IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-314

Filed: 1 September 2020

Forsyth County, No. 09 CVS 2766

K2 ASIA VENTURES, Plaintiff,

v.

KRISPY KREME DOUGHNUT CORPORATION, AND KRISPY KREME 

DOUGHNUTS, INC., Defendants.

Appeal by plaintiff from order entered 13 November 2018 by Judge Anderson 

D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 7 

January 2020.

Broocks Law Firm, PLLC, by Ben C. Broocks, pro hac vice, and Blanco, 

Tackabery & Matamoros, P.A., by Chad A. Archer, and Peter J. Juran, for 

plaintiff-appellants.

Kilpatrick Townsend & Stockton LLP, by Adam H. Charnes, Jason M. Wenker, 

and Chris W. Haaf, for defendant-appellees.

BRYANT, Judge.

Where K2 Asia Ventures failed to establish that it was a real party in interest, 

we affirm the trial court’s 13 November 2018 order dismissing the action pursuant to 

Rules 17(a) and 41(b).

On 7 April 2009, in Forsyth County Superior Court, K2 Asia Ventures (“K2

Asia”), Ben C. Broocks, and James G.J. Crow filed a complaint (amended 7 February 

2011) against Robert Trota; Veronica Trota; Joselito Saludo; Carolyn T. Salud; 
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Roland V. Garcia; Cristina T. Garcia; Jim Fuentebella; Mavis Fuentebella; Sharon 

Fuentebella; Max’s Baclaran Inc.; Chickens R. Us, Inc.; Max’s Makati Inc.; Max’s 

Ermita, Inc.; Max’s of Manila, Inc.; The Real American Doughnut Company Inc.; Trofi 

Ventures, Inc.; Ruby Investment Company Holdings, Inc.; Krispy Kreme Doughnut 

Corporation; and Krispy Kreme Doughnut, Inc. Broocks and Crow were the 

principals of K2 Asia. K2 Asia’s company, whose principal place of business was in 

Austin, Texas, was founded to facilitate and promote the opening of Krispy Kreme 

Doughnuts franchises in Asia. Other than Krispy Kreme Doughnut Corporation and 

Krispy Kreme Doughnuts, Inc., (“Krispy Kreme”), a company whose principal place 

of business was in Winston-Salem, North Carolina, the other putative defendants 

were companies, company owners, or investment companies with business interests 

in the Philippines.

Per the amended complaint, K2 Asia was founded with the objective of bringing

Krispy Kreme’s franchises to countries in Asia. Believing that Krispy Kreme would 

require a partnership with a fast-food business operator in each of the target 

countries, plaintiff contacted representatives of a restaurant group––Max’s Group––

in regard to potential operations in the Philippines. Max’s Group was receptive to

the prospect of partnering with Krispy Kreme. K2 Asia enticed representatives of 

Krispy Kreme to travel to the Philippines and meet with representatives of Max’s 

Group. K2 Asia provided analysis concerning projected product pricing, product 
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volumes, ingredient costs, sources for potential alternative ingredients, and potential 

franchise locations. K2 Asia asserted that during negotiations, it was agreed that

should a Krispy Kreme franchise be granted to Max’s Group, K2 Asia would receive a 

management fee of one percent (1%) of the gross revenue and a ten percent (10%) 

equity interest in the operations (with 5% received after the third year and 5% 

received after the fifth year). Moreover, K2Asia would be granted the right to acquire

additional equity in exchange for contributing twenty-five percent (25%) of the 

budgeted capital requirements. In cooperation with Max’s Group, K2 Asia would be 

allowed to raise capital from outside investors. Eventually, Krispy Kreme granted 

