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      "PATRICIA COLYER BIRTHA, as administratrix of the Estate of SARAH LENON COLYER; deceased, JAMES WEST LINDSAY, as administrator of the Estate of LOTTIE MAE LINDSAY and WILLIAM LINDSAY, deceased, MONTEZZ NELSON, next of kin of REBECCA GRIER and JAMES GRIER, deceased on behalf of themselves and all other persons similarly situated, Plaintiffs v. STONEMOR, NORTH CAROLINA, LLC, STONEMOR, NORTH CAROLINA FUNERAL SERVICES, INC., STONEMOR, NORTH CAROLINA SUBSIDIARY, LLC, ALDERWOODS GROUP, INC., SERVICE CORPORATION INTERNATIONAL, a/k/a SCI, d/b/a York Memorial Cemetery, Defendants"
    ],
    "opinions": [
      {
        "text": "BEASLEY, Judge.\nPatricia Colyer Birtha, James West Lindsay, and Montez Nelson (Plaintiffs) appeal an order of dismissal of their claims of negligence, breach of contract, fraud, fraud upon the public, and unfair and deceptive trade practices against Stonemor, North Carolina, LLC, Stonemor, North Carolina Funeral Services, Inc., Stonemor North Carolina Subsidiary, LLC, Alderwoods Group, Inc., and Service Corporation International aka SCI doing business as York Memorial Cemetery (Defendants). For the following reasons, we affirm.\nPlaintiffs assert similar injuries stemming from Defendants\u2019 alleged failure to properly maintain grave sites. Plaintiff Birtha\u2019s mother was buried at York Cemetery in 1968 and in February 2007, after several inquiries, Birtha became aware that her mother\u2019s headstone was placed at the wrong burial plot. Plaintiff Lindsay\u2019s mother\u2019s and father\u2019s remains were interred at York Cemetery in August 1986. In February 2007, Lindsey discovered that Defendants removed his parents\u2019 headstones, and Defendants informed him that his parents\u2019 headstones and gravesites could not be located. Plaintiff Nelson\u2019s mother\u2019s remains were buried at York Cemetery in February 2003 and her father\u2019s remains were buried November of 2006. When Nelson\u2019s father\u2019s remains were buried, she was informed that Defendants could not locate her mother\u2019s grave site.\nPlaintiffs commenced this action on 18 June 2007, in their capacities as estate administrators, against Defendants. Defendant SCI moved to dismiss the original complaint pursuant to N.C.R. Civ. P. 12(b)(2) (Rule 12(b)(2)) and Defendants Alderwoods Group, Inc. and SCI moved to dismiss pursuant to N.C.R. Civ. P. 12(b)(6) (Rule 12(b)(6)). At the 17 April 2009 hearing, Plaintiffs submitted an amended complaint. On 9 July 2010, the trial court granted Defendants\u2019 motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6) and dismissed all claims against all Defendants. Plaintiffs filed a motion for a new trial on 12 August 2010 and notice of appeal on 27 August 2010.\nIn their first argument, Plaintiffs assert that the trial court committed reversible error when it dismissed SCI from the suit for lack of personal jurisdiction. We disagree.\nOur Court has previously held that when reviewing the grant or denial of a Rule 12(b)(2) motion\n[t]he standard of review to be applied by a trial court . . . depends upon the procedural context confronting the court.\nIf the defendant supplements his motion to dismiss with an affidavit or other supporting evidence, the allegations in the complaint can no longer be taken as true or controlling and plaintiff cannot rest on the allegations of the complaint. In order to determine whether there is evidence to support an exercise of personal jurisdiction, the court then considers (1) any allegations in the complaint that are not controverted by the defendant\u2019s affidavit and (2) all facts in the affidavit (which are uncontroverted because of the plaintiff\u2019s failure to offer evidence).\nWhen this Court reviews a decision as to personal jurisdiction, it considers only whether the findings of fact by the trial court are supported by competent evidence in the record; if so, this Court must affirm the order of the trial court. Under Rule 52(a)(2) of the Rules of Civil Procedure, however, the trial court is not required to make specific findings of fact unless requested by a party. When the record contains no findings of fact, it is presumed that the court on proper evidence found facts to support its judgment.