An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1223

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

TAMMY FLORENTZ as Guardian ad 

Litem for TIMOTHY P. RHODES and 

TAMMY FLORENTZ,

Plaintiffs,

v. Moore County

No. 12 CVS 1359

JESSE GORE,

Defendant.

Appeal by plaintiff from order entered 31 May 2013 by Judge 

Patrice A. Hinnant in Moore County Superior Court. Heard in the 

Court of Appeals 19 February 2014.

Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp and 

William M. Van O’Linda, Jr., for plaintiff-appellant.

Linda Reid Oldham for defendant-appellee.

McCULLOUGH, Judge.

Plaintiff Tammy Florentz appeals from an order of the trial 

court granting defendant Jesse Gore’s motion to dismiss 

plaintiff Tammy Florentz’s individual claims of negligence and 

denying plaintiffs’ motion to amend the complaint. Based on the 

reasons stated herein, we affirm the order of the trial court.

I. Background
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On 31 October 2012, plaintiffs Tammy Florentz as guardian 

ad litem for Timothy P. Rhodes (“Timothy”) and Tammy Florentz

(“Florentz”) filed a complaint against defendant Jesse Gore

alleging negligence. The complaint alleged that plaintiffs 

rented a home from defendant, located at 505 N. Ridge Crest 

Street in Pinebluff, North Carolina (“leased property”). 

Beginning in 2005, shortly after moving into the leased 

property, Timothy began developing “respiratory, 

gastrointestinal and neurological symptoms including, but not 

limited to, migraines, nausea and sinus infections.” Plaintiffs 

discovered water leaks surrounding the fireplace, bathroom 

fixtures, and water heater. The water leaks caused significant 

water damage to the home. All leaks were reported to defendant. 

The water leak surrounding the fireplace was never resolved 

although in response to the complaints regarding the other 

leaks, defendant sent individuals to fix the leaks. These 

individuals failed to correct the water damage.

The complaint also alleged that “[a]s the water leaks 

continued, especially surrounding the fireplace, Tammy Florentz 

notified [defendant] of the persistent odor of mildew and mold. 

Additionally, Ms. Florentz reported the appearance and growth of 

mold surrounding the fireplace, bathroom and bedrooms of the 
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Leased Property.” Despite her complaints to defendant, the 

mold, mildew, and water damage was not corrected by defendant 

and plaintiffs were forced to move from the leased property.

Plaintiffs allege that defendant was negligent in that he 

failed to maintain the leased property in a condition such that 

it would not have persistent water leaks, had a duty to correct 

the water leaks, water damage and mold and mildew growth within 

the leased property, failed to correct the mold and mildew 

conditions within the leased property, and was otherwise 

negligent as discovered through this litigation. As a direct 

and proximate result of defendant’s negligence, plaintiffs 

alleged that Timothy had suffered severe physical injuries and

that plaintiffs incurred medical bills and endured pain and 

suffering.

On 4 January 2013, defendant filed an “Answer, 

Counterclaim, and Motion to Dismiss.” Defendant requested that 

the trial court dismiss plaintiffs’ action for failure to state 

a cause of action upon which relief may be granted pursuant to 

Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. 

Defendant’s affirmative defenses included the following:

equitable estoppel; contributory negligence; assumption of risk; 

intervening circumstances; payment, accord and settlement, 
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and/or setoff. Defendant also filed a counterclaim against 

plaintiffs for negligent misrepresentation.

On 6 March 2013, plaintiff filed a “Reply to Counterclaim.”

Following a hearing held during the 13 May 2013 session of 

Moore County Civil Superior Court, the trial court entered an 

“Order Dismissing Individual Claims of Tammy Florentz” on 31 May 

2013. The trial court made the following pertinent findings of 

fact:

1. Plaintiffs filed a Complaint against the 

Defendant on October 31, 2012[.] . . . . 

. . . . 

3. Plaintiffs’ Complaint alleged in 

paragraph 4 “Beginning in 2005, 

Plaintiffs resided in the Leased 

Property, shortly after moving into the 

property Timothy developed respiratory, 

gastrointestinal and neurological 

symptoms, including, but not limited to, 

migraines, nausea and sinus infections.”

. . . . 

6. Defendant’s Answer and Counterclaim 

responded in paragraph 7 “It is admitted 

that the Plaintiff, Tammy Florentz, 

reported a mold issue to Defendant in 

February of 2007. Defendant immediately 

instructed Plaintiff to vacate the 

premises so that the issue could be 

addressed.”

