{ "id": 8521638, "name": "RING DRUG COMPANY, INC., d/b/a BOBBITT'S PHARMACIES and MEDICAL SERVICE COMPANY v. CAROLINA MEDICORP ENTERPRISES, INC., FORSYTH MEMORIAL HOSPITAL, INC., BLUMENTHAL JEWISH HOME FOR THE AGED, INC., ALCO STANDARD CORPORATION, d/b/a JUSTICE DRUG COMPANY, CAROLINA MEDICORP, INC., and SALEM HEALTH SERVICES, INC.", "name_abbreviation": "Ring Drug Co. v. Carolina Medicorp Enterprises, Inc.", "decision_date": "1989-11-21", "docket_number": "No. 8921SC175", "first_page": "277", "last_page": "286", "citations": [ { "type": "official", "cite": "96 N.C. App. 277" } ], "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": "477 U.S. 21", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202809 ], "opinion_index": -1, "case_paths": [ "/us/477/0021-01" ] }, { "cite": "268 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549432 ], "year": 1980, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0155-01" ] }, { "cite": "266 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "349 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735119, 4739281, 4734322, 4737843, 4736856 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0511-03", "/nc/318/0511-01", "/nc/318/0511-02", "/nc/318/0511-05", "/nc/318/0511-04" ] }, { "cite": "346 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "184" }, { "page": "181" }, { "page": "183" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358922 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "354" }, { "page": "352" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0350-01" ] }, { "cite": "245 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "560" }, { "page": "560" }, { "page": "560" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551649 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "212-13" }, { "page": "213" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0210-01" ] }, { "cite": "189 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 736", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553394 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0736-01" ] }, { "cite": "171 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "884" } ], "opinion_index": 0 }, { "cite": "276 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560788 ], "year": 1970, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0198-01" ] }, { "cite": "188 S.E. 321", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "page": "322", "parenthetical": "accrual in breach-of-contract action occurs at time of breach" } ], "opinion_index": 0 }, { "cite": "210 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628899 ], "year": 1936, "pin_cites": [ { "page": "740", "parenthetical": "accrual in breach-of-contract action occurs at time of breach" } ], "opinion_index": 0, "case_paths": [ "/nc/210/0739-01" ] }, { "cite": "618 F.Supp. 884", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3801017 ], "year": 1985, "pin_cites": [ { "page": "902-03" } ], "opinion_index": 0, "case_paths": [ "/f-supp/618/0884-01" ] }, { "cite": "310 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523200 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0110-01" ] }, { "cite": "477 U.S. 21", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202809 ], "weight": 2, "pin_cites": [ { "page": "29" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/us/477/0021-01" ] } ], "analysis": { "cardinality": 836, "char_count": 21913, "ocr_confidence": 0.761, "pagerank": { "raw": 2.1297561699014292e-07, "percentile": 0.7656405836788168 }, "sha256": "f10334072aaf69d9c3df0fe46e3aeb410a2ebe8fb235ca38c080887c401ac48c", "simhash": "1:00ebbf2e14297ef0", "word_count": 3498 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "RING DRUG COMPANY, INC., D/B/A BOBBITT\u2019S PHARMACIES and MEDICAL SERVICE COMPANY v. CAROLINA MEDICORP ENTERPRISES, INC., FORSYTH MEMORIAL HOSPITAL, INC., BLUMENTHAL JEWISH HOME FOR THE AGED, INC., ALCO STANDARD CORPORATION, d/b/a JUSTICE DRUG COMPANY, CAROLINA MEDICORP, INC., and SALEM HEALTH SERVICES, INC." ], "opinions": [ { "text": "BECTON, Judge.