Rankin v. Lion

• Citation: 706 S.E.2d 310
• Decision Date: 01 March 2011
• Docket Number: No. COA10–392.,COA10–392.
• Parties: Pamela RANKIN, Plaintiff–Appellantv.FOOD LION, d/b/a Delhaize America Inc., Food Lion, Inc., and Food Town Stores, Inc., and Food Lion Store # 276, Defendant–Appellees.
• Court: Court of Appeal of North Carolina (US)

706 S.E.2d 310

Pamela RANKIN, Plaintiff–Appellant

v.FOOD LION, d/b/a Delhaize America Inc., Food Lion, Inc., and Food Town Stores, Inc., and Food Lion Store # 276, Defendant–Appellees.

No. COA10–392.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiff from judgment entered 1 December 2009 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2010.

Pamela A. Hunter, Charlotte, for Plaintiff–Appellant.

Patterson Dilthey, LLP, Raleigh, by Julie L. Bell, for Defendants–Appellees.

ERVIN, Judge.

Plaintiff Pamela Rankin appeals from an order granting summary judgment in favor of Defendants Food Lion d/b/a Delhaize American Inc.; Food Lion, Inc.; Food Town Stores, Inc.; and Food Lion Store # 276 concerning her claim alleging that Plaintiff sustained personal injuries as a result of Defendants' negligence. After careful consideration of Plaintiff's challenges to the trial court's decision in light of the record and the applicable law, we conclude that the trial court properly granted summary judgment in favor of Defendant and that its order should be affirmed.

I. Factual and Procedural Background

On 29 May 2009, Plaintiff filed an unverified complaint against Defendants in which she alleged that, while shopping at Food Lion Store # 276 in Charlotte, North Carolina, on 24 June 2006, she slipped and fell in spilled soda while proceeding through the checkout line and sustained serious injuries. Plaintiff asserted that her injuries proximately resulted from Defendants' breach of their duty to maintain the store's floors in a safe manner, entitling her to recover compensatory and punitive damages.

On 16 October 2009, Defendants filed an answer in which they denied the material allegations of Plaintiff's complaint and sought dismissal of her claim. Defendant Food Lion Store # 276 moved to dismiss Plaintiff's claim on the grounds that “it is not an entity and therefore cannot be sued,” while all Defendants jointly moved that Plaintiff's complaint be dismissed pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(7), for failure to join a necessary party and, pursuant to N.C. Gen.Stat. § 1A–1, Rules 12(b)(4) and (5), for “lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process.” Defendants also disputed the validity of Plaintiff's claim for punitive damages.

On 21 October 2009, Defendants filed a motion for summary judgment in which they alleged, in pertinent part, that:

... Plaintiff cannot prove negligence against Defendant Delhaize America, Inc., because Plaintiff cannot prove that Defendant Delhaize America, Inc. operated or had any control over the Food Lion store where this incident occurred on the date of the incident. Further, Defendant Food Lion, Inc and Food Town, Stores, Inc are no longer corporate entities as their names changed and the surviving entity is Delhaize America, Inc. In addition, Plaintiff has failed to join Food Lion, LLC, the entity that operates the grocery store where this incident happened, which is a necessary party to this action and Plaintiff cannot now add Food Lion, LLC as the statute of limitations has expired. Further, Food Lion Store # 276 is not a legal entity and therefore cannot be sued.

In support of their summary judgment motion, Defendants submitted the affidavit of Jason D. Stevens, Senior Corporate Counsel for Food Lion, LLC, in which Mr. Stevens asserted, among other things, that (1) Defendant Food Lion Store # 276 is not a legal entity; (2) neither Defendant Food Lion, Inc., nor Defendant Food Town Stores, Inc., currently exists; and (3) Defendant Delhaize America, Inc., is a holding company with no role in the operation of the Food Lion store in which Plaintiff allegedly fell. On 1 December 2009, the trial court conducted a hearing on Defendants' summary judgment motion and granted summary judgment in Defendants' favor. Plaintiff noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Standard of Review

A trial court properly grants summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2010). As a result, the “standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Bruce–Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). The movant “has the burden of establishing the lack of any triable issue of fact.” Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “ ‘When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). In addition, “ ‘[i]f the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal. If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered.’ ” Haugh v. County of Durham, –––N.C.App. ––––, ––––, 702 S.E.2d 814, 819 (2010) (quoting Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)).

