“In order for equitable estoppel to bar application of the statute of limitations, a plaintiff must have been induced to delay filing of the action by the misrepresentations of the defendant.”
How later courts described this case
- “In order for equitable estoppel to bar application of the statute of limitations, a plaintiff must have been induced to delay filing of the action by the misrepresentations of the defendant.”
Written by the judges who cited it.
The opinion
Brown v. TM Northlake Mall, LP, 2025 NCBC 57.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY MASTER FILE 24CV032386-590
BIANCA JULIANNE BROWN,
Plaintiff,
v.
TM NORTHLAKE MALL, LP et al.,
Defendants.
ORDER AND OPINION
ON MOTION TO DISMISS
THE ESTATE OF ARMANI 24CV032393-590
DONOVICK SPENCER, by and
through its Administratrix DONNA RELATED CASE
KAY SPENCER,
Plaintiff,
v.
TM NORTHLAKE MALL, LP et al.,
Defendants.
BRIANNA PERKINS, 25CV036624-590
Plaintiff, RELATED CASE
v.
TM NORTHLAKE MALL, LP et al.,
Defendants.
1. These consolidated cases arise from a shooting that killed Armani Spencer
and injured two others. All three victims assert claims against the owners, managers,
and security personnel of the shopping centers where the shooting occurred, alleging
that they had a duty to provide adequate security but negligently failed to do so.
Defendants AMMS, Inc., Amy Ruth Tompkins, and Michael McLaughlin contend that
the wrongful death claims asserted by Spencer’s estate are untimely and have moved
to dismiss them under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
For the following reasons, the Court GRANTS the motion.
Howard, Stallings, From, Atkins, Angell & Davis, P.A., by Robert Jessup
and Matthew Langston, and Ramsay Law Firm, by Brian Curtis Hunt,
for Plaintiffs Bianca Julianne Brown, Brianna Perkins, and The Estate
of Armani Donovick Spencer.
Teague Campbell Dennis & Gorham, LLP, by John Matthew Little and
Daniel Thaddeus Perry, for Defendant Hiffman Asset Management, LLC
d/b/a Hiffman National.
Gallivan, White, & Boyd, P.A., by Christopher Mark Kelly, for Defendant
S&S Management Group, LLC d/b/a Security Solutions of America.
Goldberg Segalla LLP, by John I. Malone, for Defendant ARC
NCCHRNC001, LLC.
Wilson Elser Moskowitz Edelman & Dicker, LLP, by Jamie L. Winokur
and Spencer Hoisington, for Defendants Spinoso Real Estate Group,
DLS, LLC and TM Northlake Mall, LP.
Hall Booth Smith, P.C., by Peter F. O’Connell and Charles J. Taylor, for
Defendant Professional Security Consultants, Inc.
McAngus Goudelock & Courie, PLLC, by David M. Fothergill and Megan
Reilly-Dreas, for Defendants AMMS, Inc., Amy Ruth Tompkins, and
Michael McLaughlin.
Conrad, Judge.
I.
BACKGROUND
2. The Court does not make findings of fact on a Rule 12(b)(6) motion. The
following background assumes that the allegations made by Spencer’s estate are true.
(See Am. Compl., ECF No. 72.)
3. In August 2022, Bianca Brown, Brianna Perkins, and Armani Spencer
gathered at a restaurant in the Northlake Commons shopping center in Charlotte,
North Carolina. Shortly after midnight, they left the restaurant and were driving
away when “a reckless driver tailgat[ed] them from Northlake Commons into
Northlake Mall.” At a stoplight on mall grounds, the tailgater pulled even with their
vehicle, fired about twenty gunshots, and then fled. Spencer died at the scene; Brown
and Perkins were severely injured. The shooter’s identity remains unknown. (Am.
Compl. ¶¶ 31–34.)
4. Brown and Spencer’s estate brought their lawsuits in July 2024, and
Perkins’s lawsuit followed about a year later. All three have been consolidated for
discovery. In a nutshell, Brown, Perkins, and Spencer’s estate blame their injuries
on the owners, managers, and security providers of Northlake Commons and
Northlake Mall. As alleged, authorities for both properties were aware of the area’s
history of criminal activity and therefore had a duty to safeguard their customers,
but they negligently breached that duty by failing to warn the public of the danger
and failing to provide adequate security. (See, e.g., Am. Compl. ¶¶ 62, 63.)
