Tyson v. L'Eggs Products, Inc., 8620SC268

• Citation: 351 S.E.2d 834,84 N.C.App. 1
• Decision Date: 20 January 1987
• Docket Number: No. 8620SC268,8620SC268
• Court: North Carolina Court of Appeals
• Parties: Virginia TYSON and Rose Bennett v. L'EGGS PRODUCTS, INC., Edna M. Goodwin, Raymel Collins, Essie Knight, Mary Landon, Bettie Marks, Margaret Rogers, Joyce Henry, Patsy Mitchum, Debbie King, Ida McNeill, Wilma Bailey, Nan Davis, Nancy Arnette, Sandra Stewart.

Page 834

351 S.E.2d 834

84 N.C.App. 1

Virginia TYSON and Rose Bennett v. L'EGGS PRODUCTS, INC., Edna M. Goodwin, Raymel Collins Essie Knight, Mary Landon, Bettie Marks, Margaret Rogers Joyce Henry, Patsy Mitchum, Debbie King, Ida McNeill, Wilma Bailey, Nan Davis, Nancy Arnette, Sandra Stewart.

No. 8620SC268.

Court of Appeals of North Carolina.

Jan. 20, 1987.

Patrice Solberg, Chapel Hill, for plaintiffs-appellants.

Parker, Poe, Thompson, Bernstein, Gage & Preston by Max E. Justice and William L. Brown, Charlotte, for individual defendants-appellees.

Charles Y. Lackey, Winston-Salem, and Constangy, Brooks and Smith by Edward Katz and Terry Price, Atlanta, Ga., for corporate defendant-appellee.

BECTON, Judge.

I

This is a civil action for damages brought by Virginia Tyson and Rose Bennett against their employer, L'eggs Products, Inc. (the corporate defendant) and fourteen fellow employees (the individual defendants), based upon an allegedly defamatory letter. Sara Lee Corporation, of which L'eggs Products is a division, by special appearance moved to dismiss the suit as to the corporate defendant under Rule 12(b) for lack of jurisdiction, insufficiency of process and of service of process, and failure to state a claim for which relief could be granted, upon the grounds that L'eggs Products is not a legal entity capable of being sued in North Carolina. The individual defendants, in their Answer, moved to dismiss the action pursuant to Rule 12(b)(6) for failure to state a claim. The trial judge, after considering the pleadings, attached exhibits, affidavits related to jurisdiction and service of process, briefs and memoranda of all parties and the arguments of counsel, found that the defendants were entitled to judgment as a matter of law and granted the motions of all the defendants. Plaintiffs appeal. We affirm.

II

We first consider the position of the corporate defendant in this action. The sole issue raised in the parties' brief is whether the corporate defendant's motion to dismiss was properly granted on the grounds that it is not a legal entity capable of being sued in North Carolina.

A

These are the relevant facts. On 27 July 1981, Consolidated Foods Corporation, a Maryland corporation, registered its assumption of the assumed name "L'eggs Products, Inc." with the Register of Deeds of Richmond County, North Carolina. On 2 April 1985, Consolidated Foods changed its name to Sara Lee Corporation (Sara Lee), and retained the assumed name "L'eggs Products, Inc." for its L'eggs Products Division. An Amendment to Assumed Name registration reflecting these changes was executed on 3 April 1985 but was not filed with the Richmond County Register of Deeds until 5 July 1985.

The letter upon which this action is based was allegedly publicized in early June 1984. On 6 June 1985, plaintiffs filed the Complaint, and their summons was issued. In addition to the fourteen individual defendants, the captions of the complaint and summons named as corporate defendant, "L'eggs Products, Inc." The summons was directed to "L'eggs Products, Inc. c/o Registered Agent Proctor-Wayne Leggett, Route 2, Box 340, Fairmont, North Carolina 28340."

Proctor-Wayne Leggett is the registered agent for a corporation named "Leggs, Inc." which is a for-profit North Carolina corporation located in Fairmont, North Carolina and which is in no way related to Sara Lee or its L'eggs Products Division. The registered agent for Sara Lee (formerly Consolidated Foods) in North Carolina is and was C.T. Corporation System, Wachovia Bank Building, 100 South Corcoran Street, Durham, North Carolina.

In the Complaint the plaintiffs alleged: "Upon information and belief Defendant L'eggs Products, Inc. is a for-profit corporation organized under the laws of the State of North Carolina with its principal place of business at Winston-Salem, North Carolina, and owns a place of business in Richmond County, North Carolina, where it manufactures products for sale throughout North Carolina."

On 5 July 1985, Sara Lee, by special appearance and through counsel, served its motion to dismiss the defendant L'eggs Products, Inc. under Rules 12(b)(2), (4), (5), and (6) on account of lack of jurisdiction, insufficient process and service of process, and failure to state a claim for which relief can be granted. Thereafter, on 15 July 1985, the Amendment to Assumed Name Registration which was executed earlier in April of 1985 was filed with the Richmond County Register of Deeds.