\nIn this action for unfair trade practices, plaintiff alleges that defendants caused the termination of a contract for pharmaceutical supplies between plaintiff and defendant Blumenthal Jewish Home for the Aged, Inc. The trial judge allowed the motion by defendant Salem Health Services, Inc., to dismiss the complaint, or, in the alternative, for summary judgment, on the ground that the statute of limitations had expired prior to Salem Health\u2019s becoming a party to the action. The judge also allowed summary judgment in favor of defendants Carolina Medicorp, Inc., Carolina Medicorp Enterprises, Inc., and Forsyth Memorial Hospital on the ground that \u201cthose corporations were not participants in the contractual arrangements between Blumenthal . . . and Salem Health Services . . . .\u201d Final judgment was certified, and plaintiff appealed. We affirm.\nI\nPlaintiff, Ring Drug Company, Inc., d/b/a Bobbitt\u2019s Pharmacies and Medical Service Company (\u201cBobbitt\u201d), is a retail pharmacy which offers services to nursing homes. Defendant Carolina Medicorp, Inc. (\u201cMedicorp\u201d), is the sole owner and parent corporation of Carolina Medicorp Enterprises, Inc. (\u201cCarolina Enterprises\u201d), Forsyth Memorial Hospital (\u201cForsyth\u201d), and Salem Health Services (\u201cSalem Health\u201d). Paul Wiles is the chief executive officer for both Medicorp and Forsyth, and he is the registered agent for all four defendants. Additionally, Carolina Enterprises and Salem Health share the same president and chief executive officer.\nFrom 1968 until 1 September 1984, Bobbitt was the exclusive provider of prescription medicines to defendant Blumenthal Jewish Home for the Aged, Inc. (\u201cBlumenthal\u201d). Bobbitt and Blumenthal had a contractual relationship terminable by either party upon 30-days\u2019 notice. In March 1984, Bobbitt informed Blumenthal that the former would be unable to provide service to an on-site pharmacy that Blumenthal wished to establish. On 17 Jiily 1984, Blumenthal\u2019s director notified Bobbitt by mail that the contract between the two parties would terminate on 1 September.\nBobbitt alleges that Medicorp and its subsidiaries used preferential pricing that Forsyth, as a hospital, received from drug manufacturers to unfairly compete with Bobbitt for the Blumenthal contract, in violation of N.C. Gen. Stat. ch. 75, forbidding unfair trade practices. On 2 August 1988, following an extension of time in which to file its complaint, Bobbitt instituted this action against, among other defendants, Carolina Enterprises and Forsyth. Bobbitt did not initially name Medicorp nor Salem Health as parties to the action. The complaint was served on Paul Wiles, the registered agent, on 8 August 1988.\nOn 23 September 1988, Bobbitt amended its complaint, seeking to add Medicorp and Salem Health as defendants. The amended complaint was served on Mr. Wiles on 26 September. Subsequently, Medicorp and Salem Health moved to dismiss the complaint, or, alternatively, for summary judgment, on the ground that the complaint had not been timely filed. The judge allowed the motion as to Salem Health but denied it as to Medicorp. The judge granted summary judgment for Medicorp, Carolina Enterprises, and Forsyth, on the ground that those defendants did not engage in the sale of prescriptions to Blumenthal. Allegedly, Salem Health had engaged in all the dealings with Blumenthal.\nII\nBobbitt first assigns error to the trial judge\u2019s allowing Salem Health\u2019s motion to dismiss. Bobbitt contends that the amended complaint relates back to the time the original complaint was filed and that dismissal of Salem Health as a party was thus improper. Salem Health argues that the original complaint was not filed within the applicable limitations period and that, alternatively, a complaint may not be amended to add additional parties.\nA. Statute of Limitations\nA claim for unfair trade practice must be commenced within four years after the cause of action accrues. N.C. Gen. Stat. Sec. 75-16.2 (1988). Initially, we must determine when Bobbitt\u2019s cause of action can be said to have \u201caccrued.\u201d Bobbitt argues that the statute began to run on 1 September 1984, the date Blumenthal\u2019s termination of the contract took effect. Defendants contend that the alleged conspiratorial activities, if any, were substantially completed by March 1984 and that, in any event, Bobbitt was on notice that its relationship with Blumenthal was threatened when Bobbitt received the 17 July 1984 letter from Blumenthal.