Harris v. Maready
| Decision Date | 28 August 1984 |
| Docket Number | No. 518A83,518A83 |
| Citation | 319 S.E.2d 912,311 N.C. 536 |
| Court | North Carolina Supreme Court |
| Parties | Shirley T. HARRIS v. W.F. MAREADY, William H. Petree, C. Roger Harris, and Petree, Stockton, Robinson, Vaughn, Glaze and Maready. |
James, McElroy & Diehl, P.A. by William K. Diehl, Jr. and Katherine S. Holliday, Charlotte, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, by Hubert Humphrey, Greensboro, for defendants-appellees.
In several assignments presented to this Court for review, the plaintiff contends that the Court of Appeals erred in affirming the trial court's dismissal of the plaintiff's complaint and summonses against an individual defendant and the defendant law firm. The plaintiff also assigns as error the holding by the Court of Appeals that the trial court should have dismissed the action because of the plaintiff's violation of Rule 8(a)(2) of the North Carolina Rules of Civil Procedure. G.S. 1A-1, Rule 8(a)(2). For reasons stated below, we reverse the decision of the Court of Appeals.
At the outset we note that the defendants have filed a motion to dismiss the plaintiff's appeal. G.S. 7A-30(2) creates an appeal of right from any decision of the Court of Appeals "in which there is a dissent." The defendants argue there was no dissent in the Court of Appeals although two concurring opinions were so labeled. All three judges agreed that the plaintiff's actions against both the law firm and the individual defendant should have been dismissed but differed as to why dismissal was proper. The defendants argue that since all three judges agreed that the case should have been dismissed, the decision was not one "in which there is a dissent." G.S. 7A-30(2).
The defendants are correct in their assertion that the plaintiff has no right of appeal pursuant to G.S. 7A-30(2). Because all three judges agreed that the complaint and summonses should be dismissed, although for different reasons, there was no dissent from the decision of the Court of Appeals. See Nantz v. Employment Security Commission, 290 N.C. 473, 226 S.E.2d 340 (1976). The plaintiff's appeal is dismissed. Nevertheless, in our discretion we allow the plaintiff's petition for writ of certiorari to review the holdings of the Court of Appeals, pursuant to Rule 21 of the Rules of Appellate Procedure.
The plaintiff, Shirley Harris, brought this action for malpractice against the law firm of Petree, Stockton, Robinson, Vaughn, Glaze and Maready, and against two partners in the law firm, W.F. Maready and William H. Petree. The plaintiff employed the defendant Maready, a partner in the defendant law firm, in July 1976 to represent her in domestic matters involving her husband at that time, C. Roger Harris. Roger Harris was also named a defendant in this action but has taken no part in this appeal.
At the time of Maready's representation of the plaintiff Shirley Harris, the defendant Roger Harris was allegedly engaged in business transactions with the defendant Petree, a senior partner in the defendant law firm. In her complaint against the law firm and two of its partners, the plaintiff claims that because of Petree's relationship with her former husband, her attorney Maready was forced to withdraw from representing her. She contends that as a result she has been forced to hire other lawyers, to lose significant litigation advantages and to lose a long term professional relationship. She also claims that prior to his withdrawal from the case, Maready was unwilling to pursue her interests vigorously because of his partner Petree's business involvement with her husband. She claims she received no property settlement and a lesser alimony award than she was entitled to receive in her divorce action because Maready did not actively pursue her claim.
On January 18, 1979 Maready informed the plaintiff that he would be unable to continue representing her because of a memorandum circulated by Petree which instructed members of the law firm to decline from representing clients who had interests adversarial to those of Roger Harris. Almost three years later on January 11, 1982, an order granting the plaintiff an extension of time for filing a complaint was issued along with summonses directed to the defendants in this action. Summonses were served on the law firm on January 14, 1982 by leaving copies with "William H. Petree, (General Partner)" and service on Petree individually on the same day. Summonses were served on Maready on January 27 and on Roger Harris on January 25, 1982. On January 25 the plaintiff filed a verified complaint, and it was served on all defendants by certified mail.
