Goodwin, by and through Hales v. Four County Electric Care Trust, Inc.
| Decision Date | 20 December 2016 |
| Docket Number | No. COA16-481,COA16-481 |
| Citation | 795 S.E.2d 590,251 N.C.App. 69 |
| Parties | Delvon R. GOODWIN, BY AND THROUGH his Guardian ad Litem, Melissa I. HALES, Plaintiff, v. FOUR COUNTY ELECTRIC CARE TRUST, INC., a/k/a Four County Electric Membership Corporation, Defendant. |
| Court | North Carolina Court of Appeals |
Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields, Raleigh, and Joshua D. Neighbors, and Law Offices of Wade E. Byrd, P.A., Fayetteville, by Wade E. Byrd, for Plaintiff-Appellant.
Young Moore and Henderson, P.A., Raleigh, by Dana H. Hoffman, for Defendant-Appellee.
Plaintiff appeals from the trial court's order denying his motion to amend the summons and complaint and granting Four County Electric Care Trust, Inc.’s motion to dismiss the action. For the following reasons, we affirm.
The issues on appeal in this matter concern the North Carolina Rules of Civil Procedure. The crux of this matter is whether Plaintiff sued the right entity for injuries sustained on 30 October 2012 after he came into contact with a power line regulator owned by "Four County Electric Membership Corporation," an electric membership cooperative (the "Membership Co-Op").
On 29 October 2015, almost three years after the accident, a guardian ad litem was appointed for Plaintiff, who commenced this action that same day.1 In the body of the complaint, Plaintiff did not allege that the regulator was owned by the Membership Co-Op; rather, Plaintiff alleged that the regulator was owned by a different entity, "Four County Electric Care Trust, Inc." (the "Non-Profit Trust" or "Defendant"). In the caption of the summons and the complaint, Plaintiff designated the defendant as a single entity, using an assumed name which incorporated the names of both the Membership Co-Op and the Non-Profit Trust as follows: "Four County Electric Care Trust, Inc. a/k/a Four County Electric Membership Corporation."
Defendant, the Non-Profit Trust, moved to dismiss Plaintiff's action pursuant to Rule 12(b)(2), (4), (5), and (6) of the North Carolina Rules of Civil Procedure, contending that it did not own the regulator, but rather Membership Co-Op owned it. At the Rule 12 motions hearing, Plaintiff orally moved to amend the complaint and summons to alter the assumed name in the caption to "Four County Electric Membership Corporation," averring that the amendment constituted the correction of a misnomer, not the addition of a new party. The Membership Co-Op never made an appearance in this action.
By order entered 4 January 2016, the trial court granted the Non-Profit Trust's motion to dismiss and denied Plaintiff's motion to amend its complaint and summons. Plaintiff timely filed a notice of appeal.
Plaintiff contends on appeal that the trial court erred in its 4 January 2016 order by (1) granting the Non-Profit Trust's motion to dismiss and (2) denying Plaintiff's motion to amend the summons and complaint.
Before addressing Plaintiff's arguments on appeal, we must first determine whether Plaintiff properly noticed an appeal from both portions of the trial court's order. Though Plaintiff states in his notice that he was appealing the 4 January 2016 order, he only references that portion granting Defendant's motion to dismiss. The notice fails to reference the portion denying Plaintiff's motion to amend. Specifically, Plaintiff's notice of appeal states as follows:
[Plaintiff] hereby gives notice of appeal to the Court of Appeals of North Carolina from the Order signed on December 22, 2015 and file-stamped/entered on January 4, 2016 in the Superior Court of Sampson County, granting Defendant's Motion to Dismiss the above-captioned matter.
Accordingly, Defendant argues that we lack jurisdiction to consider any issue concerning the denial of Plaintiff's motion to amend. Guided by our decision in Evans v. Evans , 169 N.C.App. 358, 610 S.E.2d 264 (2005), we conclude that both portions of the 4 January 2016 order are properly before us.
Our Court has interpreted Rule 3 of our Rules of Appellate Procedure to require that "an appellant ... appeal from each part of the judgment or order appealed from which appellant desires the appellate court to consider." Foreman v. Sholl , 113 N.C.App. 282, 291, 439 S.E.2d 169, 175 (1994) (internal quotation marks omitted). However, we have also held that "a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not mislead [sic] by the mistake." Smith v. Indep. Life Ins. Co. , 43 N.C.App. 269, 274, 258 S.E.2d 864, 867 (1979) (emphasis added) (internal quotation marks omitted).