\nBanc of Am. Secs. LLC v. Evergreen Int\u2019l Aviation, Inc., 169 N.C. App. 690, 693-94, 611 S.E.2d 179, 182-83 (2005) (internal citations, internal quotation marks, ellipses, and brackets omitted).\nIn order to determine whether our courts may exercise personal jurisdiction over a non-resident defendant, we apply a two part test: \u201c(1) Does a statutory basis for personal jurisdiction exist, and (2) If so, does the exercise of this jurisdiction violate constitutional due process?\u201d Golds v. Central Express, Inc., 142 N.C. App. 664, 665, 544 S.E.2d 23, 25 (2001). \u201cThe assertion of personal jurisdiction over a defendant comports with due process if defendant is found to have sufficient minimum contacts with the forum state to confer jurisdiction.\u201d Id. at 665-66, 544 S.E.2d at 25. The long-arm statute is \u201cliberally construed to find personal jurisdiction over nonresident defendants to the full extent allowed by due process.\u201d Id. at 666, 544 S.E.2d at 26 (internal quotation marks omitted). \u201cThe burden is on [the] plaintiff to establish itself within some ground for the exercise of personal jurisdiction over defendant.\u201d Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 677, 245 S.E.2d 782, 784 (1978).\nIn the present case, Plaintiffs contend that N.C. Gen. Stat. \u00a7 1-75.4(1) confers jurisdiction because SCI acquired and retains all shares in Alderwoods, a co-defendant. Defendant SCI submitted an affidavit in support of its Rule 12(b)(2) motion. Plaintiffs did not present any affidavits, but instead relied on verified responses by Defendants. Defendants\u2019 responses merely re-state an issue that is uncontroverted; SCI acquired and retains all shares of Alderwoods. However, \u201cwhen a subsidiary of a foreign corporation is carrying on business in a particular jurisdiction, the parent is not automatically subject to jurisdiction in the state\u201d. Ash v Burnham, Corp, 80 N.C. App. 459, 462, 343 S.E.2d 2, 4 (1986) (internal quotation marks and citations omitted). Rather, the issue is whether or not SCI, by virtue of its position as sole shareholder in Alderwoods, falls within the purview of the long-arm statute.\nIn Golds, our Court found that the plaintiff did not meet its burden of presenting a, prima facie statutory basis for personal jurisdiction where \u201cthe complaint [did] not state the section of this statute under which jurisdiction [was] obtained nor [did] it allege any facts as to activity being conducted in this State].]\u201d Golds, 142 N.C. App. at 667, 544 S.E.2d at 26. Similarly, Plaintiffs assert the section of the long-arm statute in their brief, but failed to state any grounds for personal jurisdiction in their complaint. Further, the complaint did not allege facts as to activity being conducted within the state by SCI.\n[W]e stressed that while application of the minimum contacts standard will vary with the quality and nature of defendant\u2019s activity, ... it is essential in each case that there be some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws. Absent such purposeful activity by defendant in the forum State, there can be no contact with the forum State sufficient to justify personal jurisdiction over defendant.\nBuying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979) (internal quotation marks and citations omitted).\nAn affidavit provided by Janet Key of SCI supports the trial court\u2019s decision in that SCI had no employees, it has corporate headquarters in Houston, Texas, SCI had no business dealings in North Carolina, nor does it maintain accounts in North Carolina, SCI does not own real property in North Carolina, nor pay taxes to the State of North Carolina. Based on the foregoing, we hold that Plaintiffs failed to allege facts that permitted the inference of jurisdiction under the long-arm statute. Therefore, Plaintiffs\u2019 argument is overruled.\nNext, Plaintiffs contend that the trial court erred by granting Defendants\u2019 motion to dismiss the claims of negligence, fraud, and breach of contract. Plaintiffs assert that they filed their claims within the required statute of limitations, and that North Carolina recognizes the continuing wrong doctrine as a tolling mechanism for negligence claims. We disagree.\nThis Court reviews the grant of a motion to dismiss pursuant to Rule 12(b)(6) to determine\nwhether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint\u2019s material factual allegations are taken as true. Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff\u2019s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiffs claim. On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\nBurgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29 (2007) (internal quotation marks and citations omitted).\nThe trial court dismissed Plaintiffs\u2019 negligence claim on two grounds, that it (1) was barred by the statute of limitations and (2) failed to state a claim for relief. (R. 48)\nTo successfully allege a negligence claim, plaintiffs must show \u201c(1) the defendant owed the plaintiff a duty of reasonable care, (2) the defendant breached that duty, (3) the defendant\u2019s breach was an actual and proximate cause of the plaintiff\u2019s injury, and (4) the plaintiff suffered damages as the result of the defendant\u2019s breach.\u201d Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009) (citation omitted). \u201cA statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim. Once the defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff.\u201d Horton v. Carolina Medicorp, 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996) (citation omitted). Pursuant to N.C. Gen. Stat \u00a7 1-52 (2011), the statute of limitations for negligence is three years. \u201cA cause of action based on negligence accrues when the wrong giving rise to the right to bring suit is committed, even though the damages at that time be nominal and the injuries cannot be discovered until a later date.\u201d Harrold v. Dowd, 149 N.C. App. 777, 781, 561 S.E.2d 914, 918 (2002).\nPlaintiffs assert that the continuing wrong doctrine applies to the negligence claims and thereby tolls the statute of limitations until the violative act ceases. Our Supreme Court has recognized the continuing wrong doctrine as \u201can exception to the general rule that a claim accrues when the right to maintain a suit arises.\u201d Babb v. Graham, 190 N.C. App. 463, 481, 660 S.E.2d 626, 637 (2008). \u201cFor the continuing wrong doctrine to apply, the plaintiff must show a continuing violation by the defendant that is occasioned by continual unlawful acts, not by continual ill effects from an original violation.\u201d Marzec v. Nye, 203 N.C. App. 88, 94, 690 S.E.2d 537, 542 (2010) (internal quotation marks and brackets omitted). \u201cCourts view continuing violations as falling into two narrow categories. One category arises when there has been a long-standing policy of discrimination. ... In the second continuing violation category, there is a continually recurring violation.\u201d Faulkenbury v. Teachers\u2019 & State Employees\u2019 Retirement System, 108 N.C. App. 357, 368, 424 S.E.2d 420, 425 (1993). The first category is not applicable in this case because Plaintiffs do not allege discrimination. As for the second category, our courts have used this exception narrowly. We could find no case law, and Plaintiffs have presented no case law to suggest that the allegations here would amount to a continually recurring violation as opposed to the continual ill effects from an original violation.\nWe also reject Plaintiffs\u2019 assertion that the discovery rule tolls the statute of limitations in this case. \u201cN.C.G.S. \u00a7 1-52(16) establishes what is commonly referred to as the discovery rule, which tolls the running of the statute of limitations for torts resulting in certain latent injuries.\u201d Misenheimer v. Burris, 360 N.C. 620, 622, 637 S.E.2d 173, 175 (2006). The discovery rule provides,\n[u]nless otherwise provided by statute, for personal injury or physical damage to claimant\u2019s property, the cause of action, except in causes of actions referred to in G.S. l-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.\nN.C. Gen. Stat \u00a7 1-52(16) (2011) (emphasis added). In this case, Plaintiffs do not allege bodily harm or physical damage to Plaintiffs\u2019 property; therefore, the discovery rule is not applicable. Accordingly, the trial court properly determined that the doctrine of continuing wrong was inapplicable and all but one of Plaintiffs\u2019 negligence claims was properly dismissed as barred by the statute of limitations. Because Plaintiffs\u2019 claims were barred by the statute of limitations, with the exception of James Grier\u2019s (Mr. Grier) claim which Defendants concede is not barred by the statute of limitations, we now address Grier\u2019s remaining negligence claim.