K2 Asia exclusive rights to negotiate agreements for franchise rights in the 

Philippines (the “K2 Asia/Krispy Kreme Exclusivity Agreement”). Plans were 

developed to create a business entity known as “The Real American Doughnut 

Company, Inc.” between Krispy Kreme, Max’s Group, and K2 Asia. Max’s Group 

provided a “Memorandum of Understanding” (“MOU”) which documented the 

agreement between K2 Asia and Max’s Group with regard to K2 Asia’s interest in the 

yet to be formed “The Real American Doughnut Company, Inc.” The MOU recited 

the agreed-upon management fee (1%) but differed as to the previously agreed upon 

equity interest, which had been ten percent (10%). The MOU stated that K2 Asia’s

equity interest would be five percent (5%). It was also communicated that K2 Asia

need not immediately raise capital funds (which were to be in exchange for additional
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equity). Thereafter, Max’s Group communicated that K2 Asia would not be granted 

a management fee and would not receive any equity interest. K2 Asia alleged that 

the decision to forego paying K2 Asia the management fee and allowing K2 Asia an 

equity interest was based on the recommendation of Krispy Kreme.

Krispy Kreme and Max’s Group ultimately executed a development agreement

and a franchise agreement for Krispy Kreme franchises in the Philippines. The 

franchise agreement listed the ownership interests in Krispy Kreme Philippines 

franchises. K2 Asia did not receive an ownership interest. The Real American 

Doughnut Company, Inc., was formed, but K2 Asia was not included as an interested 

party. K2 Asia alleged that Krispy Kreme required that Max’s Group periodically pay

Krispy Kreme development fees, franchise fees, royalties, and other fees for each 

store; submit weekly sales reports for each store; submit annual development plans, 

sales forecasts, line item margin reviews, and marketing plans; and purchase certain 

mixes, products, equipment, and fixtures from Krispy Kreme. Representatives of 

Max’s Group traveled to North Carolina for training with Krispy Kreme in July 2006 

and for a franchise convention in 2007. K2 Asia contended that Max’s Group provided 

large monetary payments to Krispy Kreme and frequently communicated with 

representatives of Krispy Kreme regarding its ongoing business operations.

Per the complaint, K2 Asia, Broock, and Crow sought to recover monetary 

damages from Krispy Kreme based on theories of breach of contract; intentional 
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interference with a contractual relationship and/or prospective economic advantage; 

promissory estoppel; violation of principles of partnership, joint venture, and 

fiduciary duty; fraud, constructive fraud, and fraudulent inducement; unfair and 

deceptive trade practices; aiding and abetting breach of fiduciary duty; civil 

conspiracy; quantum meruit/unjust enrichment; and punitive damages.

Though the motions were not included in the record, court orders in the record 

state that Krispy Kreme moved to dismiss K2 Asia’s complaint. The trial court 

granted the motions in part. The court dismissed all claims asserted by individuals 

Broocks and Crow, as well as K2 Asia’s claims for fraud and unfair and deceptive 

trade practices against Krispy Kreme.

Krispy Kreme filed its answer to K2 Asia’s complaint on 11 April 2011.

Following a joint motion by Krispy Kreme and K2 Asia, on 23 September 2011, 

then Chief Justice Sarah Parker designated this matter as exceptional and assigned 

it to the Honorable Anderson Cromer, Superior Court Judge.

On 7 May 2015, Krispy Kreme filed a motion for summary judgment. In its 

brief filed in support of its motion for summary judgment, Krispy Kreme references 

an order of the trial court entered on 26 July 2013. Per Krispy Kreme (and 

acknowledged by K2 Asia) the trial court dismissed all non-resident defendants. Per

Krispy Kreme, by the 26 July 2013 order, the court “reduced the case to a few 
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remaining claims against Krispy Kreme by a purported company called ‘K2 Asia 

Ventures.’ ”

In its motion for summary judgment, Krispy Kreme contended that K2 Asia

lacked standing to bring a claim.

2. [K2 Asia] is not an entity that signed the purported 

contracts at issue, and the entities that signed those 

contracts are not parties to the suit.

3. Further, there is no evidence that [K2 Asia] exist[ed]. 

Indeed, there is no evidence that the entities that signed 

the purported contracts exist[ed].