7. Defendant’s Counterclaim alleged in 

paragraph 1 “In February of 2007, 

Plaintiff, Tammy Florentz, notified 
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Defendant for the first time that she had 

found mold in the residence she rented 

from the Defendant.”

8. In Plaintiff’s Reply to Counterclaim, 

Plaintiff responds to Defendant’s 

allegation as follows: “The allegations 

set forth in paragraph 1 of the 

Counterclaim are admitted, upon 

information and belief.”

9. N.C. Gen. Stat. [§] 1-52 sets forth a 

three year statute of limitation 

applicable to the alleged claims of the 

Plaintiff, Tammy Florentz.

10. Pursuant to N.C. Gen. Stat. [§] 1-52, the 

cause of action for Plaintiff, Tammy 

Florentz, began to accrue when the bodily 

harm became “apparent or ought reasonably 

to have become apparent to the claimant, 

whichever event first occurs.”

11. Plaintiff alleges that her son began 

having medical problems shortly after 

moving into the rental property in 2005.

12. Plaintiff further alleges that she and 

her son moved out of the rental property 

in 2007 upon the advice of Timothy’s 

physicians.

13. The allegations in paragraph 9 of 

Plaintiffs’ Complaint alleges a clearly 

apparent cause of action as of time 

Plaintiff and her minor son moved out of 

the rental property which has been shown 

to be in 2007.

14. The three year statute of limitation set 

forth in N.C. Gen. Stat. [§] 1-52(16) and 

applicable to the causes of action of 

Plaintiff, Tammy Florentz, has expired.
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15. That the statute of limitations bars all 

claims of Tammy Florentz in her 

individual capacity as a Plaintiff in 

this action.

6. That the Plaintiff, Timothy P. Rhodes, is 

a minor child, and said disability 

prevents his causes of action from 

accruing.

The trial court granted defendant’s motion to dismiss the 

individual claims of Florentz. Timothy’s claims against 

defendant remain intact.

The 31 May 2013 order also noted that on 16 May 2013

plaintiffs’ counsel made an oral motion to amend the complaint. 

After hearing from both attorneys, plaintiffs’ motion to amend 

the complaint was denied.

From the 31 May 2013 order, Florentz appeals.

II. Discussion

On appeal, plaintiff argues that the trial court erred by 

(A) dismissing Florentz’s individual claims against defendant 

and (B) denying plaintiffs’ motion to amend the complaint. 

However, as a preliminary matter, we must first address whether 

this interlocutory appeal is properly before us for review.

“An interlocutory order is one made during the pendency of 

an action, which does not dispose of the case, but leaves it for 

further action by the trial court in order to settle and 
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determine the entire controversy.” Wilfong v. N.C. DOT, 194 

N.C. App. 816, 817, 670 S.E.2d 331, 332 (2009) (citation 

omitted). “[T]he appellant has the burden of showing this Court 

that the order deprives the appellant of a substantial right 

which would be jeopardized absent a review prior to a final 

determination on the merits.” Jeffreys v. Raleigh Oaks Joint 

Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).

Here, Florentz concedes that the appeal is interlocutory, 

but argues that there is a risk of inconsistent verdicts absent 

immediate appellate review. We agree.

Our Court has held that a substantial right is affected 

when “(1) the same factual issues would be present in both 

trials and (2) the possibility of inconsistent verdicts on those 

issues exists.” Estate of Redding v. Welborn, 170 N.C. App. 

324, 328-29, 612 S.E.2d 664, 668 (2005) (citation omitted). 

Because the same factual issues would be present in two separate 

trials, and because Florentz’s claims against defendant are 

derivative of Timothy’s claims against defendant, there is a 

risk of separate trials on the same issues and a risk of 

inconsistent verdicts. Thus, we proceed to the merits of 

Florentz’s appeal.

A. Motion to Dismiss
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First, Florentz argues that the trial court erred by 

granting defendant’s 12(b)(6) motion when it considered matters 

outside of the complaint.