\nIn Patterson v. DAC Corp., 66 N.C. App. 110, 310 S.E.2d 783 (1984), this Court said that the statute of limitations for a claim of unfair trade practice based on misrepresentation began to run at the time the alleged fraudulent statements induced plaintiff to execute a note and deed of trust. Patterson was cited by a federal district court for the proposition that \u201c[a] cause of action \u2018accrues\u2019 [under chapter 75] when the alleged violation occurs.\u201d United States v. Ward, 618 F.Supp. 884, 902-03 (E.D.N.C. 1985).\nBobbitt in essence contends that the violation occurred on the day that Blumenthal ceased its performance of the contract. Defendants argue that Bobbitt has incorrectly applied a breach-of-contract theory to a case in which no breach has occurred. See Craig v. Price, 210 N.C. 739, 740, 188 S.E. 321, 322 (1936) (accrual in breach-of-contract action occurs at time of breach). Defendants argue that, to the extent that Bobbitt\u2019s complaint is based on fraud, the action begins to accrue when the fraud is, or should have been, discovered. See Wilson v. Crab Orchard Dev. Co., 276 N.C. 198, 214, 171 S.E.2d 873, 884 (1970).\nIn our view, Bobbitt\u2019s complaint is most closely analogous to an action for breach of contract, and we hold that the cause of action began to accrue on 1 September 1984, the day Bobbitt\u2019s contract with Blumenthal terminated. We note in passing that our review of the record does not support defendants\u2019 assertion that Bobbitt had either actual or constructive notice in March 1984 of the alleged activity by defendants. Under a notice analysis, therefore, the earliest that the record would allow us to ascribe notice to Bobbitt would be 17 July 1984, the day it received notice of termination from Blumenthal. Because, on 14 July 1988, Bobbitt obtained an order extending time to file its complaint, Bobbitt\u2019s initial complaint would still have been timely under a notice theory.\nB, The Amended Complaint\nHaving held that Bobbitt\u2019s cause of action accrued on 1 September 1984, we now examine whether its complaint could be amended subsequently so as to add Medicorp and Salem Health as defendants. Unless \u201crelation back\u201d occurs, the statute of limitations is a defense for Medicorp and Salem Health.\nN.C. Gen. Stat. Sec. 1A-1, R. Civ. P. 15(c) (1983) states that \u201c[a] 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.\u201d On three occasions, this court has decided whether Rule 15(c) would permit a complaint to be amended to add a new party defendant after the limitations period had expired. In all three cases, this court decided the issue against the plaintiffs. See Teague v. Asheboro Motor Co., 14 N.C. App. 736, 189 S.E.2d 671 (1972); Callicutt v. American Honda Motor Co., Inc., 37 N.C. App. 210, 245 S.E.2d 558 (1978); Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986).\nIn Teague, an automobile dealership that plaintiff desired to sue had changed its name, and another company, operating from the same location, had adopted the original name. Plaintiff filed her complaint against the new company. After the limitations period had run, plaintiff attempted to amend her complaint to bring in the original corporation. We said that, under Rule 15(c), \u201cthe claim asserted in the amendment must be against one given notice in the original pleading . . . .\u201d 14 N.C. App. at 739, 189 S.E.2d at 673. Because the new party \u201cwas clearly not in court when the amended complaint was filed\u201d and had no knowledge of the litigation, we held that the amended complaint did not relate back to the period before the statute of limitations expired. Id.\nIn Callicutt, plaintiff alleged that defendant had both sold and manufactured a motorcycle on which plaintiff was injured. After the limitations period, defendant amended its answer and denied it had manufactured the vehicle. Plaintiff sought to amend its complaint to join the manufacturer. After discussing Teague, we held that the record in Callicutt did not reveal any evidence \u201cfrom which the trial court could have concluded that [the manufacturer] had notice of this action prior to plaintiffs motion to add it as a party defendant .... [n]or does the record reflect any relationship between defendant and [the manufacturer] to allow us to infer that notice on [defendant] was tantamount to notice on [the manufacturer].\u201d 37 N.C. App. at 212-13, 245 S.E.2d at 560.