More specifically, Krispy Kreme argued that the MOU—which documented the 

agreement between K2 Asia and Max’s Group with regard to K2 Asia’s interest in the 

then yet to be formed The Real American Doughnut Company, Inc.—was executed by 

“K2 Asia Ventures, Ltd., a limited partnership, by K2 Asia Management, LLC, general 

partner, by . . . Broocks, Member and Manager.” Krispy Kreme points out that in the

26 July 2013 order, the trial court found “neither K2 Asia Ventures, Ltd. nor K2 Asia 

Management LLC [wa]s a named plaintiff in this civil action.” As to K2 Asia’s claim 

against Krispy Kreme for breach of contract, Krispy Kreme argued that “the contract 

. . . which is referred to in the Amended Complaint as the ‘Exclusivity Agreement’—

also was executed by ‘K2 Asia Ventures, Ltd.’ ” Moreover, Krispy Kreme contended 

that the only evidence of the existence of K2 Asia related to an entity named K2 Asia 

Ventures G.P., a Cayman Island company, which was not a party to the civil suit. 
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Krispy Kreme argued that it was entitled to summary judgment on all claims because 

K2 Asia had failed to produce any evidence that it existed or had standing to bring 

the asserted claims.

On 28 May 2015, in response to Krispy Kreme’s motion for summary judgment, 

K2 Asia argued that it was a real party in interest.

o K2 Asia Ventures is K2 Asia Ventures G.P. [a Cayman 

Island company] and any failure to include the suffix 

“G.P.” in the caption was a misnomer;

o K2 Asia Ventures G.P. ratified the pre-incorporation 

[MOU], making it the proper party to sue on the claims 

that arise from such contract;

o K2 Asia Ventures G.P. is K2 Asia Ventures, Ltd.

o Krispy Kreme is judicially estopped from contending K2

Asia is not the real party in interest because it has 

admitted that K2 Asia exists and is the proper party to 

this litigation.

In all events, under North Carolina Rules of Civil 

Procedure and applicable case law, no action shall be 

dismissed on the ground that it is not prosecuted in the 

name of the real party in interest.

K2 Asia further contended that the Certificate of Incorporation for K2 Asia 

Ventures G.P., as well as a Memorandum & Articles of Association of K2 Asia 

Ventures G.P., had been provided to Krispy Kreme. K2 Asia acknowledged that at 

the time the MOU was executed, K2 Asia Ventures Ltd. did not exist. Broock, 

president of K2 Asia Ventures, “believed that he would, in the near future, create a 
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company called K2 Asia Ventures Ltd.” Based on this belief, Broock drafted the K2

Asia/Krispy Kreme Exclusivity Agreement using K2 Asia Ventures Ltd. as the name 

of the party to the agreement. However, when the Cayman Island entity was created,

it was incorporated as K2 Asia Ventures G.P., rather than K2 Asia Ventures Ltd. K2

Asia further acknowledged that “no such entity with the name of K2 Asia Ventures 

Ltd. was ever registered in the Cayman Islands.” Yet, K2 Asia argued that Krispy 

Kreme should be judicially estopped from arguing that K2 Asia did not have standing. 

Alternatively, K2 Asia argued that should the trial court rule K2 Asia was not a real 

party in interest, “a trial court should either correct [K2 Asia]’s error itself or refuse 

to hear the motion for summary judgment until the real party in interest is 

substituted for the plaintiff.”

Over three years later, on 13 November 2018, the trial court entered its order 

on Krispy Kreme’s motion for summary judgment. The court stated that it would not 

“substitute a party on its own motion or upon the invitation extended by [K2 Asia] in 

its brief before the trial court.” The court noted that the case had been pending since 

2009 and that K2 Asia had not filed a motion to substitute the Cayman Island 

company named K2 Asia Ventures G.P. as the real party in interest since 2009 or in 

the three years since Krispy Kreme raised a clear objection in 2015. The court found 

this delay not reasonable. 
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Considering Krispy Kreme’s motion for summary judgment made pursuant to 

Rule 56 as a motion to dismiss pursuant to Rule 41(b), 

[t]he [c]ourt interprets Krispy Kreme’s motion for 

summary judgment, described as a Rule 56 motion, as a 

motion for dismissal of the action brought by [K2 Asia] for 

failure to prosecute or to comply with the rules of civil 

procedure, namely failure to comply with Rule 17(a) and 

prosecute its claims in the name of the real party in 

interest. As such, the [c]ourt treats [Krispy Kreme’s] 

motion as one made under Rule 41(b). The [c]ourt finds 

and concludes that, based on the papers submitted and the 

protracted history of this case, K2 Asia Ventures (nothing 

else appearing), is not the real party in interest. However, 

the case will be dismissed without prejudice. It is the 

[c]ourt’s view that this result captures the spirit and letter 

of Rules 17(a) and 41(b) of the North Carolina Rules of Civil 

Procedure.