On March 1, 1982 Maready, Petree, and the law firm moved in a special appearance to dismiss the summonses and the complaint and to sever the action against them from that against Roger Harris. The defendants gave several reasons in support of their motion for dismissal.
The summons to the law firm and the original complaint each were directed to "Petree, Stockton, Robinson, Vaughn, Glaze & Maready, P.A." Contending that no such entity exists since the law firm has never been a professional association, the defendants cited lack of jurisdiction, insufficiency of process and service of process and failure to state a claim upon which relief can be granted in support of motions to dismiss under Rule 12 of the North Carolina Rules of Civil Procedure. G.S. 1A-1, Rule 12.
The defendants further claimed insufficiency of process and insufficiency of service of process on W.F. Maready and sought to dismiss the summons and complaint against him. The motion stated that no valid summons or other process was served on Maready. In an affidavit later submitted by Maready, he stated that the only civil summons delivered to him was addressed to Roger Harris.
The defendants also claimed that the plaintiff in her complaint violated Rule 8(a)(2) of the North Carolina Rules of Civil Procedure in that the complaint stated that the plaintiff had been damaged in an amount in excess of five million dollars. The prayer for relief in the complaint requested five million dollars from the law firm in compensatory damages, five million dollars jointly and severally from Petree and Maready in compensatory damages, and five million dollars jointly and severally from all defendants in punitive damages.
On March 4, 1982 the plaintiff amended her complaint by deleting the designation "P.A." from the caption and from other references to the firm, by deleting any description of the law firm as a professional association and by alleging the firm to be a general partnership of attorneys. The plaintiff amended the prayer for relief in the complaint by deleting the paragraphs requesting five million dollars and substituting paragraphs asking for relief in an amount in excess of $10,000.
On June 10 and June 11, 1982 the trial court considered the defendants' motions and affidavits. The plaintiff orally moved to amend the summons which had been served on Maready to delete the name of C. Roger Harris and to insert in its stead the name of Maready. She also moved to delete the letters "P.A." from the summons addressed to the law firm. The trial court denied the plaintiff's motions. In an order filed June 21, 1982, the trial court allowed the defendants' motions to dismiss the summons and complaint against the law firm for lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process. The trial court also allowed the motion to dismiss the summons and complaint against Maready on grounds of insufficiency of process and insufficiency of service of process. The trial court denied the motion to dismiss the summonses and complaint against all defendants because the complaint stated a demand for a specific amount of monetary relief of more than ten thousand dollars in a malpractice action--a violation of Rule 8(a)(2) of the North Carolina Rules of Civil Procedure.
The plaintiff appealed to the Court of Appeals, and the defendant cross-assigned as error the trial court's refusal to dismiss for violation of Rule 8(a)(2). The Court of Appeals, in an opinion by Judge Braswell, affirmed the dismissal of the complaint and summonses against the law firm and Maready. The Court of Appeals reversed the trial court as to the defendants' cross assignment of error, and held that the trial court should have dismissed the summonses and complaint because of the violation of Rule 8(a)(2). Judge Arnold concurred in the portion of the opinion which held that the action should have been dismissed for violation of Rule 8(a)(2) but stated that he did not think the case should have been dismissed for lack of jurisdiction. Judge Webb concurred in all portions of the opinion except on the issue of dismissal for violation of Rule 8(a)(2).
We note that the first two questions before us involve the summonses and not the complaint, since it was the issuance of the summonses and order extending time to file the complaint which commenced the lawsuit. See G.S. 1A-1, Rule 3. The complaint was filed and served by certified mail more than a week after the summonses were issued. Since the statute of limitations for this action expired between the issuance of the summonses and the filing of the complaint, the questions involving adequacy of the summonses are crucial.
We first consider whether the defendant Maready was sufficiently served with process. The plaintiff contends the Court of Appeals erred in affirming the trial court's dismissal of the summons and complaint as to Maready for insufficient service of process. It is undisputed by the parties that on January 27, 1982 a deputy sheriff personally delivered to Maready a copy of a summons issued January 11, 1982 which was directed to C. Roger Harris, Bermuda Run, Advance, North Carolina. The Court of Appeals held that the plaintiff failed to comply with the statutory rules for service of process and...
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