In the case sub judice, the first affirmative defense in 

defendant’s 12(b)(6) motion was that the three year statute of 

limitations set out in N.C. Gen. Stat. § 1-52 barred any 

recovery by Florentz. In its 31 May 2013 order, the trial court 

found that plaintiffs’ cause of action began to accrue in 

February of 2007 by taking into consideration defendant’s 4 

January 2013 “Answer, Counterclaim, and Motion to Dismiss” and 

plaintiffs’ 6 March 2013 “Reply to Counterclaim.” Accordingly, 

the trial court held that plaintiffs’ 31 October 2012 complaint 

was filed after the expiration of the applicable statute of 

limitations.

Because the trial court considered defendant’s answer and 

counterclaim, in addition to plaintiffs’ reply to defendant’s 

counterclaim, the trial court effectively converted defendant’s 

12(b)(6) motion to dismiss into a Rule 12(c) motion for judgment 

on the pleadings. See S.N.R. Mgmt. Corp. v. Danube Partners 

141, LLC, 189 N.C. App. 601, 617, 659 S.E.2d 442, 454 (2008). 

“To determine whether the trial court erred in granting judgment 

on the pleadings under Rule 12(c) of the North Carolina Rules of 
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Civil Procedure in favor of [defendant], we apply de novo

review.” Id. (citation omitted).

N.C. Gen. Stat. § 1-52(16) provides that the statute of 

limitations for plaintiffs’ claims are three years and that

[u]nless otherwise provided by statute, for 

personal injury or physical damage . . . 

referred to in G.S. 1-15(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. . . .

N.C. Gen. Stat. § 1-52(16) (2013) (emphasis added).

Our review indicates that on 31 October 2012, plaintiffs 

filed a complaint alleging, inter alia, the following:

4. Beginning in 2005, Plaintiffs resided in 

the Leased Property, shortly after moving 

into the property Timothy developed 

respiratory, gastrointestinal and 

neurological symptoms including, but not 

limited to, migraines, nausea and sinus 

infections.

5. Not long after the moving into the Leased 

Property the Plaintiff discovered a water 

leak surrounding the fireplace and 

reported this leak to the Defendant. . . . 

. . . . 

7. As the water leaks continued, especially 

surrounding the fireplace, Tammy Florentz 

notified [defendant] of the persistent 

odor of mildew and mold. Additionally, 

Ms. Florentz reported the appearance and 

growth of mold surrounding the fireplace, 
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bathroom and bedrooms of the Leased 

Property.

8. Despite Ms. Florentz’s complaints the 

mold, mildew and water damage was not 

corrected by [defendant].

9. Ultimately, upon the [advice] of Timothy’s 

physicians, Timothy and [Florentz] were 

forced to move from the Leased Property.

In defendant’s “Answer, Counterclaim, and Motion to 

Dismiss,” defendant raises a statute of limitations defense, 

arguing that N.C. Gen. Stat. § 1-52 barred any recovery by 

Florentz. In paragraph 7 of defendant’s answer, defendant 

admits that Florentz reported a mold issue to defendant in 

February of 2007. In paragraph 1 of defendant’s counterclaim, 

defendant alleges that “[i]n February of 2007, [Florentz] 

notified Defendant for the first time that she had found mold in 

the residence she rented from the Defendant.” In plaintiffs’ 

“Reply to Counterclaim,” plaintiffs stated that “[t]he 

allegations set forth in paragraph 1 of the Counterclaim are 

admitted, upon information and belief.”

Based on the foregoing, we find that in 2005, Florentz was 

aware of the mold and mildew issues existing in the leased 

property and was aware that Timothy had begun experiencing 

physical problems. As alleged in plaintiffs’ complaint, 

Florentz was aware of the connection between the mold and mildew 
-11-

issues and the bodily injury to Timothy based on the advice of 

Timothy’s physicians to move out of the leased property. 

Florentz heeded this advice and moved from the leased property. 

Defendant’s “Answer, Counterclaim and Motion to Dismiss” alleges 

that plaintiffs moved out of the leased property in 2007 and 

Florentz concedes this date in her brief. Therefore, we 

conclude that as of 2007, Timothy’s alleged bodily harm became 

apparent or ought to reasonably have become apparent to 

Florentz, triggering the cause of action to accrue.

Because plaintiffs’ complaint was not filed until 31 

October 2012, clearly beyond the three year statute of 

limitations, the trial court did not err by concluding that 

Florentz’s individual claims against defendant were barred. 

Thus, we hold that the trial court properly granted defendant’s 

12(b)(6) motion and dismissed Florentz’s individual claims as 

untimely.