K2 Asia appeals.

__________________________________________________

On appeal, K2 Asia argues that the trial court erred by denying K2 Asia’s right 

to amend its complaint and failing to address the issue of misnomer.

Motion to Amend complaint

K2 Asia argues that the trial court erred by denying its motion to amend the 

complaint to reflect the real party in interest. K2 Asia contends that once Krispy 

Kreme moved for summary judgment on the basis that K2 Asia was not the real party 

in interest, K2 Asia moved the court to amend the complaint to reflect the real party 

in interest, but three years later, the trial court denied K2 Asia’s motion. We disagree.
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“[O]ur standard of review for motions to amend pleadings 

requires a showing that the trial court abused its 

discretion.” Delta Envtl. Consultants of N.C., Inc. v. Wysong 

& Miles Co., 132 N.C. App. 160, 165, 510 S.E.2d 690, 694

(1999). . . . Proper reasons for denying a motion to amend 

include undue delay, unfair prejudice, bad faith, futility of 

amendment, and repeated failure of the moving party to 

cure defects by other amendments. Delta, 132 N.C.App. at 

166, 510 S.E.2d at 694.

Revolutionary Concepts, Inc. v. Clements Walker PLLC, 227 N.C. App. 102, 110, 744 

S.E.2d 130, 136 (2013); see also Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 133–34, 

797 S.E.2d 354, 358 (2017) (“Where a case is not brought by the real party in interest, 

it is within the discretion of the trial court to allow a motion to substitute under Rule 

17(a)” (citation omitted)).

In Revolutionary Concepts, Inc., 227 N.C. App. 102, 744 S.E.2d 130, this Court 

considered whether the trial court erred in failing to permit the plaintiff (a postmerger surviving corporation) to substitute itself as the real party in interest 

pursuant to Rule 17 for the previous merging corporation—which had been a real 

party in interest. Prior to the merger, the merging corporation filed a complaint and 

voluntarily dismissed its claims pursuant to Rule 41(a). After the voluntary dismissal 

but prior to the merger, the would-be surviving corporation timely re-filed the claims 

the merging corporation had voluntarily dismissed. But at that time, the would-be 

surviving corporation lacked standing to do so. For more than three years following 

the merger, the merger surviving corporation failed to take any action to assert its 
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standing to bring the claims it had filed pre-merger on the basis that it was the 

survivor of the merging corporation—the real party in interest. “[W]ithout some 

action by [the surviving corporation] post-merger to assert those claims as the 

surviving entity of the merger, its claims brought in [pre-merger] do not 

automatically incorporate any claims [the merging corporation] could have brought 

but failed to do so simply by virtue of the merger.” Id. at 110, 744 S.E.2d at 136. 

Thus, the trial court denied the merger surviving corporation’s motion to substitute 

itself as the real party in interest pursuant to Rule 17. Id. at 112, 744 S.E.2d at 137. 

On appeal, this Court held that it

[could] discern no abuse of discretion in denying the Rule 

17 motion because [the] plaintiffs could have substituted 

[the] post-merger [company] at any point after the August 

2008 merger. However, they did not attempt to do so for 

over three years, until the hearing in January 2012. 

Although our Courts generally permit liberal amendment 

of pleadings, here, we believe that the trial court’s decision 

to not allow [the] post-merger [plaintiff] to be substituted 

as the real party in interest at the summary judgment 

hearing does not constitute an abuse of discretion. [The 

p]laintiffs have failed to offer any compelling reason why 

they failed to do so in a reasonable time after the merger. . 