\nAll Plaintiffs, including Mr. Grier, rely on N.C. Gen. Stat. \u00a7 65-60 to establish a duty of care owed by Defendants. The statute states,\n[a] record shall be kept of every burial in the cemetery of a cemetery company, showing the date of burial, name of the person buried, together with lot, plot, and space in which such burial was made therein... and shall be readily available at all reasonable times for examination by an authorized representative of the [North Carolina Cemetery] Commission.\nN.C. Gen. Stat. \u00a7 65-60 (2011). Plaintiffs contend that Section 65-60 establishes both the duty supporting their common law negligence claims and also their negligence per se claims. In order to prevail on a claim of negligence per se, plaintiff must show,\n(1) a duty created by a statute or ordinance; (2) that the statute or ordinance was enacted to protect a class of persons which includes the plaintiff; (3) a breach of the statutory duty; (4) that the injury sustained was suffered by an interest which the statute protected; (5) that the injury was of the nature contemplated in the statute; and, (6) that the violation of the statute proximately caused the injury.\nRudd v. Electrolux Corp., 982 F. Supp. 355, 365 (1997) (citing Baldwin v. GTE South, Inc., 335 N.C. 544, 439 S.E.2d 108 (1994)).\nA plain reading of the Section 65-60 shows that the statute was designed to ensure that cemeteries keep proper records and to give the North Carolina Cemetery Commission authority to enforce the record keeping requirement. Plaintiffs argue that Section 65-60 is designed to protect them, but they fail to argue, and we fail to see, how Plaintiffs are included in the class that the statute was designed to protect. Moreover, Plaintiffs also fail to allege that Plaintiffs\u2019 injuries were suffered by an interest which the statute protected, and that the injuries were of the nature contemplated in the statute. Based on the foregoing, the trial court properly dismissed all of the negligence claims, including Mr. Grier\u2019s claim.\nNext, Plaintiffs argue that the trial court erred when it dismissed their claims for breach of contract. We disagree.\nPlaintiffs argue that they properly alleged a breach of the burial contract entered into by decedents. Plaintiffs advance breach of contract arguments on two bases: (i) failing to inter decedents in the agreed upon sites and (ii) failing to maintain records.\nPursuant to N.C. Gen. Stat. \u00a7 1-52 (2011), the applicable statute of limitations for a breach of contract claim is three years. This action was not commenced until 2007. Plaintiffs\u2019 complaint fails to specifically allege the dates of the breach of each respective contract. The complaint does give the following dates of interment:\n7. The deceased, Sarah Lenon Colyer, mother of Plaintiff, Patricia Colyer Birtha, was interred at Defendant cemetery on or about July 28, 1968.\n8. The deceased, Lottie Mae Lindsay, mother of Plaintiff, James West Lindsay was interred at Defendant cemetery immediately after becoming deceased on or about August 16, 1968.9. The deceased, William Lindsay, father of Plaintiff, James West Lindsay, was interred at Defendant cemetery immediately after becoming deceased on or about August 20, 1986.\n10. The deceased, Rebecca Grier, mother of Plaintiff, Montez Nelson, was interred at Defendant cemetery immediately after becoming deceased on or about February 19, 2003.\n11. The deceased, James Grier, father of Plaintiff, Montez Nelson, was interred at Defendant cemetery immediately after becoming deceased on or about November 8, 2006.\nPlaintiffs further allege that\nDefendants have failed to maintain proper burial records from at least on or about July 28, 1968, to the present time, thereby causing the Plaintiffs^] decedents and numerous decedents of all other persons similarly situated as the Plaintiffs[\u2019] decedents to be buried at the wrong burial sites and causing grave markers to be placed at the wrong burial sites. Additionally, from at least July 28, 1968 to the present time, these Defendants have sold the same burial plot contracted for by one party to other parties ... thereby causing the same burial plot to be sold to multiple persons, in violation of the laws of the State of North Carolina, as well as the terms of each parties respective contract, (emphasis added).