and the purpose of which was not \u201cpunitive\u201d); see also N.C. Gen. Stat. \u00a7 1-52(2) (2005).\nFurther, at the time of the filing of the amended complaint, which named Heflin as a party to this action, the one-year statute of limitations had not expired as to any penalties arising from the failure to make the 2005 escrow deposit.\nB: Piercing the Corporate Veil\nNorth Carolina courts will \u201cpierce the corporate veil\u201d where an \u201cindividual exercises actual control over a corporation, operating it as a mere instrumentality!)]\u201d Becker v. Graber Builders, Inc., 149 N.C. App. 787, 790, 561 S.E.2d 905, 908 (2002) (citation omitted). The North Carolina Supreme Court set forth the \u201cinstrumentality rule\u201d as follows:\n[When a] corporation is so operated that it is a mere instrumentality or alter ego of the sole or dominant shareholder and a shield for his activities in violation of the declared public policy or statute of the State, the corporate entity will be disregarded and the corporation and the shareholder treated as one and the same person, it being immaterial whether the sole or dominant shareholder is an individual or another corporation.\nHenderson v. Finance Co., 273 N.C. 253, 260, 160 S.E.2d 39, 44 (1968). Liability may be imposed on an individual controlling a corporation as an \u201cinstrumentality\u201d when the individual had:\n(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and\n(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of plaintiffs legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\nGlenn v. Wagner, 313 N.C. 450, 455, 329 S.E.2d 326, 330 (1985).\nFactors to consider in determining whether to pierce the corporate veil include: (1) inadequate capitalization; (2) non-compliance with corporate formalities; (3) complete domination and control of the corporation so that it has no independent identity; and (4) excessive fragmentation of a single enterprise into separate corporations. Id. at 455, 329 S.E.2d at 330-31 (citing generally, Robinson, North Carolina Corporation Law \u00a7\u00a7 2-12, 9-7 to -10 (3d ed. 1983)).\nThe question for this Court is whether the allegations in plaintiffs complaint are sufficient to state a claim for piercing the corporate veil.\nPlaintiff alleges that Heflin: (1) \u201coverwhelmingly dominated and controlled [Ridgeway] to the extent [Ridgeway] had no separate identity [;]\u201d (2) used that control to \u201cset[] the pricing structure\u201d so as to violate N.C. Gen. Stat. \u00a7 66-291(b); and (3) that Heflin\u2019s aforesaid control and statutory violation proximately caused unjust capital loss to the escrow fund established by N.C. Gen. Stat. \u00a7 66-291(b). Plaintiff specifically alleged that Heflin \u201cdeliberately ignored\u201d the advice of Ridgeway\u2019s general manager, who warned that \u201cthe pricing structure was grossly inadequate to satisfy the statutory obligations of the [North Carolina] escrow payment [statute].\u201d Plaintiff alleged that Heflin, Edwards and White were responsible for setting the pricing structure for the sale of cigarettes, \u201cwhich was well below the minimum necessary level to pay the statutory obligations[.,]\u201d Further, they set this pricing structure \u201cto have an unfair advantage over similarly situated competitors . . . with no intention of paying their statutory obligations].]\u201d Moreover, plaintiff contended that Heflin, Edwards and White \u201ctook money out of [Ridgeway] and left [Ridgeway] in disarray^]\u201d that Ridgeway was \u201cinadequately capitalized\u201d and \u201cexcessively fragment[ed][;]\u201d that \u201cno corporate financial records or grossly inadequate corporate records existed for [Ridgeway] [;]\u201d and that Ridgeway \u201cfailed to follow corporate formalities[.]\u201d Accordingly, we hold that the allegations in plaintiff\u2019s complaint are sufficient to state a claim for piercing the corporate veil. See, e.g., Becker, 149 N.C. App. at 790, 561 S.E.2d at 908.\nWe reverse the trial court as to this assignment of error.\nII: Unfair and Deceptive Trade Practices\nIn its second argument, plaintiff contends that the trial court erred by dismissing its claim for relief under N.C. Gen. Stat. \u00a7 75-1.1 (2005), the Unfair and Deceptive Trade Practices Act. We disagree and affirm the trial court.\nN.C. Gen. Stat. \u00a7 75-1.1 states, in pertinent part, the following:\n(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\n(b) For purposes of this section, \u201ccommerce\u201d includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.