. . Therefore, we conclude that the trial court did not abuse 

its discretion in denying [the plaintiffs’] motion to 

substitute itself as the real party in interest pursuant to 

Rule 17.

Id.; see also Street v. Smart Corp., 157 N.C. App. 303, 309, 578 S.E.2d 695, 700 (2003) 

(affirming a trial court’s dismissal of an action where the record reflected no attempt 

or request by the plaintiff to substitute the real party in interest where the plaintiff 
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“was aware of the real party in interest defense for approximately seven months 

before the hearing based on defendant’s answer and for approximately three weeks 

based on the motion to dismiss”); Narron v. Union Camp Corp., 81 N.C. App. 263, 

269, 344 S.E.2d 64, 68 (1986) (upholding the trial court’s dismissal of the action where 

the plaintiffs failed to prosecute their claims and the record reflected “a long history 

of foot-dragging by [the] plaintiffs”).

Here, the record reflects that on 7 May 2015, Krispy Kreme filed its motion for 

summary judgment and a brief in support of said motion. Krispy Kreme contended 

that K2 Asia lacked standing to bring the lawsuit because it was not a real party in 

interest in any of the claims asserted in the amended complaint. Moreover, K2 Asia

was not the entity which signed the K2 Asia/Krispy Kreme Exclusivity Agreement or 

the MOU. In its brief, Krispy Kreme referenced the trial court’s 26 July 2013 order 

in which the trial court made findings of fact that the MOU—which K2 Asia had 

described as the agreement between K2 Asia and Max’s Group—was executed by “K2

Asia Ventures, Ltd., a limited partnership, by K2 Asia Management, LLC, general 

partner, by . . . Broocks, Member and Manager” and that “neither K2 Asia Ventures, 

Ltd. nor K2 Asia Management LLC [wa]s a named plaintiff in this civil action.” As 

to K2 Asia’s claim(s) against Krispy Kreme based on the K2 Asia/Krispy Kreme 

Exclusivity Agreement—which K2 Asia described as the agreement in which Krispy 

Kreme granted K2 Asia exclusive rights to negotiate agreements for franchise rights 
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in the Philippines—Krispy Kreme argued that “the contract . . . which [wa]s referred 

to . . . as the ‘Exclusivity Agreement’—also was executed by ‘K2 Asia Ventures, Ltd.’ ” 

Moreover, Krispy Kreme contended that the only evidence of the existence of K2 Asia 

related to an entity named K2 Asia Ventures G.P., a Cayman Island company, which 

was not a party to the civil suit. Krispy Kreme argued that it was entitled to 

summary judgment on all claims because K2 Asia had failed to produce any evidence 

that K2 Asia Ventures existed.

On 28 May 2015, K2 Asia filed its brief in opposition to Krispy Kreme’s motion 

for summary judgment. In pertinent part, K2 Asia argued that if the trial court 

determined that K2 Asia was not a real party in interest, Krispy Kreme was still not 

entitled to summary judgment. K2 Asia quoted General Statutes, section 1A-1, Rule 

17(a), as follows: “[n]o action shall be dismissed on the ground that it is not 

prosecuted in the name of the real party in interest until a reasonable time 

has been allowed after objection for ratification of commencement of the action 

by, or joinder or substitution of, the real party in interest; and such ratification, 

joinder, or substitution shall have the same effect as if the action had been 

commenced in the name of the real party in interest.” After stating that “the 

court should order a continuance” to allow the real party in interest a reasonable time 

to be brought in and plead, K2 Asia asserted that 

[o]n a motion for summary judgment for lack of the real 

party in interest, a trial court should either correct [K2
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Asia]’s error itself or refuse to hear the motion for summary 

judgment until the real party in interest is substituted for 

the plaintiff.

. . . .

Therefore, even if the [c]ourt believes that K2 Asia 

Ventures is not the real party in interest in this action, 

pursuant to Rule 17, it must permit [the real party in 

interest] to be substituted in.

. . . .

