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NO. COA12-517 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012

SHANE CODERRE and NORTH AMERICAN LAND ACQUISITIONS, INC., Plaintiffs v. GILBERT E. FUTRELL and wife NANCY G. FUTRELL, DALE FUTRELL and wife GLENDA J. FUTRELL INDIVIDUALLY and under the will of PEARL THAYER FUTRELL AND J. DALE FUTRELL, Defendants New Hanover County No. 11 CVS 645

1.

Pleadings -- amended complaint -- no complaint invalid -- no relation back

standing

--

original

The trial court did not err in a breach of contract and attorney fees case by dismissing plaintiff's amended complaint. Since plaintiff lacked standing to file the initial complaint, it was a nullity. Without standing to bring the initial complaint, there was no valid complaint to which the amended complaint could relate back. 2. Contract -- breach of contract -- bankruptcy filing -- statute of limitation not tolled -- statute of limitations expired The trial court did not err in a breach of contract and attorney fees case by dismissing plaintiff's amended complaint. Plaintiff's bankruptcy filing did not toll the statute of limitations on its breach of contract claim and plaintiff failed to file the claim prior to the expiration of the statute of limitations.

NO. COA12-517 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012

SHANE CODERRE and NORTH AMERICAN LAND ACQUISITIONS, INC., Plaintiffs v. GILBERT E. FUTRELL and wife NANCY G. FUTRELL, DALE FUTRELL and wife GLENDA J. FUTRELL INDIVIDUALLY and under the will of PEARL THAYER FUTRELL AND J. DALE FUTRELL, Defendants New Hanover County No. 11 CVS 645

Appeal by plaintiffs from order entered 11 December 2011 by Judge John E. Nobles, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 26 September 2012. William T. Batchelor, II, Attorney at Law, for plaintiffappellants. Brooks, Pierce, McLendon, Humphrey and Leonard, L.L.P., by Katherine J. Clayton, for defendant-appellees. CALABRIA, Judge. Shane Coderre Inc. ("Coderre") and North American Land appeal

Acquisitions,

("NALA")(collectively

"plaintiffs")

the trial court's order dismissing plaintiffs' claims against Gilbert E. Futrell, Futrell, individually Nancy G. Futrell, Dale Futrell, Glenda J. and under the will of Pearl Thayer

-2Futrell, and J. Dale Futrell (collectively "defendants"). affirm. I. On 18 August 2005, Background NALA, a North Carolina corporation, We

executed a purchase agreement ("the purchase agreement") with defendants for the acquisition of 200 acres of land located in Montgomery County, North Carolina ("the property"). NALA paid

$1 million towards the $7 million purchase price and financed the remainder of the purchase by executing a promissory note secured by a deed of trust in favor of defendants in the amount of $6 million. According to the purchase agreement, defendants would

release 60 acres of the property from the deed of trust so long as NALA paid defendants $2 million by 25 August 2006. When NALA

had not made this payment by 16 August 2006, defendants modified the purchase agreement and deferred the date for NALA's $2

million payment to 25 August 2007.

However, NALA failed to pay

by the deferred date stated in the modification. In February 2008, Thomas Simpson, as President of NALA, sought and secured financing for $2 million from Cambridge

Holdings Group.

On 1 April 2008, NALA attempted to tender the However, since NALA was in default

$2 million to defendants.

-3for failing to make required monthly payments of principle and interest, defendants refused to accept the $2 million payment. Defendants directed the trustee of the deed of trust to initiate foreclosure proceedings. The foreclosure sale was held at the courthouse door of the Montgomery County Courthouse on 2 July 2008. Defendants

successfully bid on the property. Prior to the recordation into of a the new

There were no upset bids. foreclosure agreement agreed deed, ("the to NALA and

defendants agreement").

entered

30-day postpone

Specifically,

defendants

recordation of the deed if NALA paid all principal and interest in arrears under the note within 30 days. Upon payment,

defendants agreed to assign NALA their successful foreclosure bid on the property. On 12 August 2008, one day before the 30-

day agreement was scheduled to expire, NALA voluntarily filed a petition for relief under Chapter 11 of the United States

Bankruptcy Code. The United States Bankruptcy Court for the Eastern District of North Carolina 30-day ("the Bankruptcy and Court") its allowed default NALA to the

assume

the

agreement

cure

under

agreement by 15 November 2008. extended until 18 January 2009,

Although this deadline was later NALA was still unable to assume

-4the 30-day agreement at that time. As a result, NALA filed a

motion for its case to be converted to a Chapter 7 bankruptcy. The Bankruptcy Court granted NALA's motion on 5 February 2009. On 11 February 2011, while NALA's bankruptcy case was still pending, Coderre, one of NALA's shareholders, filed an action against defendants for breach of contract and attorney's fees in New Hanover County Superior Court ("the initial complaint"). 7 June 2011, NALA was released from bankruptcy. On

On 13 June

2011, defendants filed a motion to dismiss the initial complaint pursuant to N.C. Gen. Stat.

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