Pleadings_name of defendant_amendment_relation back
The trial court erred in a negligence and breach of warranty
claim by not allowing plaintiff's amendment of the summons and
complaint to relate back to the original filing date where the
original complaint and summons listed “Seamark Foods” as
defendant and the amendment was to “Seamark Enterprises, Inc.”
This was not a case of substituting a corporation for an
individual, of adding a new party by adding defendants in their
official capacity, or of adding a third-party defendant not named
in the original complaint. These were not separate and distinct
entities; Seamark Enterprises was doing business under the name
Seamark Foods, the same attorneys have been involved from the
beginning, the original summons was served on the president of
“Seamark Enterprises, Inc.,” and defendant will suffer no
prejudice from the amendment. Plaintiff did not add or
substitute a new defendant to the action, but merely corrected a
misnomer.
Judith K. Guibert and Warren A. Hampton for plaintiff-
appellant.
Yates, McLamb & Weyher, L.L.P., by Jason D. Newton, for
defendant-appellee.
EAGLES, Chief Judge.
Saul Guy Liss (“plaintiff”) moved to amend the complaint in
his negligence and breach of warranty action to correct the name of
“Seamark Enterprises, Inc.” (“defendant”) and for the amendment to
relate back to the filing of the original complaint. The trial
court granted plaintiff's Rule 15 motion to amend. The trial court
granted defendant's Rule 12(b) motion to dismiss in accordance withCrossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995) and Bob
Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330, 506
S.E.2d 752 (1998). Plaintiff appeals from the trial court's order
of dismissal. After careful consideration of the briefs and record,
we reverse.
On 29 May 1997, plaintiff purchased a jar of oysters from
“Seamark Foods” store in Kitty Hawk, North Carolina. Plaintiff ate
the oysters later that day and became ill. On 31 May 1997,
plaintiff sought treatment at the Outer Banks Medical Center in
Nags Head, North Carolina. Plaintiff was admitted to Chesapeake
General Hospital in Chesapeake, Virginia on 1 June 1997. He tested
positive for Aeomonas Sobria and was diagnosed with infectious
diarrhea. Plaintiff was discharged on 5 June 1997.
Plaintiff's complaint was dated 9 May 2000 and the summons was
issued on 11 May 2000. The complaint and the summons listed
“Seamark Foods” as defendant. The addresses listed on the summons
for “Seamark Foods” were 5400 N. Croatan Highway, Kitty Hawk, North
Carolina and 5000 S. Croatan Highway, Nags Head, North Carolina.
On 17 May 2000, a Deputy Sheriff for Dare County served Tim Walters
at the 5400 N. Croatan Highway location and Bret Ference, on 19 May
2000, at the 5000 S. Croatan Highway location. Tim Walters is the
president of “Seamark Enterprises, Inc.” A Certificate of Assumed
Name filed with the Register of Deeds for Dare County provides that
“Seamark Enterprises, Inc.” is a North Carolina corporation that
operates a business under the assumed name of “Seamark Foods.”
“Seamark Foods” moved for an extension of time to answer on 12
June 2000 which was granted by the court. After the expiration ofthe statute of limitations, “Seamark Enterprises, Inc.” filed R
ule
12(b)(2), (3), (5), and (6) motions to dismiss. Plaintiff filed a
motion to amend the complaint and summons to name “Seamark
Enterprises, Inc.” as defendant and for the amendment to relate
back to the filing of the complaint pursuant to Rule 15(c). At a
hearing on 31 July 2000, the court granted plaintiff's motion to
amend the summons and complaint. The court then granted “Seamark
Enterprises, Inc.'s” motion to dismiss with prejudice. Plaintiff
appeals.
Plaintiff contends that the trial court erred by not allowing
plaintiff's amendment of the summons and complaint to relate back
to the original filing date. After careful review, we agree and
reverse.
First, plaintiff voluntarily dismissed “Willie R. Etheridge
Seafood Company, Inc.,” co-defendant, as they were not involved
with “Seamark Foods” stores when the cause of action arose. The
trial court's refusal to allow relation back of the amendment to
the summons and complaint determines this action since “Seamark
Enterprises, Inc.” may plead the statute of limitations as a
defense. The three year statute of limitations expired on 29 May
2000.