. . . [I]n the event that the [c]ourt finds that K2 Asia 

Ventures is not the real party in interest, [K2 Asia] 

respectfully reserves its right to substitute K2 Asia 

Ventures G.P. as the real party in interest.

Over three years later, on 13 November 2018, the trial court entered its order 

in response to Krispy Kreme’s motion for summary judgment. The court noted that 

Krispy Kreme’s motion for summary judgment, filed 7 May 2015, raised the issue of 

what entity was the real party in interest; however, “[i]nterestingly, neither the 

named [K2 Asia] nor Defendant[ Krispy Kreme] have calendared the matter for 

hearing.” The court summarized K2 Asia’s arguments in opposition to Krispy Kreme’s 

motion as follows:

o K2 Asia Ventures is K2 Asia Ventures G.P. [a Cayman 

Island company incorporated on 30 July 2004] and any 

failure to include the suffix “G.P.” in the caption was a

misnomer;

o K2 Asia Ventures G.P. ratified the pre-incorporation 

[MOU], making it the proper party to sue on the claims 

that arise from such contract;
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o K2 Asia Ventures G.P. is K2 Asia Ventures, Ltd.

o Krispy Kreme is judicially estopped from contending K2

Asia is not the real party in interest because it has 

admitted that K2 Asia exists and is the property party 

to this litigation[.]

The court stated that upon its review of the arguments presented, “the primary basis 

for [K2 Asia]’s argument that K2 Asia Ventures is K2 Asia Ventures G.P. and that K2

Asia Ventures G.P. is K2 Asia Ventures Ltd.; is ‘it’s because we say it is.’ ”

The court cited Rule 17 of our Rules of Civil Procedure. 

No action shall be dismissed on the ground that it is not 

prosecuted in the name of the real party in interest until a 

reasonable time has been allowed after objection for 

ratification of commencement of the action by, or joinder or 

substitution of, the real party in interest; and such 

ratification, joinder, or substitution shall have the same 

effect as if the action had been commenced in the name of 

the real party in interest.”

N.C. Gen. Stat. § 1A-1, Rule 17(a) (2019).

In its order, the court stated that

[it declines] to substitute a party on its own motion or upon 

the invitation extended by [K2 Asia] in its brief. This case 

has been pending since 2009. [K2 Asia] has not filed a 

motion to substitute the Cayman Island company named 

K2 Asia Ventures G.P. as the real party in interest. 

However, [K2 Asia] did . . . “reserve its right to substitute 

K2 Asia Ventures G.P. as the real party in interest” in the 

event the [c]ourt found that K2 Asia Ventures is not the 

real party in interest.
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Opinion of the Court

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It is not reasonable, in the [c]ourt’s view or opinion, for [K2

Asia] to wait more than nine years after [K2 Asia]’s case 

was filed, and more than three years after a clear objection 

was voiced by [Krispy Kreme] that the case was not being 

prosecuted in the name of the real party in interest, to 

exercise its right to substitute the name of the real party 

in interest.

The court then stated that it interpreted Krispy Kreme’s motion for summary 

judgment as a motion to dismiss the action for K2 Asia’s failure to prosecute or to 

comply with the Rules of Civil Procedure, namely Rule 17(a), and the failure to 

prosecute its claims in the name of the real party in interest. “The [c]ourt finds and 

concludes that, based on the paper submitted and the protracted history of this case, 

K2 Asia Ventures (nothing else appearing), is not the real party in interest.” The 

court elected to treat Krispy Kreme’s motion for summary judgment as a Rule 41(b) 

motion for involuntary dismissal.

We hold that the trial court did not abuse its discretion by declining to ex mero 

motu substitute the real party in interest for K2 Asia or by denying K2 Asia’s 

reservation of the right to substitute K2 Asia Ventures G.P. as the real party in 

interest, where K2 Asia failed to do so pursuant to Rule 17 over a three year period. 

Accordingly, on this argument, K2 Asia is overruled.