\nStevens involved a malpractice action brought originally against a partnership and against one of the partners individually. Seven years after the alleged tort occurred, plaintiff attempted to amend her complaint to add another partner individually. This partner had actual knowledge of the original suit. Noting that the issue in Stevens was one of first impression in this jurisdiction, we examined decisions from New York \u2014 after whose Civil Practice Law and Rules our Rule 15(c) is modeled, 82 N.C. App. at 354, 346 S.E.2d at 182 \u2014and the federal courts. We held, ultimately, that the statute of limitations was a bar to plaintiffs amendment because 1) plaintiff chose not to sue the partner individually when she filed the initial complaint, 2) plaintiffs delay of seven years before adding the partner in an individual capacity clearly prejudiced him, 3) the partner\u2019s participation in the suit had not misled plaintiff with regard to his liability, and 4) N.C. Gen. Stat. Sec. 1A-1, R. Civ. P. 4(j)(b)(7) (1983) requires that a partner be served with summons before he is bound beyond his partnership assets. Id. at 357, 346 S.E.2d at 184.\nWe determine from these cases that whether a complaint will relate back with respect to a party defendant added after the applicable limitations period depends upon whether that new defendant had notice of the claim so as not to be prejudiced by the untimely amendment. If some nexus among defendants will permit the trial judge to infer that the new defendant had notice of the original claim so as not to be prejudiced by the amendment, Callicutt, 37 N.C. App. at 213, 245 S.E.2d at 560, Rule 15(c) will allow a complaint to be amended so as to add a new party, expiration of the limitations period notwithstanding. The statute of limitations should furnish the defendant a bar, however, when a plaintiffs use of Rule 15(c) would circumvent any other procedural requirement, see Stevens, 82 N.C. App. at 352, 346 S.E.2d at 181, or when the plaintiff\u2019s failure to name the defendant originally is solely attributable to the plaintiff.\nIn light of the foregoing, we adopt the federal test, discussed at length in Stevens but not explicitly relied upon in that case, for determining when a party defendant may be added after the limitations period has run. Relation back will occur under the federal rule when 1) the basic claim. arises out of the conduct set forth in the original pleading, 2) the party to be brought in receives such notice that it will not be prejudiced in maintaining its defense, 3) the party knows or should have known that, but for a mistake concerning identity, the action would have been brought against it, and 4) the second and third requirements are fulfilled within the prescribed limitations period. Schiavone v. Fortune, 477 U.S. 21, 29, 91 L.Ed.2d 18, 27 (1986).\nApplying the federal test to the present case, we hold that the trial judge correctly ruled that relation back occurred as regarded Medicorp and did not occur in the case of Salem Health. The claim against Medicorp arose from the same conduct alleged in the original complaint. Because Medicorp is the parent corporation and sole owner of Carolina Enterprises and Forsyth, with the same registered agent as its subsidiaries, the same chief executive officer as Forsyth, and is engaged in the same type of enterprise as Forsyth and Carolina Enterprises, Medicorp\u2019s \u201cidentity of interest\u201d with the originally-named defendants permitted the trial judge to find that Medicorp had such actual or constructive notice of the litigation that it would not be prejudiced in its defense. See Callicutt, 37 N.C. App. at 213, 245 S.E.2d at 560; Stevens, 82 N.C. App. at 356, 346 S.E.2d at 183; see also, C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1499 (Supp. 1989).\nBobbitt alleges that it failed to name Medicorp originally as the consequence of information supplied it by the Office of the Secretary of State that led Bobbitt to believe that \u201cCarolina Medicorp Enterprises, Inc.\u201d was the full name of Medicorp. The record indicates that, as of 9 February 1988, defendants\u2019 lawyer was aware that Bobbitt believed that \u201cCarolina Medicorp, Inc., or one of its subsidiaries\u201d operated the in-house pharmacy at Blumenthal. Medicorp knew or should have known, therefore, that but for a mistake, it would have been named in the original complaint. Relation back, therefore, was proper in the case of Medicorp.