Franklin v. Winn Dixie Raleigh, Inc.

• Decision Date: 15 November 1994
• Docket Number: No. 9310SC1039,9310SC1039
• Citation: 117 N.C.App. 28,450 S.E.2d 24
• Parties: Eugene K. FRANKLIN, David L. Franklin, Co-Executors of the Estate of Henry B. Franklin, and Wava K. Franklin, Plaintiffs, v. WINN DIXIE RALEIGH, INC., Defendant.
• Court: North Carolina Court of Appeals

Page 24

450 S.E.2d 24

117 N.C.App. 28

Eugene K. FRANKLIN, David L. Franklin, Co-Executors of the Estate of Henry B. Franklin, and Wava K. Franklin Plaintiffs, v. WINN DIXIE RALEIGH, INC., Defendant.

No. 9310SC1039.

Court of Appeals of North Carolina.

Nov. 15, 1994.

Marvin Schiller and William E. Moore, Jr., Raleigh, Wallace R. Young, Jr., Cary, for plaintiff-appellants.

Patterson, Dilthey, Clay & Bryson, L.L.P. by G. Lawrence Reeves, Raleigh, for defendant-appellee.

ORR, Judge.

I.

Plaintiffs' first assignment of error is that the trial court erred in granting the defendant's motion to dismiss for insufficiency of process. The sufficiency of process for any civil action filed in North Carolina is governed by N.C.Gen.Stat. § 1A-1, Rule 4. Rule 4(a) states that "[u]pon the filing of the complaint, summons shall be issued forthwith...." N.C.Gen.Stat. § 1A-1, Rule 4(a) (1990). Rule 4(b) states that a summons "shall be directed to the defendant or defendants." N.C.Gen.Stat. § 1A-1, Rule 4(b) (1990).

On the significance of a summons, this Court has stated:

The summons constitutes the means of obtaining jurisdiction over the defendant.... The summons, not the complaint, constitutes the exercise of the power of the State to bring the defendant before the court. As such, defects in the summons receive careful scrutiny and can prove fatal to the action.

Latham v. Cherry, 111 N.C.App. 871, 873, 433 S.E.2d 478, 480 (1993), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994) (quoting Childress v. Forsyth County Hospital Auth., 70 N.C.App. 281, 285, 319 S.E.2d 329, 332 (1984), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985)).

Where there is a defect in the process itself, the process is generally held to be either voidable or void. Where the process is voidable, the defect generally may be remedied by an amendment because the process is sufficient to give jurisdiction. Where the process is void, however, it generally cannot be amended because it confers no jurisdiction.

Harris v. Maready, 311 N.C. 536, 542, 319 S.E.2d. 912, 916 (1984).

Rule 4(i) permits trial courts to allow the amendment of any process "unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued." N.C.Gen.Stat. § 1A-1, Rule 4(i) (1990); Harris, 311 N.C. at 545, 319 S.E.2d at 918. "Material prejudice" in this context "refers primarily to the interposition of the statute of limitations." 1 G. Gray Wilson, North Carolina Civil Procedure, § 4-10, p. 44. The power of the court to allow amendment of process is discretionary and permits amendment to correct a misnomer or mistake in the name of a party. Harris, 311 N.C. at 542, 319 S.E.2d at 918. When "the misnomer or misdescription does not leave in doubt the identity of the party intended to be sued, or even where there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit". Id. 319 S.E.2d at 919 (citing Bailey v. McPherson, 233 N.C. 231, 235, 63 S.E.2d 559, 562 (1951)). However, "if the amendment amounts to a substitution or entire change of parties, however, the amendment will not be allowed." Id. (citing Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789 (1938)). Our Supreme Court has stated that "[s]ubstitution in the case of a misnomer is not considered substitution of new parties, but a correction in the description of the party or parties actually served." Blue Ridge Electric Membership Corporation v. Grannis Bros., Inc., 231 N.C. 716, 720, 58 S.E.2d 748, 751 (1950). Thus, resolution of plaintiffs' assignments of error turns on whether plaintiffs naming "Winn Dixie Stores, Inc." as the defendant in the original summons and complaint was a misnomer.

The record shows by the affidavit of E.D. Whitley, Safety Manager, for Winn-Dixie Raleigh, Inc., that "Winn-Dixie Stores, Inc." was not a corporate entity on record with the Secretary of State. It further shows that at no time pertinent to this action did Winn-Dixie Stores, Inc. ever own, lease or operate the store located at 651 Western Boulevard Extension. Moreover, while Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh, Inc. are both Florida corporations authorized to do business in North Carolina, they have been and were separate and distinct corporations at the time the cause of action accrued.