B. Legal Analysis

1. Legal Status of Delhaize America, Inc.

First, Plaintiff argues that the trial court erred by entering summary judgment in favor of Defendants on the grounds that “the evidence of record clearly establishes that the Defendant, Food Lion's legal owner, as registered with the Secretary of State for the State of North Carolina is Delhaize America, Inc.” A careful review of the record demonstrates, however, that the materials upon which Plaintiff relies in support of this assertion are not admissible and could not, for that reason, have been properly considered by the trial court in ruling on Defendants' summary judgment motion.

The essential basis upon which Defendants sought summary judgment with respect to Plaintiff's negligence claim was that Defendant Delhaize America, Inc., had no control over the Food Lion store where Plaintiff allegedly fell; that Defendant Food Lion # 276 is not a legal entity capable of suing and being sued; and that the remaining two defendants, Food Lion, Inc., and Food Town Stores, Inc., no longer exist. In addition, Defendants asserted that Food Lion, LLC, is the corporate entity that operates the Food Lion store in which Plaintiff allegedly fell; that Plaintiff had not named Food Lion, LLC, as a party defendant; and that Plaintiff could no longer join Food Lion, LLC, as a party defendant because the statute of limitations applicable to Plaintiff's claim had expired. In his affidavit in support of Defendants' motion, Mr. Stevens stated that, as senior corporate counsel for Food Lion, LLC, he was “familiar with the corporate form, history and relationship between Food Lion, LLC and Delhaize America Inc.” In addition, Mr. Stevens asserted that:

3. All Food Lion retail grocery stores in North Carolina are operated by Food Lion, LLC and were operated by Food Lion, LLC on June 24, 2006 including Food Lion Store, No. 276.

4. Food Lion, LLC is a wholly owned subsidiary of Delhaize America Inc.

5. Delhaize America Inc. does not do business as Food Lion and did not do business as Food Lion on June 24, 2006.

6. Delhaize America Inc. is a holding company for Food Lion, LLC and other corporate entities and does not and did not on June 24, 2006 have any role in operation or control of the Food Lion store where the incident that is the subject of the Complaint in this action is alleged to have occurred.

7. Delhaize America, Inc. does not control the operation of Food Lion, LLC.

8. Food Lion, Inc. is the former name of Delhaize America, Inc.

9. Food Town Stores, Inc. is the former name of Food Lion, Inc.

10. Neither Food Lion, Inc. nor Food Town Stores, Inc. currently exists.

11. Food Lion Store # 276 is not a legal entity.

As a result, the information contained in Mr. Stevens' affidavit establishes that none of the Defendants are legally liable for the alleged negligence of employees at Food Lion Store # 276. For that reason, we conclude that Defendants adequately supported their request for the entry of summary judgment.

“ ‘Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.’ ” Pacheco v. Rogers and Breece, Inc., 157 N.C.App. 445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway, 139 N.C.App. 778, 784–85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)). “ ‘To hold otherwise ... would be to allow plaintiffs to rest on their pleadings, effectively neutralizing the useful and efficient procedural tool of summary judgment.’ ” Id. (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992)). A thorough review of the record compels us to conclude that Plaintiff failed to respond to Defendants' properly supported summary judgment motion with admissible evidence tending to show the existence of any genuine issue of material fact relevant to Plaintiff's negligence claim.

In challenging the trial court's order granting summary judgment on appeal, Plaintiff does not dispute the validity of Defendants' contentions that Defendant Food Lion Store # 276 is not a legal entity and that neither Defendant Food Lion Inc., nor Defendant Food Town Stores, Inc., currently exists. Instead, Plaintiff seeks reversal of the...