Misnomer of a party

K2 Asia argues that the trial court erred by failing to address the issue of 

misnomer of a party. We disagree.
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K2 Asia contends that there was never a question that it was incorporated in 

the Cayman Islands and asserts the following: “while in the [Exclusivity Agreement] 

[Broock] used ‘K2 Asia Ventures Ltd.’ instead of ‘K2 Asia Ventures, G.P.,’ ” there is 

no indication Krispy Kreme was misled about the entity with which it was 

contracting. “[Though] the trial court concluded that the only way it could tell that 

K2 Asia Ventures, Ltd. is the same as K2 Asia Ventures G.P., was because [Broock] 

said so. That is of course true, as no one can know my thoughts as to the use of the 

‘K2 Asia Ventures, Ltd.’ as [Broock] did except [Broock].”

In essence, K2 Asia argues that K2 Asia Ventures, Ltd.—named in the 

Exclusivity Agreement with Krispy Kreme and the MOU with Max’s Group—is not a 

registered corporation1 but is the same entity as K2 Asia Ventures G.P., which is a 

company registered in the Cayman Islands. K2 Asia Ventures G.P. is the same entity 

as K2 Asia—the named plaintiff in the current civil suit—and all three entities 

represent the real party in interest.

In support of its argument that corporate misnomers are insufficient to 

warrant dismissal of an action, K2 Asia cites Troy & N. Carolina Gold Mining Co. v. 

Snow Lumber Co., 170 N.C. 273, 277, 87 S.E. 40, 42 (1915) (reasoning that in the 

context of the transference of property by deed, “[a] misnomer does not vitiate [the 

deed], provided the identity of the corporation with that intended to be named by the

 

1 In its brief to this Court, plaintiff asserts that Krispy Kreme reserved the name K2 Asia 

Ventures Ltd. in the Cayman Islands before filing its motion for summary judgment.
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Opinion of the Court

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parties is apparent”); and Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness 

Ch. of God, 136 N.C. App. 493, 524 S.E.2d 591 (2000) (discussing Troy & N. Carolina 

Gold Mining Co., 170 N.C. 273, 87 S.E. 40). In reviewing “the disparity in the 

corporate name, our Supreme Court stated that ‘[a]s to the plaintiff being described 

by the wrong name in the deed, this is at most but a misnomer or latent ambiguity, 

which can be explained by parol evidence so as to fit the description to the person or 

corporation intended. . . . A corporate name is essential, but the inadvertent or 

mistaken use of the name is ordinarily not material if the parties really intended the 

corporation by its proper name.’ ” Tomika Invs., 136 N.C. App. at 496, 524 S.E.2d at 

594 (alterations in original) (citation omitted); see also id. at 497, 524 S.E.2d at 594 

(“[T]here is only a latent ambiguity in the deed, and no evidence that [the] defendant 

was prejudiced by the misstatement of Tomika’s corporate name. [The d]efendant 

knew it was dealing with a corporation named ‘Tomika Investment’ or ‘Tomika 

Investments,’ of which [the] defendant Latimer was President. Concurrently with the 

execution of the deed, Tomika executed a lease with option to buy to the defendant, 

and impressed its corporate seal bearing its correct corporate name on the lease. We 

hold that the error in designating the grantee in the deed from [the] defendant 

Macedonia was not sufficient to void the deed as a matter of law, and hold that the 

trial court correctly granted summary judgment on this issue.”).
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K2 Asia’s argument regarding misnomer of party names is well taken. There 

is no dispute that Krispy Kreme contracted with Broock’s business entity or for that 

matter, that Max’s Group contracted with Broock’s business entity. However, 

Broock’s business entity with which Krispy Kreme and Max’s Group contracted is not 

the business entity Broock registered. Moreover, the business entity Broock 

registered is not the entity in the current civil suit named in the complaint as 

plaintiff, K2 Asia. Nothing else appearing, for this Court to hold K2 Asia to be a real 

party in interest, we would necessarily endorse the existence of a business entity for 

which there is no evidence of existence other than “because we say it is.” We do not 

so hold. Therefore, K2 Asia’s argument,on this point, is overruled and the trial court’s 

13 November 2018 order is 

AFFIRMED.

Judges ZACHARY and COLLINS concur.