\nHere, the complaint generally alleges that the breach of contract occurred on the dates of interment, respectively. These dates are well outside of the three year statute of limitations for breach of contract claims. Even if we assume that the date of interment for each decedent controls as the date of breach of contract, as Defendants acknowledge, the statute of limitations would have expired as to all claims, except Mr. Grier. Because the trial court found that the breach of contract claim was barred by the statute of limitations, and Plaintiffs\u2019 argument is unsupported by authority, we affirm the trial court\u2019s determination that the breach of contract claim, except as to Mr. Grier, is barred by the statute of limitations.\nAdditionally, the trial court also properly dismissed Plaintiffs\u2019 breach of contract claims for failure to state a claim. It is well-settled that a \u201cviolation of a statute designed to protect persons or property is a negligent act, and if such negligence proximately causes injury, the violator is liable. This is an appropriate allegation on the first cause of action based on negligence and not on the second based on breach of contract.\u201d Murray v. Aircraft Corporation, 259 N.C. 638, 642, 131 S.E.2d 367, 370 (1963) (internal citations omitted). Here, Plaintiffs allege that violation of N.C. Gen. Stat. \u00a7 65-60 is the basis for their breach of contract claims. Because a violation of the statute is not the proper basis for a breach of contract claim, all Plaintiffs\u2019 breach of contract claims for failure to maintain records, including Mr. Grier, were properly dismissed.\nFinally, the breach of contract claims were properly dismissed because the allegations failed to provide even general terms of the contract which were necessary to determine whether a breach occurred. See Claggett v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997) (\u201cTo state a claim for breach of contract, the complaint must allege that a valid contract existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach.\u201d) Accordingly, we affirm the trial court\u2019s dismissal of Plaintiffs\u2019 breach of contract claims.\nPlaintiffs also contend that the trial court erred in dismissing their claim for breach of contract based on third-party beneficiary. For the same reasons stated above, we overrule Plaintiffs\u2019 third party beneficiary claim.\nNext, Plaintiffs argue that the trial court erred by dismissing their claim of fraud upon the public for failure to state a claim. We disagree. As the trial court stated, fraud upon the public is not a recognized theory of recovery under North Carolina law. See Gilmore v. Smathers, 167 N.C. 440, 83 S.E. 823 (1914). Therefore, Plaintiffs\u2019 argument is meritless.\nPlaintiffs also argue that the trial court committed reversible error when it determined that Plaintiffs did not allege a valid claim for relief for common law fraud. We disagree.\nPlaintiffs argue that they pled common law fraud with particularity in their complaint and that their claim for fraud was not time-barred by the statute of limitations because accrual of time starts at the time of discovery of the fraudulent conduct by the aggrieved party.\nTo allege a claim for fraud, a plaintiff must plead: \u201c(1) [a] [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.\u201d Isbey v. Cooper Companies, Inc., 103 N.C. App. 774, 776, 407 S.E.2d 254, 256 (1991). \u201cIn all averments of fraud . . . the circumstances constituting fraud... shall be stated with particularity.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 9(b) (2011). Our Supreme Court has held that the particularity requirement is satisfied \u201cby alleging time, place and content of the fraudulent representation, identity of the person making the representation and what was obtained as a result of the fraudulent acts or representations.\u201d Terry v. Terry, 302 N.C. 77, 85, 273 S.E.2d 674, 678 (1981). Our Supreme Court has construed N.C. Gen. Stat. \u00a7 1-52(9) \u201cto set accrual at the time of discovery regardless of the length of time between the fraudulent act or mistake and plaintiffs discovery of it.