Piland v. Hertford County Bd. of Com'rs

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1173.,COA99-1173.
• Parties: William S. PILAND, Patricia P. Piland, Eunice Castelow, Rupert E. Liverman, Richard O. Liverman, Alan Bazemore, Raymond Batton, Linda Batton, Earnest Castelow, Nelda Castelow, Tilghman Phelps, Jr., William E. Bazemore, Freddie Stevens, Barbara Stevens, Frances Callis, R.V. Castelloe, William Combo, Johnny Powell, E.P. Burby and Dawn Burby, Plaintiffs, v. HERTFORD COUNTY BOARD OF COMMISSIONERS, Defendant.
• Court: North Carolina Court of Appeals

539 S.E.2d 669

141 NC App. 293

William S. PILAND, Patricia P. Piland, Eunice Castelow, Rupert E. Liverman, Richard O. Liverman, Alan Bazemore, Raymond Batton, Linda Batton, Earnest Castelow, Nelda Castelow, Tilghman Phelps, Jr., William E. Bazemore, Freddie Stevens, Barbara Stevens, Frances Callis, R.V. Castelloe, William Combo, Johnny Powell, E.P. Burby and Dawn Burby, Plaintiffs, v. HERTFORD COUNTY BOARD OF COMMISSIONERS, Defendant.

No. COA99-1173.

Court of Appeals of North Carolina.

December 29, 2000.

The Brough Law Firm, by Michael B. Brough and Robert E. Hornik, Jr., Chapel Hill, for plaintiffs-appellants-cross appellees.

Smith, Helms, Mulliss & Moore, L.L.P., by James G. Exum, Jr. and Robert R. Marcus, Greensboro, and Revelle, Burleson, Lee & Revelle by Charles L. Revelle, III, Murfreesboro, for defendant-appellee-cross appellant.

WYNN, Judge.

On 5 October 1998, the Hertford County Board of Commissioners held a public hearing following which it voted unanimously to rezone a 1,600 acre tract of undeveloped land located along the southern shore of the Chowan River east of Tunis. Before the rezoning, a portion of the property was zoned RA-20 (residential and agricultural use); and, the remainder of the property was zoned RR & C (residential and recreational use).

At the public hearing, the Board of Commissioners voted to rezone the property from RA-20 and RR & C to IH (heavy industrial use). The land lying to the west of the property is also zoned IH. At the same public hearing, the Board of Commissioners also voted to amend certain sections of the municipal zoning ordinance to allow steel mills and recycling facilities, in addition to related uses, within the IH zoning district.

On 4 December 1998, the plaintiffs brought an action against the Board of Commissioners challenging the rezoning of the property and the amending of the zoning ordinance. The Board of Commissioners answered the complaint on 7 January 1999; and on 5 February 1999, it moved to dismiss the action under Rules 12(b)(1), (2), (4), (6) and (7) on grounds that, among other things, the plaintiffs failed to name or serve Hertford County as a defendant. See N.C.R. Civ. P. 12(b)(1), (2), (4), (6) and (7) (1990). In its motion to dismiss, the Board of Commissioners asserted that it was not a proper defendant, that Hertford County was the proper defendant, and that the complaint could not be amended to add or substitute Hertford County as a defendant as the two-month statute of limitations by that time had run.

On 15 February 1999, the plaintiffs moved to amend the summons and complaint by substituting "Hertford County" as the named defendant in place of the Board of Commissioners. On 4 and 5 May 1999, the Board of Commissioners and plaintiffs, respectively, moved for summary judgment.

On 10 June 1999, Superior Court Judge James E. Ragan, III entered an order (1) denying the Board of Commissioners' motion to dismiss, (2) denying the plaintiffs' motion for summary judgment, and (3) granting the Board of Commissioners' motion for summary judgment. It does not appear from the record on appeal that the trial court ever ruled on the plaintiffs' motion to amend the summons and complaint. From the 10 June 1999 order, plaintiffs appeal and the Board of Commissioners cross-appeals.

On appeal, we consider only the Board of Commissioners' cross-appeal as its disposition precludes us from considering the plaintiffs' appeal.

The Board of Commissioners asserts that the trial court erred in denying its motion to dismiss under N.C.R. Civ. P. 12(b)(1), (2), (4), (6) and (7). It contends that Hertford County, rather than the Board of Commissioners, was the only proper defendant to this action, and that it was error for the plaintiffs to bring the action solely against the Board of Commissioners. Furthermore, the Board of Commissioners argues that the plaintiffs' attempts to amend the complaint to substitute the county as the named defendant were ineffective as they occurred after the statute of limitations had run. The Board of Commissioners contends that the amendment could not relate back to the original complaint so as to circumvent the statute of limitations. Because the cause of action against the county was time-barred, the Board of Commissioners argues that the trial court erred in denying its motion to dismiss. We must agree.