B. Motion to Amend the Complaint

In her next argument, Florentz contends that the trial 

court erred by denying her motion to amend the complaint where

it gave no “justifying reason for the denial.”

The standard of review for a motion to amend a complaint 

“requires a showing that the trial court abused its discretion. 
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. . . 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.” Revolutionary Concepts, Inc. v. Clements 

Walker PLLC, __ N.C. App. __, __, 744 S.E.2d 130, 136 (2013) 

(citation omitted) (emphasis added). “When the trial court 

states no reason for its ruling on a motion to amend, this Court 

may examine any apparent reasons for the ruling.” Williams v. 

Owens, 211 N.C. App. 393, 394, 712 S.E.2d 359, 360 (2011) 

(citation omitted).

It is well established that “[i]n deciding if there was 

undue delay, the trial court may consider the relative timing of 

the proposed amendment in relation to the progress of the 

lawsuit.” Draughon v. Harnett Cnty. Bd. of Educ., 166 N.C. App. 

464, 467, 602 S.E.2d 721, 724 (2004) (citation omitted). In 

Wilkerson v. Duke Univ., __ N.C. App. __, __, 748 S.E.2d 154, 

161 (2013), the trial court denied the plaintiff’s motion to 

amend his complaint based on undue delay and undue prejudice. 

After finding that the plaintiff’s motion to amend was delivered 

to the defendants thirteen months after he filed the initial 

complaint and only five days prior to the hearing on the 

defendants’ motion for summary judgment, our Court held that 
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“[w]e cannot say the trial court abused its discretion in 

denying plaintiff’s motion to amend for undue delay and undue 

prejudice.” Id. In the case before us, the trial court denied 

plaintiffs’ motion to amend the complaint without making any 

specific findings of fact supporting the court’s denial. 

Plaintiffs had requested to amend the complaint to state that 

Florentz “learned of the defendant’s negligence on or about 

August 19 of 2011.” We note that plaintiffs filed their 

complaint on 31 October 2012. Defendant filed its “Answer, 

Counterclaim and Motion to Dismiss” on 4 January 2013. 

Plaintiffs filed their “Reply to Counterclaim” on 6 March 2013. 

Similar to the reasoning stated in Wilkerson, we observe that 

plaintiffs’ motion to amend the complaint was made over six 

months after they filed the initial complaint and the motion was 

made orally at the 16 May 2013 hearing on defendant’s motion to 

dismiss. In light of these facts, we defer to the trial court’s 

discretionary determination to deny plaintiffs’ motion to amend 

the complaint.

III. Conclusion

Where the trial court did not err by dismissing Florentz’s

individual claims against defendant and by denying plaintiffs’ 
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motion to amend the complaint, we affirm the 31 May 2013 order 

of the trial court.

Affirmed.

Judge HUNTER, Robert C. concurs.

Judge GEER dissents.

Report per Rule 30(e).
NO. COA13-1223

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

TAMMY FLORENTZ as Guardian ad

Litem for TIMOTHY P. RHODES 

and TAMMY FLORENTZ,

Plaintiffs,

v. Moore County

No. 12 CVS 1359

JESSE GORE,

Defendant.

GEER, Judge dissenting.

This appeal is from an interlocutory order. Because the 

trial court did not certify the order for immediate review under 

Rule 54(b) of the Rules of Civil Procedure and because I do not 

believe that the appellant has shown the existence of a 

substantial right, I believe that we lack jurisdiction to hear 

the appeal and, therefore, would dismiss the appeal.

As our Supreme Court has held, "[i]n general, a party may 

not seek immediate appeal of an interlocutory order." Dep't of 

Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 709 (1999). 

However, "[i]nterlocutory orders may be appealed immediately 

under two circumstances. The first is when the trial court 

certifies [under Rule 54(b)] no just reason exists to delay the 

appeal after a final judgment as to fewer than all the claims or 
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parties in the action. The second is when the appeal involves a 

substantial right of the appellant and the appellant will be 

injured if the error is not corrected before final judgment." 

N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 47-48, 

619 S.E.2d 495, 496 (2005) (internal citation omitted).

In this case, the trial court did not include a Rule 54(b) 

certification in its order allowing the motion to dismiss Ms. 

Florentz' claims. As a result, this Court has jurisdiction over 

this appeal only if "'the order deprives the appellant of a 

substantial right which would be jeopardized absent a review 

prior to a final determination on the merits.'" Jeffreys v. 