\u201d Feibus & Co. v. Godley Construction Co. 301 N.C. 294, 304, 271 S.E.2d 385, 392 (1980). \u201cUnder this provision, \u2018discovery\u2019 means either actual discovery or when the fraud should have been discovered in the exercise of reasonable diligence.\u201d State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 547, 589 S.E.2d 391, 396 (2003) (citation omitted).\nIn the case sub judice, Plaintiffs made the following allegations in their amended complaint:\n44. That the acts of the Defendants in providing incorrect [] burial maps to the plaintiffs . . . have been and continue to be intentional, willful and with malice aforethought to cause the Plaintiffs to rely to their detriment.\n45. The Plaintiffs . . . have been damaged based upon these false representations because the Defendants have buried the decedents of Plaintiffs ... in plots other than the burial sites which were purchased by the decedents of Plaintiffs[.]\n49. That these Defendants made these false statements and misrepresentations with the intent to cause all persons who purchased the burial plots to enter into said contract. . . from the Defendants based upon the false statements and material misrepresentations.\n50. That the persons who purchased said burial plots from Defendants and all other similarly situated person did in fact rely upon the false statements and material misrepresentations of the Defendants.\nThese allegations are very general and are not alleged with the required particularity where Plaintiffs failed to state (1) the time, place, or content of the misrepresentations; (2) the particular person making the misrepresentation; and (3) whether Plaintiffs relied on these misrepresentations. Plaintiffs failed to properly allege the fraud claim with particularity, and this assignment is overruled.\nPlaintiffs argue that the trial court erred in dismissing their claim for unfair and deceptive trade practices where Defendants (1) failed to place stakes at gravesites to establish proper boundaries, (2) failed to keep proper records to determine where decedents were buried, (3) lost headstones from graves, (4) could not establish where decedents were buried, and (5) \u201chave engaged in conduct . . . forbidden under [N.C. Gen. Stat. \u00a7 75-1.1].\u201d\n\u201cTo state a claim for unfair and/or deceptive trade practices, the plaintiffs must allege that (1) the defendants committed an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiffs or to the plaintiffs\u2019 business.\u201d Walker v. Sloan, 137 N.C. App. 387, 395 529 S.E.2d 236, 243 (2000) (citation omitted). [I]t is well recognized that actions for unfair or deceptive trade practices are distinct from actions for breach of contract, and that a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under [N.C. Gen. Stat.] \u00a7 75-1.1.\u201d Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C. App. 360, 367-68, 533 S.E.2d 827, 832-33 (2000). \u201cNorth Carolina courts are extremely hesitant to allow plaintiffs to attempt to manufacture a tort action and alleged UDTP out of facts that are properly alleged as breach of contract claim.\u201d Jones v. Harrelson & Smith Contr\u2019rs, LLC, 194 N.C. App. 203, 229, 670 S.E.2d 242, 259 (2008) (citation omitted).\nHere, Plaintiffs failed to establish the existence of contracts between the Plaintiffs and Defendants and, have thus failed to show a breach of contract. Even assuming arguendo that Defendants breached these contracts, \u201ca mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.G.S. \u00a7 75-1.1.\u201d Watson Elec. Constr. Co. v. Summit Cos., 160 N.C. App. 647, 657, 587 S.E.2d 87, 95 (2003) (internal quotation marks and citation omitted). \u201c[P]laintiff[s] must show substantial aggravating circumstances attending the breach to recover under the Act.\u201d Id. As Plaintiffs do not allege substantial aggravating circumstances, the trial, court properly dismissed Plaintiffs unfair and deceptive trade practices claim.\nFor the foregoing reasons, we affirm the trial court\u2019s dismissal of the claims of negligence breach of contract, fraud, fraud upon the public, and unfair and deceptive trade practices.\n' Affirmed.\nJudges BRYANT and GEER concur.",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "Pamela A. Hunter, for Plaintiff-Appellants.",
      "Moore and Van Allen, PLLC, by M. Cabell Clay, Anthony T. Lathrop and Alton L. Gwaltney, III, for Defendant-Appellee."