5. Only the claims against AMMS, Tompkins, and McLaughlin are at issue.
They are relative newcomers to the litigation, having not been named as defendants
at the outset. It was during discovery that Brown and Spencer’s estate first learned
of their existence and role in providing (or failing to provide) security for Northlake
Commons. Brown and Spencer’s estate obtained leave to amend their complaints and
assert claims against AMMS, Tompkins, and McLaughlin in June 2025, around the
same time that Perkins filed her complaint. (See, e.g., Am. Compl. ¶¶ 55, 56.)
6. As alleged, AMMS is a North Carolina company owned by Tompkins and
McLaughlin. Northlake Commons’ property manager, Hiffman, retained AMMS to
provide security services at the shopping center. Without informing Hiffman, AMMS
then subcontracted its duties to an outfit called Security Solutions. Although AMMS
performed no security services itself, is not licensed to do so, and has no employees,
Tompkins prepared and sent Hiffman phony invoices as if AMMS had provided
full-service security. Meanwhile, Security Solutions was led to believe that AMMS,
not Hiffman, was Northlake Commons’ manager. It is alleged that McLaughlin often
meddled in the deployment of Security Solutions’ guards, instructing them to leave
Northlake Commons and go to “unrelated commercial properties where AMMS had
operations.” And AMMS allegedly directed Security Solutions not to create “daily
written incident reports,” contrary to industry standards. The amended complaint
asserts a wrongful death claim against AMMS, Tompkins, and McLaughlin based on
allegations that they failed to perform their duties and negligently failed to exercise
ordinary care in protecting the shopping center’s patrons. (See, e.g., Am. Compl.
¶¶ 39–57, 115.)
7. AMMS, Tompkins, and McLaughlin have answered Brown’s and Perkins’s
complaints and denied any wrongdoing. Separately, AMMS, Tompkins, and
McLaughlin have moved to dismiss the claims asserted by Spencer’s estate, arguing
that the claims are untimely. (See ECF No. 104.) After full briefing and a hearing
on 22 September 2025, the motion is ripe for decision.
II.
ANALYSIS
8. AMMS, Tompkins, and McLaughlin assume, for the purpose of this motion,
that Spencer’s estate has adequately alleged the elements of a wrongful death claim.
Even so, they contend, the claim must be dismissed because it is untimely. Indeed,
everyone agrees that the two-year limitations period expired long before Spencer’s
estate sued AMMS, Tompkins, and McLaughlin. See N.C.G.S. § 1-53(4) (stating that
a wrongful death claim accrues on “the date of death” and must be brought “[w]ithin
two years”). The dispute is instead over whether AMMS, Tompkins, and McLaughlin
are equitably estopped from asserting the statute of limitations as a defense.
9. A statute of limitations “may be the basis of a 12(b)(6) dismissal if on its face
the complaint reveals the claim is barred.” Forsyth Mem’l Hosp., Inc. v. Armstrong
World Indus., Inc., 336 N.C. 438, 442 (1994). In deciding the motion, the Court must
treat all well-pleaded allegations as true and view the facts and permissible
inferences in the light most favorable to the nonmoving party. See, e.g., Sykes v.
Health Network Sols., Inc., 372 N.C. 326, 332 (2019). Material outside the pleading
may not be considered. See Jackson/Hill Aviation, Inc. v. Town of Ocean Isle Beach,
251 N.C. App. 771, 775 (2017).
10. “Equitable estoppel may be invoked, in a proper case, to bar a defendant
from relying upon the statute of limitations.” Duke Univ. v. Stainback, 320 N.C. 337,
341 (1987). The doctrine is rooted in notions of “fair play.” Id. (quoting McNeely v.
Walters, 211 N.C. 112, 113 (1937)). A defendant who induces a plaintiff to delay filing
suit should not be able to turn around and assert a statute of limitations as a defense
to avoid suit altogether. See, e.g., Nowell v. Great Atl. & Pac. Tea Co., 250 N.C. 575,
579 (1959); see also Jordan v. Crew, 125 N.C. App. 712, 720 (1997) (“In order for
equitable estoppel to bar application of the statute of limitations, a plaintiff must
have been induced to delay filing of the action by the misrepresentations of the
defendant.”).
11. Estoppel has three “essential elements”: “(1) conduct on the part of the party
sought to be estopped which amounts to a false representation or concealment of
material facts; (2) the intention that such conduct will be acted on by the other party;
and (3) knowledge, actual or constructive, of the real facts.” Friedland v. Gales, 131
N.C. App. 802, 807 (1998) (citation and quotation marks omitted). In addition, the
party advocating estoppel “must have (1) a lack of knowledge and the means of
knowledge as to the real facts in question; and (2) relied upon the conduct of the party
sought to be estopped to his prejudice.” Id. (citation and quotation marks omitted).