On 14 August 1985, an Alias and Pluries Summons was issued, and directed to be served on "L'eggs Products, Inc., c/o Bill Flinchum, Post Office Box 2495, Winston-Salem, North Carolina 27102." William F. Flinchum is Sara Lee Corporation's Vice-President of Manufacturing in its L'eggs Products Division. The record contains the registry receipt, showing actual receipt of the complaint and summons by the defendant. On 23 September 1985, Sara Lee Corporation renewed its motion to dismiss the corporate defendant.

B

1. First, defendant's counsel contends that plaintiffs actually sued Leggs, Inc., the wrong corporation. As a result, their claim would be barred by the statute of limitations by the time the alias and pluries summons issued, even assuming the second summons cured the error by substituting the correct party. In support of its contentions, the defendant points to (1) the direction of the summons to defendant "c/o Registered Agent, Proctor-Wayne Leggett," and (2) the allegation in the complaint that the defendant "is a for profit corporation organized under the laws of the State of North Carolina." Because Proctor-Wayne Leggett is the registered agent for a for-profit North Carolina corporation called Leggs, Inc., defendant concludes that plaintiffs intended for the trial court to exert jurisdiction over Leggs, Inc. We disagree.

In Wiles v. Welparnel Construction Co., 295 N.C. 81, 243 S.E.2d 756 (1978), the court held that a summons directed to the registered agent of a corporation is not defective if the captions of the summons and complaint clearly indicate that the corporation and not the agent, is the intended defendant. In the case sub judice, the captions of the complaint and summons plainly named as defendant "L'eggs Products, Inc.," not "Leggs, Inc." Moreover, unlike the summons in Wiles which was addressed directly to the agent, this summons was directed to the corporate defendant in care of the agent. Therefore, Rule 4(b) of the Rules of Civil Procedure, which requires that a summons "be directed to the defendant," has been satisfied.

Furthermore, the erroneous description in the Complaint of defendant as a North Carolina corporation, rather than a Maryland corporation, is not sufficient grounds to find that Leggs, Inc. was the intended defendant. This is especially true since the same paragraph of the Complaint describes the defendant as having its principle place of business in Winston-Salem and as operating a place of business in Richmond County, both allegations which are true of L'eggs Products, Inc. but not of Leggs, Inc.

We conclude that plaintiffs did not sue the wrong corporation but merely sought service on the wrong agent. The function of an alias and pluries summons is to keep a lawsuit alive and maintain the original date of the commencement of the action when the original summons has not been properly served upon the original defendant named therein. See Roshelli v. Sperry, 63 N.C. App. 509, 305 S.E.2d 218, rev. denied, 309 N.C. 633, 308 S.E.2d 716 (1983). Thus plaintiffs' suit was properly instituted against L'eggs Products, Inc. within the statute of limitations period and was kept alive by the alias and pluries summons until service was properly made upon a corporate officer.

2. The corporate defendant's second position is that because L'eggs Products, Inc. is only a division of Sara Lee without separate corporate status, plaintiffs' action is directed against a legal nonentity which is incapable of being sued. Defendant further asserts that the failure of the Complaint and summons to name Sara Lee as defendant precludes the court from asserting jurisdiction over Sara Lee, and that any later attempt to do so constitutes an improper substitution of parties which is barred by the statute of limitations.

In its brief the defendant discusses a number of cases involving the relation back of amendments and the correction of misnomers which are inapposite to this case. For example, defendant cites Teague v. Asheboro Motor Co., 14 N.C.App. 736, 189 S.E.2d 671 (1972) to support its proposition that a plaintiff may not amend its summons and Complaint to substitute another party for a nonexistant corporation as defendant. In that case, the intended corporate defendant had changed its name from "Asheboro Motor Company, Inc." to "Rabb and York, Inc." and a new, unrelated corporation had assumed the company's old name. Thus, when plaintiff sued "Asheboro Motor Company, Inc." he literally sued the wrong legal entity and an amendment would have involved substituting an entirely new party after the statute of limitations had run.

In Crawford v. Aetna Casualty and Surety Co., 44 N.C.App. 368, 261 S.E.2d 25 (1979), cert. denied, 299 N.C. 329, 265 S.E.2d 394 (1980), the Complaint and summons named as defendant "Michigan Tool Company, a Division of Ex-Cell-O Corporation" and were served upon an officer of Ex-Cell-O. In fact, Michigan Tool Company was not a division of Ex-Cell-O but was a separate corporate entity which had been acquired and later dissolved by Ex-Cell-O. Accordingly, plaintiff's amendment deleting "Michigan Tool Company, a Division of" was improperly allowed because it, in effect, substituted a new defendant that had never been properly served.

Teague and Crawford are easily distinguished from the present case. In both those cases there was some attempt to substitute one legal entity for another as defendant, whereas in the case at bar we are...