\nId.\nTo establish a prima facie claim for unfair and deceptive trade practices, the plaintiff must show: (1) Heflin committed an unfair or deceptive act or practice; (2) the action in question was in or affecting commerce; and (3) the act proximately caused injury to the plaintiff. Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 664, 464 S.E.2d 47, 58 (1995).\nHeflin contends that its failure to perform its obligation under N.C. Gen. Stat. \u00a7 66-291 does not provide a cause of action under N.C. Gen. Stat. \u00a7 75-1.1, basing his argument upon the rationale of Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162, 166 (4th Cir. 1985), in which the Fourth Circuit held that N.C. Gen. Stat. \u00a7 75-1.1 did not apply to securities transactions. The court reasoned that \u201cthe North Carolina legislature would [not] have intended \u00a7 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act\u201d and other federal acts. Id. at 167. The court stated that \u201c[t]he presence of other federal or state statutory schemes may limit the scope of \u00a7 75-1.1.\u201d Id.\nIn Skinner v. E. F. Hutton & Co., 314 N.C. 267, 268, 333 S.E.2d 236, 237 (1985), our Supreme Court cited Lindner as persuasive authority, holding that \u201csecurities transactions are beyond the scope of [N.C. Gen. Stat. \u00a7 75-1.1.]\u201d Id. The Court in Hajmm Co. v. House of Raeford Farms, 328 N.C. 578, 403 S.E.2d 483 (1991), expanded the exception established by Skinner, holding that \u00a7 75-1.1 did not apply to a corporation\u2019s refusal to redeem revolving fund certificates issued by the corporation. The Court reasoned that the extension of the scope of \u00a7 75-1.1 in this context would \u201ccreate overlapping supervision, enforcement, and liability in [an] area [that] is already pervasively regulated by state and federal statutes and agencies.\u201d Id. at 593, 403 S.E.2d at 493. The Court explained that \u201cthere is enough legislative apparatus already in place . . . without also applying [\u00a7 75-1.1].\u201d Id.\nIn the instant case, N.C. Gen. Stat. \u00a7 66-291 (2005) provides that: \u201cAny tobacco product manufacturer selling cigarettes to consumers within the State . . . shall\u201d either elect to \u201c[b]ecome a participating manufacturer... under the Master Settlement Agreement\u201d or \u201c[p]lace into a qualified escrow fund by April 15 of the year following the year in question the following amounts[:] . . . For each of 2003 through 2006: $.0167539 per unit sold.\u201d Id. N.C. Gen. Stat. \u00a7 66~291(c) provides the remedy for failure to comply with the aforementioned statute: \u201c[t]he Attorney General may bring a civil action on behalf of the State against any tobacco product manufacturer that fails to place into escrow the funds required under this section.\u201d Id. N.C. Gen. Stat. \u00a7 66-291(c) further provides that the noncompliant manufacturer has fifteen days to \u201cplace such funds into escrow as shall bring it into compliance.\u201d Id. If the violation was a \u201cknowing violation,\u201d the court may impose the following civil penalty:\n[A]n amount not to exceed fifteen percent (15%) of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent (300%) of the original amount improperly withheld from escrow[.]\nId. We hold that N.C. Gen. Stat. \u00a7 66-291 is analogous to the regulations discussed in Lindner, 761 F.2d 162, Skinner, 314 N.C. 267, 333 S.E.2d 236, and Hajmm Co., 328 N.C. 578, 403 S.E.2d 483. N.C. Gen. Stat. \u00a7 66-291 itself provides an extensive remedy for failure to comply with the escrow obligation. Because the presence of other statutory schemes may limit the scope of N.C. Gen. Stat. \u00a7 75-1.1, we conclude that extension of the scope of N.C. Gen. Stat. \u00a7 75-1.1 in this context would create unnecessary and \u201coverlapping supervision, enforcement, and liability!)]\u201d Hajmm Co., 328 N.C. at 593, 403 S.E.2d at 493. We conclude that it was not the legislature\u2019s intent to extend the scope of Chapter 75 to include noncompliance with N.C. Gen. Stat. \u00a7 66-291. \u201c[T]here is enough legislative apparatus already in place ... without also applying the Act.\u201d Id. We affirm the trial court\u2019s dismissal of this claim.\nIll: Civil Conspiracy\nIn its third argument, plaintiff contends that the trial court erred by granting Heflin\u2019s N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss the claim for civil conspiracy in plaintiff\u2019s amended complaint. We agree.