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 

252, 253 (1994) (quoting S. Uniform Rentals, Inc. v. Iowa Nat'l 

Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988)).

Ms. Florentz argued and the majority opinion agrees that a 

substantial right exists because, as the majority explains, "the 

same factual issues would be present in two separate trials, and 

because Florentz's claims against defendant are derivative of 

Timothy's claims against defendant, there is a risk of separate 

trials on the same issues or a risk of inconsistent verdicts." 

However, the very fact that Ms. Florentz' claims are derivative 

eliminates any possibility of inconsistent verdicts.
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While I have not found a case addressing the ability to 

appeal an interlocutory order dismissing a derivative claim, 

this Court has addressed our jurisdiction in the analogous 

context of derivative liability. In Long v. Giles, 123 N.C. 

App. 150, 152, 472 S.E.2d 374, 375 (1996), the trial court 

entered summary judgment for a defendant employer sued based on 

a respondeat superior theory, but left pending claims against 

the defendant employee. 

In holding that no substantial right existed because there 

could be no possibility of inconsistent verdicts, this Court 

explained:

A finding of liability against 

defendant [employer], as [the individual 

defendant's] employer, is only possible if 

[the defendant employee's] estate is found 

liable, and the injuries arose out of and in 

the course of his employment. In other 

words, defendant [employer's] liability is 

derivative of [defendant employee's] 

liability, and the primary claim against the 

[defendant employee's] estate must first be 

determined before any claim against 

[defendant employer] is possible. Only if 

the court determines that plaintiffs may 

recover from the estate can their right to 

recover from defendant [employer] be 

affected by the summary judgment. 

If plaintiffs do not recover against 

[the defendant employee's] estate, they 

cannot seek to recover against defendant 

[employer] under a respondeat superior

theory, and an appeal of summary judgment 

would be moot. Moreover, if summary 
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judgment for defendant [employer] is in 

error, plaintiffs can preserve their right 

to complain of the error by a duly entered 

exception, and may appeal after a successful 

judgment on the primary claims against [the 

defendant employee's] estate. 

Id.

The Court, therefore, concluded in Long: "Because the issue 

of defendant [employer's] liability is derivative of a finding 

of liability against [the defendant employee's] estate, there is 

no possibility of inconsistent verdicts, and no substantial 

right is involved that would make an appeal of summary judgment 

appropriate at this time." Id. at 153, 472 S.E.2d at 375-76. 

Accord Florek v. Borror Realty Co., 129 N.C. App. 832, 835, 501 

S.E.2d 107, 108 (1998) (holding that claims based on principal 

and agent relationship gave rise to "no possibility of 

inconsistent verdicts as any liability on the part of [the 

principal] hinges upon a finding of liability on the part of 

defendant [agents]").

The reasoning in Long applies equally to this case. Ms. 

Florentz may recover only if the claims brought on behalf of her 

son succeed. See Holt v. Atl. Cas. Ins. Co., 141 N.C. App. 139, 

142, 539 S.E.2d 345, 347 (2000) (concluding that parent's "claim 

for [injured minor's] medical expenses is derivative in 

nature"). If Ms. Florentz' son does not prevail on his claims, 
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then Ms. Florentz will not be allowed to relitigate defendant's 

liability to her son in order to recover medical expenses 

incurred for her son. 

In other words, if Ms. Florentz were required to wait to 

appeal the order dismissing her claims, a judgment entered for 

defendant with respect to her son's claims would moot Ms. 

Florentz' appeal. On the other hand, if Timothy were to 

prevail, then Ms. Florentz could still appeal and, if 

successful, the only issues on remand would be limited to her 

entitlement to recover medical expenses. There would be no need 

to relitigate defendant's liability for Ms. Florentz' son's 

physical injuries.

For the reasons set out in Long and Florek, I would hold 

that no risk of inconsistent verdicts exists and that Ms. 

Florentz has failed to demonstrate the existence of a 

substantial right that she would lose in the absence of an 

immediate appeal. As noted in Florek, I believe that dismissal 

of the appeal is "in accordance with the procedural rules which 

are designed to promote[] judicial economy by avoiding 

fragmentary, premature and unnecessary appeals and permit[] the 

trial court to fully and finally adjudicate all the claims among 

the parties before the case is presented to the appellate 
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court." 129 N.C. App. at 836, 501 S.E.2d at 109 (internal 

quotation marks omitted).