N.C. Gen.Stat. § 153A-11 states in relevant part that "[t]he inhabitants of each county are a body politic and corporate.... Under that name they ... may sue and be sued...." N.C. Gen.Stat. § 153A-11 (1991). In Fountain v. Board of Comm'rs of Pitt County, 171 N.C. 113, 87 S.E. 990 (1916), our Supreme Court considered Revisal 1905, § 1310 of the North Carolina General Statutes, a predecessor to the above-quoted language from N.C. Gen.Stat. § 153A-11, stating:

Prior to the amendment by Revisal, § 1310, a suit, for a claim due by a county was required to be brought against its board of commissioners, as Code, § 704, provided that a county should "sue and be sued in the name of the board of commissioners," while Revisal, § 1310, provides that a county must "sue and be sued in the name of the county."

Id. at 114, 87 S.E. at 991-92. Thereafter, in Johnson v. Marrow, 228 N.C. 58, 44 S.E.2d 468 (1947), our Supreme Court stated that "[w]here a county is the real party in interest, it must sue and be sued in its name." Id. at 59, 44 S.E.2d at 470 (citing Lenoir County v. Crabtree, 158 N.C. 357, 74 S.E. 105 (1912); Fountain, 171 N.C. 113, 87 S.E. 990).

Undoubtedly, the real party in interest in this case is Hertford County, not the Board of Commissioners. The plaintiffs acknowledged as much by seeking to amend their complaint in the wake of the Board of Commissioners' motion to dismiss to substitute Hertford County as the named defendant, despite the plaintiffs' subsequent contentions that the amendment was filed merely out of an abundance of caution. The question then is whether the defect in the complaint by naming the Board of Commissioners as the defendant instead of Hertford County was sufficient to bar recovery by the plaintiffs and thereby support the defendant's motion to dismiss, or whether the defect was merely technical in nature and thereby subject to remedy.

In Fountain, the plaintiff brought a contract action against "The Board of County Commissioners of the County of Pitt." 171 N.C. 113, 87 S.E. 990. The defendant demurred to the complaint on grounds that the complaint should have been against the county itself rather than the board of commissioners, as the complaint alleged no personal liability of the commissioners. The defendant maintained that an action against the county commissioners was not authorized by law. The trial court overruled the demurrer and ordered that Pitt County be made a party. Following the issuance of a new summons naming the county as a defendant, the trial court entered judgment for the defendant county because the new summons was issued after the statute of limitations had run on the cause of action.

On appeal by the plaintiff, our Supreme Court noted that the county was indeed the proper party to be sued rather than the board of commissioners; nonetheless, the Court reversed the trial court's decision to dismiss the complaint as time-barred. Id. at 114-15, 87 S.E. at 992. In doing so, the Court noted that it was readily apparent from the pleadings, as well as the body of the original complaint itself, that the suit was in reality against the county instead of the board of commissioners. Id. at 115, 87 S.E. at 992. The original summons, while naming the wrong defendant, was properly served prior to the running of the statute of limitations, and "would have been just as good and valid if the suit had been, in form, one against the county of Pitt, eo nomine." Id. at 114, 87 S.E. at 992. The Court also noted that the body of the complaint referred to the defendant as "the county of Pitt." Id. The Court therefore determined that the phrase "the Board of County Commissioners of" in the caption of the complaint was mere surplusage which, if eliminated, would leave only the name of the true defendant, the county. Id. The Court held that the trial court, under the statute, had broad power to amend any pleading in furtherance of justice, "by adding or striking out the name of any party or by correcting a mistake in the name of a party." Id. The amendment to the complaint was therefore proper, as "the misnaming of the defendant could not have misled the defendant as to the nature of the action or the party who was sued." Id. at 115, 87 S.E. at 992. Furthermore, the Court found it unnecessary to serve fresh process on the county under the circumstances, as the original process was properly served and was adequate to bring the county into court. Id. The Court effectively allowed the amendment to relate back to the original complaint, which allowed the Court to work around the statute of limitations and permit the action to proceed against the county.

While the broad statutory power to amend cited by the Court in Fountain no longer exists, our current Rules of Civil Procedure allow for discretionary amendments to pleadings by leave of court "when justice so requires." N.C. Gen.Stat. § 1A-1, Rule 15(a) (1990). As this Court stated in Thorpe v. Wilson, 58 N.C.App. 292, 293 S.E.2d 675 (1982), in allowing a similar name change:

"Names are to designate person, and where the identity is certain a variance in the name is immaterial." Patterson v. Walton, 119 N.C. 500, 501, 26 S.E. 43, 43 (1896). Errors or defects in the pleadings not affecting substantial rights are to be disregarded. Id. If, as here, the effect of amendment is merely to correct the name of a person already in court, there is no prejudice.

Id. at 297, 293 S.E.2d at 679. Thus, the trial court in its discretion could have properly allowed the plaintiff to amend its complaint to substitute the county as the named defendant instead of...