\nThe elements of a civil conspiracy are: \u201c(1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or more of the conspirators; and (4) pursuant to a common scheme.\u201d Privette v. University of North Carolina, 96 N.C. App. 124, 139, 385 S.E.2d 185, 193 (1989).\nThe doctrine of intracorporate immunity holds that, since at least two persons must be present to form a conspiracy, a corporation cannot conspire with itself, just as an individual cannot conspire with himself. Buschi v. Kirven, 775 F.2d 1240, 1251-52 (4th Cir. 1985). An allegation that a corporation is conspiring with its agents, officers or employees is tantamount to accusing a corporation of conspiring with itself. Id. Moreover, the grant of immunity is not destroyed by suing the agent in his individual capacity. Id. at 1252. However, an exception to the doctrine exists if the corporate agent has an \u201cindependent personal stake in achieving the corporation\u2019s illegal objective.\u201d Id. (citing Greenville Publishing Co., Inc., v. Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974)).\nIn the instant case, the complaint alleged:\nDefendants shared an understanding, either expressed or implied, to enter into an agreement to underprice the cigarettes made by Defendant [Ridgeway] and distributed and sold by [Brands] so that [Ridgeway] would be unable to deposit sufficient escrow to cover sales in violation of N.C. Gen. Stat. \u00a7 66-291 and would deprive the State of North Carolina of a fund against which it could execute judgments against Defendant [Ridgeway].\nDefendants shared an understanding, either express or implied, to enter into an agreement to unfairly and deceptively underprice the cigarettes made by Defendant [Ridgeway] and distributed and sold by [Brands] so that [Ridgeway] would be unable to deposit sufficient escrow to cover sales in violation of N.C. Gen. Stat. \u00a7 66-291 and deprived the State of a fund against which it could execute judgments.\nWe again note that the complaint should be \u201cliberally construed, and the court should not dismiss the complaint unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.\u201d Bowman 151 N.C. App. at 606, 566 S.E.2d at 821.\nPlaintiff\u2019s complaint alleges that an agreement existed between Heflin, Edwards and White, to violate, pursuant to a common scheme, the corporation\u2019s escrow obligation under N.C. Gen. Stat. \u00a7 66-291, which caused injury to plaintiff by \u201cdepriv[ing] [plaintiff] of a fund against which it could execute judgments.\u201d See generally Privette, 96 N.C. App. 124, 385 S.E.2d 185.\nFurthermore, we conclude that the benefit accruing to Heflin from his conspiracy was not merely the benefit associated with the profitability of the corporations, Ridgeway and Brands. Plaintiffs complaint supports the theory that Heflin had an \u201cindependent personal stake in achieving the corporation\u2019s illegal objective,\u201d because plaintiff alleged that Heflin \u201cdirecte[d] monies intended to [Ridgeway] to either . . . Edwards, White, [Brands] or [Heflin] [.]\u201d Plaintiff further alleged that, in 2004, Heflin told Welchons that \u201c[Ridgeway] was not going to file for bankruptcy because [Heflin] and others did not want anybody looking back to see what was going on and track the money back to where it came from.\u201d After this comment, Welchons considered \u201cthe creation of financial records\u201d and the hiring of \u201cattorneys Schwartz and Turpin\u201d to be \u201ca cover-up to hide activities.\u201d Ridgeway made payments in excess of $1 million to Turpin and Schwartz, \u201cof which none was ever accounted for or returned to [Ridgeway][.]\u201d Welchons, the general manager of Ridgeway, was never told how the money was spent. Plaintiff alleged that Heflin and others \u201cdisposed of almost all assets of [Ridgeway]\u201d and \u201csiphonfed] off funds to\u201d themselves. We hold that the foregoing is sufficient to support the theory that Heflin had an \u201cindependent personal stake in achieving the corporation\u2019s illegal objective.\u201d Buschi, 775 F.2d at 1252.\nWe reverse the trial court\u2019s order granting Heflin\u2019s N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss as to the claim for civil conspiracy.\nFor the reasons discussed above, we affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.\nAFFIRMED IN PART, REVERSED IN PART.