Pleadings--amended complaint--new party--no relation back
The trial court erred in a zoning case by denying defendant Board of Commissioners'
motion to dismiss under N.C.G.S. § 1A-1, Rules 12(b)(1), (2), (4), (6), and (7) based on
plaintiffs' error in bringing the suit against the Board of Commissioners rather than Hertford
County and plaintiffs' attempts to amend the complaint to substitute the county as the named
defendant instead of the Board of Commissioners after the statute of limitations under N.C.G.S.
§ 1-54.1 had run, because: (1) the notice requirement of N.C.G.S. § 1A-1, Rule 15(c) cannot be
met where an amendment has the effect of adding a new party to the action as opposed to
correcting a misnomer; and (2) a county is a separate and distinct entity from its board of
commissioners.
The Brough Law Firm, by Michael B. Brough and Robert E.
Hornik, Jr., for plaintiffs-appellants-cross appellees.
Smith, Helms, Mulliss & Moore, L.L.P., by James G. Exum, Jr.
and Robert R. Marcus, and Revelle, Burleson, Lee & Revelle by
Charles L. Revelle, III, 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 (residentialand 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]heinhabitants of each county are a body politi
c 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 recoveryby 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 the Board of Commissioners, if it found that justice so
required. However, as noted previously the record on appeal is
silent as to any ruling by the trial court on the plaintiffs'
motion to amend the summons and complaint.
Having determined that the county was the proper party
defendant in the cause of action, and assuming arguendo that the
trial court exercised its discretionary power and granted the
plaintiffs' motion to amend the complaint, we must determine
whether such amendment to the complaint substituting the county as
the party-defendant could have related back to the original
complaint, and thereby circumvented the statute of limitations. We
find that it could not.
We first note that the plaintiffs' original complaint was
filed on the last date on which they could file a timely complaint.
Unless the plaintiffs' amendment is permitted to relate back to the
date of the original complaint, the statute of limitations
therefore operates as a defense for the defendant and bars theplaintiffs' claims against the county. See N.C. Gen. Stat. § 1-
54.1 (1996) (imposing a two-month statute of limitations for
commencing an action contesting the validity of a zoning ordinance
or amendment adopted by a county).
In Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995), our
Supreme Court specifically held that an amendment to a pleading
changing the name of a party-defendant could not relate back to the
filing of the original complaint. Construing the relation back
rule, N.C. Gen. Stat. § 1A-1, Rule 15(c) (1990), the Court stated:
[Rule 15(c)] speaks of claims and allows the
relation back of claims if the original claim
gives notice of the transactions or
occurrences to be proved pursuant to the
amended pleading. When the amendment seeks to
add a party-defendant or substitute a
party-defendant to the suit, the required
notice cannot occur. As a matter of course,
the original claim cannot give notice of the
transactions or occurrences to be proved in
the amended pleading to a defendant who is not
aware of his status as such when the original
claim is filed. We hold that [Rule 15(c)]
does not apply to the naming of a new
party-defendant to the action. It is not
authority for the relation back of a claim
against a new party.
Id. at 187, 459 S.E.2d at 717 (emphasis added).
In subsequent cases, this Court has construed the Crossman
decision to mean that Rule 15(c) is not authority for the relation
back of claims against a new party, but may allow for the relation
back of an amendment to correct a mere misnomer. In White v.
Crisp, 138 N.C. App. 516, 530 S.E.2d 87 (2000), this Court held
that a plaintiff's attempts to amend her personal injury suit toname a defendant in his individual, rather than official, capacity
did not relate back to the filing of the original claim, and thus
the suit was time-barred. 138 N.C. App. at 521, 530 S.E.2d at 90.
In Bob Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330,
506 S.E.2d 752 (1998), we stated that “[t]he notice requirement of
Rule 15(c) cannot be met where an amendment has the effect of
adding a new party to the action, as opposed to correcting a
misnomer.” Id. at 331, 506 S.E.2d at 753 (emphasis added). There,
we rejected the plaintiff's argument that it never intended to add
a new party but instead sought only to correct an inaccurate
description, and that its intent to sue the proper defendant was
evident from the original complaint, stating that the “plaintiff's
intent . . . is not dispositive.” Id. at 332, 506 S.E.2d at 754.
Finding that the plaintiff sought to add a new party-defendant
rather than correct a misnomer, we declined to allow the amendment
to relate back under Rule 15(c). Id. at 333, 506 S.E.2d at 754.
In Wicker v. Holland, 128 N.C. App. 524, 495 S.E.2d 398
(1998), the plaintiff had sued several individuals for negligence
resulting in property damage arising out of work performed by Boles
Paving, Inc. Boles Paving, Inc. was not named as a party-defendant
in the original complaint, but a third-party complaint and a cross-
claim were filed against Boles Paving, Inc. by the individual
defendants, thereby providing notice to Boles Paving, Inc. of the
claims. Id. at 526, 495 S.E.2d at 399-400. Following the running
of the statute of limitations, the plaintiff sought to amend her
pleading to designate Boles Paving, Inc. as a defendant to theoriginal complaint in order to allow relation back under Rule
15(c). Id. at 526, 495 S.E.2d at 400. The trial court denied the
motion to amend and we affirmed, rejecting the plaintiff's argument
that Boles Paving, Inc. already had notice of the claim and would
suffer no prejudice by being designated a party-defendant. Id. at
527, 495 S.E.2d at 400. We stated that “[t]his argument is
irrelevant under Crossman's analysis of the limited reach of Rule
15(c). [The plaintiff] sought to add a party, and such action is
not authorized by the rule.” Id.