\nThe same result does not obtain respecting Bobbitt\u2019s efforts to join Salem Health. Bobbitt contends it did not name Salem Health originally because \u201cit was not clear that [Salem Health] was anything but a subdivision or arm of the other \u2018hospital\u2019 defendants.\u201d Bobbitt\u2019s lawyer, however, received a copy of a letter written 1 March 1988 in which defendants\u2019 lawyer asked a drug company for information as to \u201cwhether or not Salem Health Services got the benefit of any of the contracts [Medicorp] or [Forsyth] had with the manufacturers.\u201d We agree with defendants that the record does not demonstrate that Bobbitt\u2019s failure to name Salem Health resulted from a \u201cmistake\u201d concerning identity; rather it shows simply an unjustified failure by Bobbitt to name Salem Health in a timely fashion. Salem Health, therefore, could properly assert the statute of limitations as a plea in bar to Bobbitt\u2019s effort to join it to the action, and the trial judge did not err in dismissing Salem Health as a party. We overrule this assignment of error.\nBobbitt has additionally alleged that the judge should have exercised his discretion, pursuant to N.C. Gen. Stat. Sec. 1A-1, R. Civ. P. 6(b) (1983), to retroactively extend time for issuance of the summons and service on Salem Health because Bobbitt\u2019s failure to name Salem Health resulted from \u201cexcusable neglect.\u201d We reject, at the outset, Bobbitt\u2019s assertion that its neglect was \u201cexcusable,\u201d and we do not address its argument further. This assignment of error is overruled.\nIll\nBobbitt assigns error to the trial judge\u2019s granting summary judgment for Medicorp, Carolina Enterprises, and Forsyth. Bobbitt alleges that several genuine issues of material fact still exist in this case, and that there is a need for further discovery concerning these questions. Defendants argue that each of the three counts contained in Bobbitt\u2019s complaint is based upon actions allegedly taken by defendants relating to the provision of pharmaceutical services to Blumenthal but that the evidence in the record demonstrates that only Salem Health had any dealings with Blumenthal. Medicorp, Carolina Enterprises, and Forsyth argue, therefore, that summary judgment was appropriate as to them.\nSummary judgment is proper only when 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 the moving party is entitled to judgment as a matter of law. E.g., Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). The remedy of summary judgment should be awarded only when the truth is clear. E.g., Volkman v. DP Assocs., 48 N.C. App. 155, 157, 268 S.E.2d 265, 267 (1980).\nDefendants\u2019 affidavits aver that Blumenthal approached Salem Health to discuss having the latter provide pharmaceutical supplies because Blumenthal was dissatisfied with services provided by Bobbitt. The forecast of defendants\u2019 evidence further shows that Salem Health purchased the pharmaceuticals it sold to Blumenthal, and that Medicorp and Forsyth were never parties to the contract.\nA letter from Bobbitt\u2019s lawyer to defendants\u2019 lawyer is attached to the affidavit of Ernest J. Rabil, Bobbitt\u2019s president. The letter says in part that, in 1985, Mr. Rabil inquired of an employee of \u201ceither Carolina Medicorp or Forsyth Hospital\u201d how \u201cC\u00e1rolina Medicorp\u201d was able to service the Blumenthal pharmacy in a cost-effective manner. This employee allegedly responded that the service could be provided \u201cbecause of preferential hospital pricing.\u201d A 1 March 1988 letter written by defendants\u2019 lawyer to the drug company from which Salem Health allegedly purchased the pharmaceuticals asks that company \u201cwhether or not Salem Health Services got the benefit of any of the contracts [Medicorp] or [Forsyth] had with the manufacturers.\u201d The record contains no answer to this question.\nOur review of the record discloses no genuine issue of material fact as to the liability of these defendants. Bobbitt\u2019s forecast of the evidence does not demonstrate that defendants were involved to any extent with the Blumenthal contract. The evidence suggests only that Blumenthal\u2019s pharmacy may have been serviced in a cost-effective manner because of preferential pricing. Defendants\u2019 evidence shows that it was Salem Health, and not any of these defendants, which serviced the pharmacy and which purchased the pharmaceuticals it sold to Blumenthal. There is nothing in the record beyond Bobbitt\u2019s allegations to show that Salem Health received preferential pricing because of the involvement of defendants. We hold, therefore, that the judge\u2019s entry of summary judgment was correct.