\nJudge HUNTER concurs.\nJudge WYNN concurring in part and dissenting in part.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "WYNN, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority in concluding that this appeal presents the possibility of two trials on the same issue, as well as the majority\u2019s holding to reverse the trial court\u2019s granting of Mr. Heflin\u2019s Rule 12(b)(6) motion on the State\u2019s claim for piercing the corporate veil and to affirm the trial court\u2019s dismissal of the State\u2019s UDTP claim. However, I would reverse the trial court\u2019s dismissal of the State\u2019s claim for civil penalties, and I would affirm the trial court\u2019s dismissal of the State\u2019s claim of civil conspiracy. From those portions of the majority opinion, I therefore respectfully dissent.\nI.\nFirst, I disagree with the conclusions of the majority\u2019s analysis as to the issue of the State\u2019s claim for civil penalties against Mr. Heflin, relating to the non-payment of the 2004 escrow fees.\nAs cited by the majority, our Supreme Court has established the rule that a \u201cnew party-defendant\u201d may not be named in the amendment of a complaint, as the North Carolina Rules of Civil Procedure are \u201cnot authority for the relation back of a claim against a new party.\u201d See, e.g., Crossman v. Moore, 341 N.C. 186, 187, 469 S.E.2d 716, 717 (1995). The instant case, however, also involves a claim by the State to pierce the corporate veil of Ridgeway, a claim which we allow to go forward by reversing the trial court\u2019s granting of Mr. Heflin\u2019s Rule 12(b)(6) motion.\nIf the State subsequently succeeds on its claim to pierce the corporate veil, Mr. Heflin would not be a new party-defendant, as a jury would therefore have concluded that he is the alter ego of Ridgeway. As such, the lack of his name in the original complaint would essentially be immaterial with respect to the question of notice, the Supreme Court\u2019s primary concern in disallowing the relation-back doctrine as to newly named parties. See id. (\u201cAs a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed.\u201d).\nI find the reasoning in Strawbridge v. Sugar Mountain Resort, Inc., 243 F. Supp. 2d 472 (W.D.N.C. 2003), to be persuasive and applicable to the case at hand. In Strawbridge, the Western District Court held that the filing of an action against a corporation stopped the limitation period from running with respect to alter egos of the corporation. Id. at 476-77.1 believe this approach to be more consistent with the idea of what an \u201calter ego\u201d means, in that \u201cthe corporate entity will be disregarded and the corporation and the shareholder treated as one and the same person[.]\u201d Henderson v. Security Mortgage & Finance Co., Inc., 273 N.C. 253, 260, 160 S.E.2d 39, 44 (1968) (emphasis added).\nThus, I would conclude that the State\u2019s claim for civil penalties, and whether it was filed after the expiration of the applicable statute of limitations, hinges on whether the State can successfully pierce the corporate veil and establish that Mr. Heflin and Ridgeway are alter egos. Given that this case is before us on review of a Rule 12(b)(6) motion, and we have held that the State can proceed with its claim to pierce the corporate veil, I would likewise reverse the trial court\u2019s order dismissing the State\u2019s claim for civil penalties.\nII.\nNext, although I agree with the majority that intracorporate immunity should not apply in this case, I do not believe that the State\u2019s complaint alleged sufficient facts to show a civil conspiracy in this case. I would therefore affirm that portion of the trial court\u2019s order that dismissed the State\u2019s claim for civil conspiracy.\nTo state a claim for civil conspiracy, there must be proof of an agreement between two or more persons to do an unlawful act or a lawful act in an unlawful manner. Dove v. Harvey, 168 N.C. App. 687, 690, 608 S.E.2d 798, 800-01 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 249 (2006). Here, the State\u2019s complaint referred only to Defendants \u201csharfing] an understanding, either expressed or implied, to enter into an agreement^]\u201d Although the State argues that this allegation should be sufficient in light of North Carolina\u2019s adoption of notice pleading, this Court has also noted that \u201cthe evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury.\u201d Id. at 690-91, 608 S.E.2d at 801 (citation and quotation omitted). I do not believe the State\u2019s complaint meets this burden.\nThe State\u2019s complaint includes no factual allegations to support the notion of an agreement or conspiracy among Mr. Heflin, Mr. Edwards, and Mr. White to underprice the cigarettes' for the express purpose of avoiding its statutory obligations to pay into the qualified escrow account. Even were all the facts of the complaint taken as true, its allegations are insufficient to \u201ccreate more than a suspicion or conjecture\u201d of an actual agreement among the parties; accordingly, they fail to state a claim for civil conspiracy. I would therefore affirm the trial court\u2019s dismissal of the State\u2019s claim for civil conspiracy.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WYNN, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorneys General Richard L. Harrison, Karen E. Long, and Melissa L. Trippe, for plaintiff-appellant State of North Carolina.", "Poyner & Spruill LLP, by J. Nicholas Ellis and Timothy W. Wilson, for defendant-appellees, Ridgeway Brands Manufacturing, LLC and James C. Heflin." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, ex rel. ROY COOPER, Attorney General of North Carolina, Plaintiff v. RIDGEWAY BRANDS MANUFACTURING, LLC, a North Carolina corporation; RIDGEWAY BRANDS, INC.; JAMES C. HEFLIN; FRED A. EDWARDS; and CARL B. WHITE, Defendants\nNo. COA06-422\n(Filed 17 July 2007)\n1. Appeal and Error\u2014 appealability \u2014 dismissal of claims against one defendant \u2014 avoiding two trials on same issne \u2014 substantial right\nAn order dismissing claims against one defendant affected a substantial right and was immediately appealable despite being interlocutory where the liability of codefendants depended upon this defendant\u2019s joint and several liability, so that plaintiff faced the possibility of having to undergo two trials on the same issue.\n2. Statutes of Limitation and Repose\u2014 amended complaint\u2014 expired statute of limitations \u2014 no relation back\nThe statute of limitations expired as to any claims against defendant Heflin for penalties under N.C.G.S. \u00a7 66-291(c) arising from failure to make the escrow deposit required of cigarette manufacturers, and an amended complaint which added him as a defendant did not relate back. The trial court correctly dismissed the claim for penalties for failure to pay the 2004 escrow deposit, but this dismissal has no effect on other claims.\n3. Corporations\u2014 piercing the corporate veil \u2014 allegations sufficient\nThe allegations in plaintiffs complaint were .sufficient to state a claim for piercing the corporate veil, and the trial court erred by granting defendant\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12 (b)(6).\n4. Unfair Trade Practices\u2014 cigarette manufacturing \u2014 statutory requirements \u2014 not covered by unfair practices statute\nThe trial court did not err by dismissing plaintiffs claim under the Unfair and Deceptive Trade Practices Act arising from the statutory obligation of cigarette manufacturers under N.C.G.S. \u00a7 66-291. That statute provides an extensive remedy for failure to comply with its obligations; it was not the legislature\u2019s intent to extend the scope of Chapter 75 to include noncompliance with N.C.G.S. \u00a7 66-291.\n5. Corporations\u2014 civil conspiracy \u2014 independent personal stake of corporate agent\nThe trial court erred by dismissing plaintiff\u2019s claim for civil conspiracy for failure to state a claim upon which relief could be granted. While an allegation that a corporation is conspiring with its agents, employees, or officers is tantamount to accusing a corporation of conspiring with itself, an exception exists if the corporate agent has an independent personal stake in achieving the corporation\u2019s illegal objective, as here.\nJudge WYNN concurring in part and dissenting in part.\nAppeal by the State of North Carolina from order entered 9 December 2005 by Judge Donald L. Smith in Wake County Superior Court. Heard in the Court of Appeals 12 December 2006.\nAttorney General Roy Cooper, by Special Deputy Attorneys General Richard L. Harrison, Karen E. Long, and Melissa L. Trippe, for plaintiff-appellant State of North Carolina.\nPoyner & Spruill LLP, by J. Nicholas Ellis and Timothy W. Wilson, for defendant-appellees, Ridgeway Brands Manufacturing, LLC and James C. Heflin." }, "file_name": "0613-01", "first_page_order": 645, "last_page_order": 660 }