An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1177


Filed: 3 June 2003


v .                             Rutherford County
                                No. 01 CVS 1224

Corporation, XYZ Corporations
1 through 10, JOHN DOES 1 through
10, and JANE DOES 1 through 20,

    Appeal by plaintiff from order entered 4 April 2002 by Judge Loto Greenlee Caviness, Superior Court, Rutherford County. Heard in the Court of Appeals 13 May 2003.

    Vic O'Brien pros se.

    Cogburn, Goosmann, Brazil & Rose, P.A., by Patricia L. Arcuri, for the appellee.

    WYNN, Judge.

    For the reasons given in Franklin v. Winn-Dixie Raleigh, Inc., 117 N.C. App. 28, 450 S.E.2d 24 (1994); aff'd per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995)(holding that under Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995) an 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), we hold that the trial court correctly found that plaintiff's amended complaint substituting “Winn-Dixie, aCorporation” for “Winn-Dixie Charlotte, Inc.” added a new party and did not correct a misnomer when the former is a nonexistent corporation in North Carolina, and the latter is an existing corporation in North Carolina. see Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995)(holding that the relation back principle in Rule 15(c) does not apply when the amendment seeks to add or substitute a party-defendant to the suit); See also, Liss v. Seamark Foods, 147 N.C. App. 281, 284-85, 555 S.E.2d 365, 367-68 (2001)   (See footnote 1) 
    Accordingly, we uphold the trial court's dismissal of plaintiff's action.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
        Plaintiff also argues that Winn-Dixie Charlotte, Inc., had actual notice of the plaintiff's claims because the same person was served the original and amended complaint. This Court rejected that argument in Wicker v. Holland, 128 N.C. App. 524, 495 S.E.2d 398 (1998).

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