\nIV\nFor the foregoing reasons, the judgment of the trial court is\nAffirmed.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Moore and Brown, by B. Ervin Brown, II, and Bowden & Rabil, by S. Mark Rabil, for plaintiff-appellant.", "Womble, Carlyle, Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and Jeanne Schulte Scott, for defendant-appellees." ], "corrections": "", "head_matter": "RING DRUG COMPANY, INC., D/B/A BOBBITT\u2019S PHARMACIES and MEDICAL SERVICE COMPANY v. CAROLINA MEDICORP ENTERPRISES, INC., FORSYTH MEMORIAL HOSPITAL, INC., BLUMENTHAL JEWISH HOME FOR THE AGED, INC., ALCO STANDARD CORPORATION, d/b/a JUSTICE DRUG COMPANY, CAROLINA MEDICORP, INC., and SALEM HEALTH SERVICES, INC.\nNo. 8921SC175\n(Filed 21 November 1989)\n1. Limitation of Actions \u00a7 4 |NCI3d); Unfair Competition \u00a7 1 (NCI3d)\u2014 pharmaceutical supplies \u2014 unfair trade practices \u2014 termination of contract \u2014statute of limitations\nA claim for unfair trade practices arising from the termination of a contract for pharmaceutical supplies between plaintiff and defendant Blumenthal Jewish Home for the Aged, Inc., was most closely analogous to an action for breach of contract and accrued on the day the contract terminated, 1 September 1984. Even under a notice theory, the earliest that the record would allow notice to be ascribed to plaintiff would be 17 July 1984, and plaintiffs initial complaint would still have been timely under the four-year statute of limitation of N.C.G.S. \u00a7 75-16.2 because plaintiff obtained an order extending time to file its complaint on 14 July 1988.\nAm Jur 2d, Monopolies, Restraints of Trade and Unfair Trade Practices \u00a7\u00a7 633, 713.\n2. Limitation of Actions \u00a7 12.3 (NCI3d)\u2014 amendment of complaint \u2014 addition of parties \u2014 relation back\nIn an action for unfair trade practices arising from the termination of a contract to supply pharmaceutical supplies in which the complaint was amended to add Carolina Medicorp, Inc. and Salem Health Services, the trial court correctly ruled that relation back occurred as to Medicorp but did not occur as to Salem Health. Medicorp had such actual or constructive notice of litigation that it would not be prejudiced in its defense but the record did not demonstrate that plaintiff\u2019s failure to name Salem Health resulted from a mistake concerning identity; rather it shows an unjustified failure to name Salem Health in a timely fashion. The court adopted the federal test in Schiavone v. Fortune, 477 U.S. 21, for determining when a party defendant may be added after the limitations period has run. N.C.G.S. \u00a7 1A-1, Rule 15(c).\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 272, 273.\n3. Unfair Competition \u00a7 1 (NCI3d)\u2014 termination of contract for pharmaceutical supplies \u2014 preferential pricing \u2014 summary judgment proper\nThe trial court did not err by entering summary judgment as to Medicorp, Carolina Enterprises, and Forsyth in an action for unfair trade practices arising from the termination of a contract for pharmaceutical supplies between plaintiff and defend\u00e1nt Blumenthal Jewish Home for the Aged, Inc., where the forecast of defendants\u2019 evidence showed that it was Salem Health, and not any of these defendants, which serviced the pharmacy and which purchased the pharmaceuticals it sold to Blumenthal and there was nothing in the record beyond plaintiff\u2019s allegations to show that Salem Health received preferential pricing because of the involvement of defendants.\nAm Jur 2d, Monopolies, Restraints of Trade and Unfair Trade Practices \u00a7 409.\nAPPEAL by plaintiff from judgment entered 17 November 1988 in FORSYTH County Superior Court by Judge Thomas M. Ross. Heard in the Court of Appeals 9 October 1989.\nMoore and Brown, by B. Ervin Brown, II, and Bowden & Rabil, by S. Mark Rabil, for plaintiff-appellant.\nWomble, Carlyle, Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and Jeanne Schulte Scott, for defendant-appellees." }, "file_name": "0277-01", "first_page_order": 309, "last_page_order": 318 }