    ],
    "corrections": "",
    "head_matter": "PATRICIA COLYER BIRTHA, as administratrix of the Estate of SARAH LENON COLYER; deceased, JAMES WEST LINDSAY, as administrator of the Estate of LOTTIE MAE LINDSAY and WILLIAM LINDSAY, deceased, MONTEZZ NELSON, next of kin of REBECCA GRIER and JAMES GRIER, deceased on behalf of themselves and all other persons similarly situated, Plaintiffs v. STONEMOR, NORTH CAROLINA, LLC, STONEMOR, NORTH CAROLINA FUNERAL SERVICES, INC., STONEMOR, NORTH CAROLINA SUBSIDIARY, LLC, ALDERWOODS GROUP, INC., SERVICE CORPORATION INTERNATIONAL, a/k/a SCI, d/b/a York Memorial Cemetery, Defendants\nNo. COA11-79\n(Filed 1 May 2012)\n1. Jurisdiction \u2014 personal\u2014insufficient minimum contacts\u2014 defendant properly dismissed\nThe trial court did not commit reversible error in a negligence, breach of contract, fraud, fraud upon the public, and unfair and deceptive trade practices case when it dismissed defendant SCI from the suit for lack of personal jurisdiction. Plaintiffs failed to allege facts that permitted the inference of jurisdiction under the long-arm statute.\n2. Statutes of Limitation and Repose \u2014 continuing wrong doctrine \u2014 discovery rule \u2014 duty to support negligence claim not established\nThe trial court did not err by granting defendants\u2019 motion to dismiss claims of negligence, fraud, and breach of contract. As neither the continuing wrong doctrine nor the discovery rule were applicable to plaintiffs\u2019 claims, a majority of the claims were barred by the statute of limitations. Moreover, plaintiffs\u2019 argumerit that N.C.G.S. \u00a7 65-60 established the duty supporting both their common law negligence and negligence per se claims was rejected.\n3. Contracts \u2014 breach of contract \u2014 filed outside statute of limitations \u2014 improper basis \u2014 insufficient allegations\u2014 third-party beneficiary claims\nThe trial court did not err when it dismissed plaintiffs\u2019 claims for breach of contract. The claims were filed outside the statute of limitations, violation of N.C.G.S. \u00a7 65-60 was not the proper basis for plaintiff\u2019s breach of contract claims, and the allegations failed to provide even general terms of the contract which were necessary to determine whether a breach occurred. Plaintiffs\u2019 claims for breach of contract based on a theory of third-party beneficiary were properly dismissed for the same reasons.\n4. Fraud \u2014 upon the public \u2014 not recognized theory \u2014 properly dismissed\nThe trial court did not err by dismissing plaintiffs\u2019 claim of fraud upon the public for failure to state a claim. Fraud upon the public is not a recognized theory of recovery under North Carolina law.\n5. Fraud \u2014 common law \u2014 failure to allege claim with particularity \u2014 properly dismissed\nThe trial court did not err by dismissing plaintiffs\u2019 claim for common law fraud because plaintiffs failed to properly allege the fraud claim with particularity.\n6. Unfair Trade Practices \u2014 breach of contract not sufficient to establish claim \u2014 failure to allege aggravating circumstances\nThe trial court did not err in dismissing plaintiffs\u2019 claim for unfair and deceptive trade practices. A mere breach of contract, even if intentional, was not sufficiently unfair or deceptive to sustain an action under N.C.G.S. \u00a7 75-1.1 and plaintiffs failed to allege substantial aggravating circumstances.\nAppeal by Plaintiffs from order entered 29 July 2010 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 August 2011.\nPamela A. Hunter, for Plaintiff-Appellants.\nMoore and Van Allen, PLLC, by M. Cabell Clay, Anthony T. Lathrop and Alton L. Gwaltney, III, for Defendant-Appellee."
  },
  "file_name": "0286-01",
  "first_page_order": 296,
  "last_page_order": 308
}