The relation back of amendments is the subject of Rule 15(c)
of the North Carolina Rules of Civil Procedure and provides:
(c) Relation back of amendments. . A claim
asserted in an amended pleading is deemed to
have been interposed at the time the claim in
the original pleading was interposed, unless
the original pleading does not give notice of
the transactions, occurrences, or series of
transactions or occurrences, to be proved
pursuant to the amended pleading.
G.S. § 1A-1, Rule 15(c) (1999).
Our Supreme Court interpreted Rule 15(c) in Crossman v. Moore,
341 N.C. 185, 459 S.E.2d 715 and stated:
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 this rule 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.
We have 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.” Piland v. Hertford County Bd. of
Comm'rs, 141 N.C. App. 293, 299, 539 S.E.2d 669, 673 (2000). In
Bob Killian Tire, 131 N.C. App. 330, 506 S.E.2d 752, 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
(citing Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715
(1995))(emphasis added).
The question becomes whether the defect in the name is
“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.” Piland, 141
N.C. App. 293, 296, 539 S.E.2d 669, 671.
“Seamark Enterprises, Inc.” contends that the amendment hasthe effect of adding a new party to the action
and Crossman should
bar relation back of the complaint. Plaintiff contends that the
amendment is merely a misnomer so the amendment should relate back
to the original filing date of the complaint.
We are aware “that Crossman and its progeny have redefined the
standard for what constitutes a misnomer for purposes of the
relation-back rule” and conversely “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.” Piland, 141 N.C. App. 293, 300-01, 539 S.E.2d 669,
674. However, this is not a case of substituting a corporation for
an individual. See Bob Killian Tire, 131 N.C. App. 330, 333, 506
S.E.2d 752, 754 (holding that the plaintiff's amendment sought to
substitute an individual for a corporate defendant and “thereby
nam[ed] a new party-defendant rather than correct[ed] a misnomer”).
Nor is it a case of adding a new party by amending the complaint to
add defendants in their official capacity rather than individual
capacity or vice versa. See Rogerson v. Fitzpatrick, 121 N.C. App.
728, 732, 468 S.E.2d 447, 450 (1996) (“Because Crossman prohibits
the addition of new defendants under Rule 15(c), plaintiff's claims
against the City and the officers in their official capacities may
not take on the filing date of his original complaint . . . .”);
White v. Crisp, 138 N.C. App. 516, 530 S.E.2d 87 (2000) (holding
that amending the complaint to include defendant in his individual
capacity had the effect of adding a new party and relation back was
not proper under Crossman). Nor is this a case of plaintiff
wanting to substitute one corporation for a separate corporation. See Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. A
pp. 28, 450
S.E.2d 24 (1994), aff'd per curiam, 342 N.C. 404, 464 S.E.2d 46
(1995) (holding that amendment substituting “Winn Dixie Raleigh,
Inc.” for “Winn Dixie Stores, Inc.” was adding a new party and not
correcting a misnomer when both were separate corporations). It is
also not a case of plaintiff amending his complaint adding a third-
party defendant not named in the original complaint. See Wicker v.
Holland, 128 N.C. App. 524, 495 S.E.2d 398 (1998) (holding that
amending complaint to include third-party defendant after
expiration of statute of limitations is adding a new party and
therefore prohibited under Crossman).
Here, plaintiff is not attempting to add a new party to the
action. Plaintiff is correcting the name of defendant. A misnomer
is a “[m]istake in name; giving incorrect name to person in
accusation, indictment, pleading, deed or other instrument.”
Black's Law Dictionary 1000 (6th ed. 1990). A misnomer would be
technical in nature and subject to remedy.
The complaint and summons named “Seamark Foods” as defendant.
In the complaint, plaintiff alleged that “Seamark Foods” was a
“corporation organized and doing business in North Carolina, with
its principal place of business in Nags Head, Dare County, North
Carolina, and also conducts business at 5400 North Croatan Highway,
Kitty Hawk, North Carolina 27949.” “Seamark Enterprises, Inc.”
engaged in business under the name and title of “Seamark Foods” as
evidenced by the Certificate of Assumed Name filed with the Dare
County Register of Deeds. This certificate was signed by Timothy
Walters as “President” of “Seamark Enterprises Inc.” These are nottwo separate and distinct entities. Plaintiff is me
rely correcting
a mistake in the name of defendant.