In the present case, the plaintiffs' original complaint and
summons names the Board of Commissioners as defendant. While there
is no dispute that Hertford County had notice of the claim prior to
the running of the statute of limitations, such notice is
irrelevant pursuant to our holding in Wicker. Instead, under our
holding in Killian Tire, the question becomes whether the
plaintiffs' amendment had the effect of adding a new party-
defendant or merely corrected a misnomer in the original complaint.
N.C. Gen. Stat. § 153A-12 provides in relevant part that
“[e]xcept as otherwise directed by law, each power, right, duty,
function, privilege and immunity of the [county] shall be exercised
by the board of commissioners.” N.C. Gen. Stat. § 153A-12 (1991).
While the Board of Commissioners is statutorily vested with the
power to exercise powers and rights on behalf of the county, this
is much like a board of directors acting on behalf of a
corporation. The corporation, being merely a legal
instrumentality, is incapable of acting on its own behalf, and theboard is therefore required to exercise the corporate powers. The
corporate body is therefore separate and distinct from its board of
directors, and a county is likewise an entity separate and distinct
from its board of commissioners.
The plaintiffs contend that their amendment merely seeks to
correct a misnomer reflected in the original complaint. See McLean
v. Matheny, 240 N.C. 785, 84 S.E.2d 190 (1954) (stating that
amendments to cure a misnomer in pleadings will ordinarily be
allowed “where the proper party is before the court, although under
a wrong name”); Wiles v. Welparnel Construction Co., 295 N.C. 81,
243 S.E.2d 756 (1978) (holding that a summons is adequate even
though addressed to a corporation's agent instead of the
corporation, where it is clear from the caption of the summons and
the complaint that it is the corporation, rather than the agent,
being sued); Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984)
(holding that the court's discretionary power to allow amendments
extends to amendments to correct a misnomer or mistake in the name
of a party in a summons or complaint, but not to substitute or
change a party entirely).
We note that the cases cited by the plaintiff all pre-date our
Supreme Court's decision in Crossman, and that Crossman and its
progeny have redefined the standard for what constitutes a misnomer
for purposes of the relation-back rule. We are unaware of any case
in our courts decided post-Crossman which has allowed an amendment
effecting a name change of any sort to relate back to the original
complaint. In Crossman, the plaintiff originally named Van DolanMoore as a party-defendant in a personal injury action arising out
of an automobile accident, even though it was his son, Van Dolan
Moore, II, who was the driver involved in the accident. 341 N.C.
at 186, 459 S.E.2d at 716. The accident report completed by the
police officer incorrectly named Van Dolan Moore as the driver,
although it listed Van Dolan Moore, II's driver license number.
See Crossman v. Moore, 115 N.C. App. 372, 444 S.E.2d 630 (1994)
(“Crossman I”). Upon learning that Van Dolan Moore, II was
actually the driver involved, the plaintiff moved to amend her
complaint and sought a ruling that the amendment would relate back
to the original complaint, thereby avoiding a statute of
limitations defense. Crossman, 341 N.C. at 186, 459 S.E.2d at 716.
Our Supreme Court affirmed the trial court's refusal to allow the
relation back of the amendment on grounds that Rule 15(c) does not
apply to amendments adding or substituting a party-defendant. Id.
In Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 450
S.E.2d 24 (1994), aff'd, 342 N.C. 404, 464 S.E.2d 46 (1995), the
plaintiffs had named “Winn Dixie Stores, Inc.” as the party-
defendant in their original complaint, and sought to amend the
complaint to name the proper defendant, “Winn Dixie Raleigh, Inc.”
Id. at 38, 450 S.E.2d at 30. The original complaint was filed on
the last date on which the plaintiffs could file a timely claim.
Id. The plaintiffs argued that the amendment, filed over seven
months later, merely corrected the name of a party already in
court, and should therefore relate back to the date of the original
complaint. Id. The trial court disagreed and this Court affirmed,finding that the failure to name the proper defendant was not the
result of a misnomer and therefore declining to allow the amendment
to relate back to the original complaint. Id. at 39-40, 450 S.E.2d
at 31. While our decision in Franklin was filed prior to our
Supreme Court's Crossman decision and was based upon a distinctly
different legal analysis, our Supreme Court later affirmed this
Court's Franklin decision on the basis of the holding in Crossman.
See Franklin v. Winn Dixie Raleigh, Inc., 342 N.C. 404, 464 S.E.2d
46 (1995).
We conclude that the plaintiffs' attempt to amend the summons
and complaint in the instant case by changing the name of the
party-defendant to Hertford County in place of the Board of
Commissioners effectively seeks to add a new party-defendant rather
than merely correct a misnomer, and the relation-back rule
therefore cannot apply. As a result, the plaintiffs' suit against
the county was time-barred under N.C. Gen. Stat. § 1-54.1, and the
trial court should have granted the defendant's motion to dismiss.
Since we conclude that the defendant was entitled to have this
action dismissed under N.C.R. Civ. P. 12(b), we need not consider
the correctness of the trial court's grant of summary judgment in
favor of the defendant. Nonetheless, we note that the trial
court's grant of summary judgment has the same practical effect of
having granted the defendant's motion to dismiss. We therefore
treat the defendant's motion for summary judgment as though it were
a converted motion to dismiss. See, e.g., North Carolina Steel,
Inc. v. National Council on Compensation Ins., 123 N.C. App. 163,472 S.E.2d 578 (1996), aff'd in part and rev'd in part, 347 N.C.
627, 496 S.E.2d 369 (1998). The trial court's 10 June 1999 order
granting summary judgment to the defendant is therefore,
Affirmed.
Judges McGEE and TIMMONS-GOODSON concur.
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