Therefore, we hold that the named defendant in the original summons and complaint, "Winn Dixie Stores, Inc.", was not a mistake or misdescription permitting the amendment of the summons. Rather, Winn Dixie Stores, Inc. was the correct name of the wrong corporate party defendant, a substantive mistake which is fatal to this action. Quite simply, plaintiffs sued the wrong corporation.

Plaintiffs contend that they were entitled to correct their original defective summons by alias and pluries summons. They rely on Latham v. Cherry, 111 N.C.App. 871, 433 S.E.2d 478 (1993) and Anderson Trucking Service, Inc. v. Key Way Transport, Inc., 94 N.C.App. 36, 379 S.E.2d 665 (1989). As defendant correctly points out, plaintiffs' reliance on these cases is misplaced.

In Latham, this Court said that "[a] party may correct a failed or defective original service by ... application for alias and pluries summons within ninety days of original issue...." Latham, 111 N.C.App. at 873, 433 S.E.2d at 480; see N.C.Gen.Stat. § 1A-1, Rule 4(d) (1990) (emphasis added). The issue in Latham was defective service, not defective process. In Anderson, again the issue before the court was whether service was defective. Anderson, 94 N.C.App. at 44, 379 S.E.2d at 670. N.C.Gen.Stat. § 1A-1, Rule 4(d), on which plaintiffs rely, "pertains to the extension of time for 'service' of a summons which has been properly issued against a named defendant." Roshelli v. Sperry, 63 N.C.App. 509, 511, 305 S.E.2d 218, 219, review denied, 309 N.C. 633, 308 S.E.2d 716 (1983). Rule 4(d) of the North Carolina Rules of Civil Procedure provides that:

When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

. . . . .

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

. . . . .

N.C.Gen.Stat. § 1A-1, Rule 4(d) (1990). This provision relates only to defective original service, not defective original process. Plaintiffs' repeated issuance and service of alias and pluries summonses was not only consistently defective, but also ineffective to confer jurisdiction over the defendant Winn-Dixie Raleigh, Inc.

In Roshelli, the plaintiff filed a complaint against Lawrence F. Sperry seeking recovery under the family purpose doctrine for personal injuries received on 31 March 1978 in an automobile accident allegedly caused by the defendant's daughter, Beverly N. Sperry. On the date the complaint was filed, 27 March 1981, a summons was issued in the name of Beverly Sperry. A summons in the name of the defendant, Lawrence F. Sperry was issued on 7 April 1981, after the limitations period had expired. On appeal from the defendant's motion for summary judgment, the plaintiff contended that because the 7 April 1981 summons issued in the name of Lawrence Sperry was endorsed by the clerk, it related back to the 27 March 1981 issuance of the original summons in the name of Beverly Sperry, a nonparty. This Court held that the clerk's endorsement of the summons directed to Lawrence Sperry after the limitations period had run did not cause the endorsed summons to relate back to the issuance within the limitations period of original summons directed to Beverly Sperry. "The purpose of Rule 4(d) is only to keep the action alive by means of an endorsement on the original summons or by issuance of an alias or pluries summons in situations where the original, properly directed summons was not yet served." Roshelli, 63 N.C.App. at 511, 305 S.E.2d at 219. When an original summons is issued in the name of a person other than the defendant and not a party to the action, Rule 4(d) does not apply. Id.

In the case at bar, plaintiffs' attempt to amend the original summons was prohibited because it constituted "a substitution or entire change of parties". Harris, 311 N.C. at 546, 319 S.E.2d at 918. Accordingly, we affirm the trial court's decision to grant defendant's motion to dismiss for insufficiency of process.

II.

Plaintiffs next contend that the trial court erred in granting defendant's motion to dismiss for insufficiency of service of process. We disagree.

"The purpose of a summons is to give notice to a person to appear at a certain place and time to answer a complaint against him." Wearring v. Belk Brothers., Inc., 38 N.C.App. 375, 376, 248 S.E.2d 90, 90 (1978); see N.C.Gen.Stat. § 1A-1, Rule 4(b) (1990). The statutory method for service of process on a corporation is set forth in Rule 4(j)(6). In pertinent part, Rule 4(j)(6) states that to effect service on a corporation, a summons and complaint must be delivered, in person or by registered or certified mail, to an officer, director, or managing agent of the corporation, by leaving copies in the office of such persons. N.C.Gen.Stat. § 1A-1, Rule 4(j)(6) (1990) (emphasis added).

As demonstrated in the preceding argument, the 29 September 1992 and the 23 December 1992 alias and pluries summonses naming "Winn-Dixie Raleigh, Inc." as the defendant were ineffective attempts at amending the original summons. Interestingly, plaintiffs cite several Court of Appeals cases which support the defendant's contention that service was insufficient. All of the cases on which plaintiffs base...