In addition, Crossman was concerned with an amendment of a
name not providing the required notice. Crossman, 341 N.C. 185,
187, 459 S.E.2d 715, 717. In Crossman, the original claim would
not have provided the required notice since the newly named
defendant “[was] not aware of his status as such when the original
claim [was] filed.” Id. Here, “Seamark Enterprises, Inc.” was not
subject to this lack of notice. The president of “Seamark
Enterprises, Inc.” was served personally with the original claim at
a “Seamark Foods” store. Defendant's request for an extension of
time to answer and the certificate of service were from Yates,
McLamb & Weyher as attorney for “Defendant Seamark Foods.”
Defendant's motion to dismiss and certificate of service were from
Yates, McLamb & Weyher as attorney for “Defendant Seamark
Enterprises, Inc.” Defendant's brief in support of its motion to
dismiss and the certificate of service were from Yates, McLamb &
Weyher as attorney for “Defendant Seamark Enterprises, Inc.,
improperly designated as Seamark Foods.” The same attorneys have
been involved and representing “Seamark Enterprises, Inc.” from the
beginning of the action. “Seamark Enterprises, Inc.” cannot argue
that they did not receive notice of the original claim.
Rule 15(c) is modeled after New York Civil Practice Law and
Rules Sec. 203(e) (now codified as N.Y. CPLR Law § 203(f)(McKinney
Cumm. Supp. 2001)). W. Brian Howell, Shuford North Carolina Civil
Practice and Procedure § 15-5 (5th ed. 1998). Crossman held the
interpretation given to Rule 15(c) is “consistent with theinterpretation given a similar statute in New York.” Crossman,
341
N.C. 185, 187, 459 S.E.2d 715, 717.
Under the law of New York, correction of a misnomer in a
pleading is allowed even after the expiration of the statute of
limitations provided certain elements are met. Ober v. Rye Town
Hilton, 159 A.D.2d 16, 557 N.Y.S.2d 937 (1990). See also Perrin v.
McKenzie, 266 A.D.2d 269, 698 N.Y.S.2d 41 (1999); Bracken v.
Niagara Frontier Transportation Authority, 251 A.D.2d 1068, 674
N.Y.S.2d 221 (1998); Pugliese v. Paneorama Italian Bakery Corp.,
243 A.D.2d 548, 664 N.Y.S.2d 602 (1997). “An amendment to correct
a misnomer in the description of a party defendant may be granted
after the expiration of the Statute of Limitations if (1) there is
evidence that the intended defendant has in fact been properly
served, and (2) the intended defendant would not be prejudiced by
the amendment.” Pugliese, 243 A.D.2d at 549, 664 N.Y.S.2d at 603.
Here, there is evidence that the intended defendant, “Seamark
Enterprises, Inc.”, was properly served. An affidavit from a Dare
County Deputy Sheriff establishes that a copy of the summons was
served on 17 May 2000 upon Timothy Walters. The president of
“Seamark Enterprises, Inc.” is Timothy Walters.
“Seamark Enterprises, Inc.” would not be prejudiced by the
amendment. After its president was served, “Seamark
Foods/Enterprises, Inc.” through counsel moved for an extension of
time to answer and then filed a motion to dismiss. Through its
president, defendant had notice of the action from the beginning
and would suffer no prejudice as a result of the amendment.
Here, “we are concerned with only one legal entity which usestwo names,” not an “attempt to substitu
te one legal entity for
another as defendant.” Tyson v. L'Eggs Products, Inc., 84 N.C.
App. 1, 6, 351 S.E.2d 834, 837 (1987). Plaintiff did not add or
substitute a new defendant to the action, he merely corrected a
misnomer in the summons and complaint.
Accordingly, the decision of the trial court is reversed and
the cause is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
Judges HUNTER and HUDSON concur.
*** Converted from WordPerfect ***