“[T]he conduct of both parties must be weighed in the balances of equity and the party
claiming the estoppel no less than the party sought to be estopped must conform to
fixed standards of equity.” Gaston–Lincoln Transit, Inc. v. Maryland Casualty Co.,
285 N.C. 541, 549 (1974).
12. AMMS, Tompkins, and McLaughlin argue that they did not induce
Spencer’s estate to delay filing suit. The complaint, they say, does not allege that
they ever had any contact with Spencer’s estate or its lawyers, much less that they
made misrepresentations to the estate. In their view, any delay in filing suit resulted
from the estate’s lack of diligence.
13. In response, Spencer’s estate maintains that estoppel may apply when a
wrongdoer conceals his identity, even without making a direct misrepresentation to
the aggrieved party. Here, the estate contends, AMMS, Tompkins, and McLaughlin
concealed their role in Northlake Commons’ security. According to the estate, the
complaint adequately alleges that the actions of AMMS, Tompkins, and McLaughlin
kept the estate from identifying them and, thus, induced the delay in filing suit.
14. Our Court of Appeals has held that “one who actively, affirmatively and
deliberately conceals his identity as a tortfeasor is equitably estopped from asserting
the statute of limitations as a defense to an action for damages resulting from his
tortious act.” Friedland, 131 N.C. App. at 805. In Friedland, the defendant had killed
an individual and then lied to police officers about his involvement, which “prevented
plaintiff from learning his identity before the statute of limitations had run.” Id. at
809. The defendant, having concealed his identity from the police and the public, was
“equitably estopped from asserting the statute of limitations as a bar to plaintiff’s
claim.” Id.
15. In this case, by contrast, the amended complaint’s allegations do not show
that AMMS, Tompkins, and McLaughlin concealed their identities. Both Hiffman
and Security Solutions were undeniably aware of their identities and their
involvement in Northlake Commons’ security. Hiffman engaged them to provide
security services for the shopping center, and Security Solutions performed security
services under their direction. At no point does the amended complaint allege that
AMMS, Tompkins, and McLaughlin denied having a role in Northlake Commons’
security or lied about their involvement to police or other authorities during the
investigation of Spencer’s death. See Loray Master Tenant, LLC v. Foss N.C. Mill
Credit 2014 Fund I, LLC, 2021 NCBC LEXIS 15, at *23 (N.C. Super. Ct. Feb. 18,
2021) (granting motion to dismiss and concluding that plaintiff’s lack of awareness of
defendant’s identity did not support estoppel absent concealment).
16. The estate points to allegations that AMMS, Tompkins, and McLaughlin
shirked their security responsibilities and misled Hiffman and Security Solutions in
certain ways. Specifically, it is alleged that AMMS led Hiffman to believe that AMMS
was providing full-service security and sent phony invoices, held itself out to Security
Solutions as the property manager, and directed Security Solutions to send guards to
other properties and not to compile written incident reports. (See Am. Compl. ¶¶ 39,
41, 47, 48.) Even if true, these allegations show that AMMS, Tompkins, and
McLaughlin held themselves out as having greater responsibility for Northlake
Commons’ security than they really had, not that they concealed their identities.
Moreover, the allegations that they failed to perform their duties may suggest
negligence (or worse) but do not support estoppel absent deliberate concealment of
their identities. See Harrington v. Gerald, 2008 N.C. App. LEXIS 635, at *10 (N.C.
Ct. App. 2008) (unpublished) (“The fact that Plaintiffs did not discover until 2006 that
Defendant had received possession of the boat slips is irrelevant to an equitable
estoppel analysis without such deliberate actions [of concealment] by Defendant.”).
17. The amended complaint also contains a few conclusory allegations of
concealment. But it is well settled that courts need not “accept as true allegations
that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences.” Izydore v. Alade, 242 N.C. App. 434, 438 (2015) (citation and quotation
marks omitted).
18. In sum, the amended complaint’s allegations, even if true, do not support
the application of equitable estoppel. As noted, it is undisputed that the statute of
limitations expired long before the estate sued AMMS, Tompkins, and McLaughlin.
The wrongful death claim is therefore untimely.
III.
CONCLUSION
19. For these reasons, the Court GRANTS the motion to dismiss and
DISMISSES with prejudice all claims asserted by Spencer’s estate against AMMS,
Tompkins, and McLaughlin.
SO ORDERED, this the 29th day of September, 2025.
/s/ Adam M. Conrad
Adam M. Conrad
Special Superior Court Judge
for Complex Business Cases