Our Evans decision is remarkably similar to the present case. In Evans , the appellant gave notice of appeal from "the Order entered on December 18, 2001 ... denying Defendant's claim for child custody and child support." Evans , 169 N.C.App. at 363, 610 S.E.2d at 269 (internal quotation marks omitted). On appeal, the appellant also sought review of the portion of the same order denying her request for post-separation support. Id. The appellee argued that we lacked jurisdiction to consider the post-separation determination since the appellant's notice only referenced the child custody/support portion of the order. Id. We held that, based on these facts, Id.
Here, we can infer from Plaintiff's notice of appeal his intent to challenge the denial of his motion to amend the complaint and summons. His notice of appeal specifically references the 4 January 2016 order which addressed both the Non-Profit Trust's motion to dismiss and Plaintiff's motion to amend. See id. There is no indication that the Non-Profit Trust has been misled by Plaintiff's inadvertent omission of the motion to amend ruling from the notice of appeal. See Smith , 43 N.C.App. at 274, 258 S.E.2d at 867. Nor could there be as Plaintiff's sole, viable ground for appeal is that he should be allowed to amend the complaint and summons to include the defendant's proper name. Accordingly, we conclude that we have jurisdiction to review the trial court's denial of Plaintiff's motion to amend along with the trial court's grant of the Non-Profit Trust's motion to dismiss.
We first address whether the trial court erred in denying Plaintiff's oral motion to amend the summons and complaint to change the designation of the defendant in the caption from "Four County Electric Care Trust, Inc. a/k/a Four County Electric Membership Corporation" to "Four County Electric Membership Corporation." Plaintiff argues that this erroneous designation is merely a misnomer of the Membership Co-Op.
The Non-Profit Trust essentially argues that the designation in the caption, at best, identifies it as the sole defendant and that the summons was directed at and served upon it alone, and not upon the Membership Co-Op. Therefore, the Non-Profit Trust contends that the trial court was correct in its ruling because the trial court could not obtain jurisdiction over an entity that was not named or served (the Membership Co-Op) merely by amending the moniker on the summons and complaint. Indeed, both the summons and complaint identify and were served upon a different entity (the Non-Profit Trust).
Our Supreme Court has stated that an amendment to the summons and complaint may be allowed to correct a misnomer or mistake in the name of the party, but that such motion to amend must be denied "where the amendment amounts to a substitution or entire change in parties." Bailey v. McPherson , 233 N.C. 231, 235, 63 S.E.2d 559, 562 (1951). See also Harris v. Maready , 311 N.C. 536, 546, 319 S.E.2d 912, 918 (1984) ().
Here, we hold that the amendment sought by Plaintiff amounted to a substitution of parties. The summons was directed to the Non-Profit Trust, not the Membership Co-Op; specifically, the summons contained additional language which erroneously provided that the Non-Profit Trust was also known as the "Four County Electric Membership Corporation." Further, the body of the complaint never alleges any facts concerning the Membership Co-Op, but rather alleges that the power line regulator was owned, operated, and maintained by the Non-Profit Trust. We conclude that there is no confusion that the summons and complaint were directed to the Non-Profit Trust. Therefore, the trial court did not err in denying Plaintiff's motion to amend.
Our resolution of this issue is controlled by Crawford v. Aetna Cas. & Sur. Co. , 44 N.C.App. 368, 261 S.E.2d 25 (1979). In Crawford , the plaintiff sued "Michigan Tool Company, a Division of Ex-Cell-O Corporation" under the erroneous belief that Michigan Tool Company was part of Ex-Cell-O Corporation instead of a separate legal entity. Id. at 368, 261 S.E.2d at 26. After the statute of limitations had expired, the plaintiff then learned that Michigan Tool Company was in fact a subsidiary of Ex-Cell-O Corporation and that Ex-Cell-O Corporation and Michigan Tool Company were in fact two separate entities . Id. at 369, 261 S.E.2d at 26. The plaintiff then sought to amend the summons and complaint to reflect that Ex-Cell-O Corporation was the proper defendant, contending that the designation in the original summons and complaint was a mere misnomer. Id. However, this Court, relying on precedent from our Supreme Court, held that the designation was not a misnomer and that the amendment should not be allowed even if the summons and complaint in fact reached the...
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