1. Appeal and Error_-improper assignment of error--discretionary hearing of appeal
Although plaintiffs' assignment of error fails to state the legal basis upon which error is
assigned and is not confined to a single issue of law, the Court of Appeals exercised its
discretion under N.C. R. App. P. 2 to hear the appeal.
2. Process and Service--service of summons--motion for extension of time--discretion
of trial court
The trial court erred by mistakenly believing that it did not have the discretion to
consider plaintiffs' motions to extend the time for service of the summons, and the case is
remanded to the trial court to consider whether to exercise its discretion to extend the time based
on the inquiry of excusable neglect in regards to serving a dormant summons because: (1)
although the alias and pluries summons became dormant after sixty days, prior to plaintiffs'
effectuating service on 20 November 2002, it was before expiration of the summons on 20
November 2002; and (2) the summons was merely dormant at the time of service, it had not
expired, and the trial court had the discretion to retroactively extend the time for service of the
alias and pluries summons.
3. Process and Service_-wrong name on summons--sufficiency of service
A summons served on defendant Ocean Side was sufficient to meet requirements of Rule
4 for service of process although it was directed to defendant Con-Am and Ocean Side's name
did not appear on the summons because there was no substantial possibility of confusion about
the identity of Ocean Side as a party being sued where Ocean Side received the summons by
certified mail, addressed to Ocean Side, and its name appeared on the complaint contained
therein.
Bradsher, Grissom & Holloman, PLLC, by Wallace W. Bradsher,
Jr., for plaintiffs-appellants.
Patterson, Dilthey, Clay, Bryson & Anderson, LLP, by Stuart L.
Egerton, for defendant-appellant [Ocean Side Corporation].
STEELMAN, Judge.
Plaintiffs, Leroy and Rosemary Wetchin, et al, appeal the
trial court's order denying their motion for extension of time and
denying their motion to amend, and granting defendant Ocean Side
Corporation's motion to dismiss. For the reasons discussed herein,
we reverse and remand this matter.
This appeal deals only with defendant, Ocean Side Corporation
(Ocean Side), since plaintiffs filed a notice of voluntary
dismissal as to the other defendant, Can-Am Development
Corporation, L.L.C. (Can-Am).
On 3 April 2000, plaintiff brought suit against Ocean Side in
the Brunswick County Superior Court (File No. 00 CVS 539).
Plaintiffs dismissed this action without prejudice on 24 September
2001. Plaintiffs refiled their lawsuit, the instant action, on 31
May 2002, adding Can-Am as a party defendant. That same day, the
Clerk of Superior Court issued separate civil summonses, directed
to each of the defendants. Plaintiffs did not serve these
summonses on either defendant. On 29 August 2002, the Clerk of
Court issued separate alias and pluries summonses for each
defendant. On 14 November 2002, plaintiffs' counsel mailed a copy
of the summons and complaint to each defendant by certified mail.
While each mailing included a copy of the complaint, Ocean Side was
sent the summons directed to Can-Am, and Can-Am was sent the
summons directed to Ocean Side. The summons mailed to Ocean Side
was directed to “Gordon N. Titcomb, Can-Am Development Corporation,
L.L.C., 6401 Orr Rd., Charlotte, NC 28213.” Nowhere in the summons
sent to Ocean Side was Ocean Side, or its agent's name mentioned,
including in the caption of the summons. Ocean Side received thecertified mailing on 20 November 2002. On 26 November 2002,
counsel for plaintiff filed an affidavit of service by certified
mail, asserting that a copy of the summons and complaint was served
on “WJ McLamb at 101255 Hwy. 179 Box 4640, Calabash, North
Carolina.”
Ocean Side moved to dismiss plaintiffs' complaint on 17
December 2002, pursuant to Rule 12(b)(2), Rule 12(b)(4), and Rule
12(b)(5) of the North Carolina Rules of Civil Procedure. These
motions came on for hearing before Judge Jenkins on 28 February
2003. The morning of the hearing plaintiffs filed a motion
requesting the court “extend the summons as OCEAN SIDE CORPORATION
for thirty days to and including up [sic] November 27, 2002.”
During the course of the hearing, plaintiffs made an oral motion to
amend the summons directed to Can-Am so that it was directed to
defendant Ocean Side. Judge Jenkins entered an order on 13 May
2003 containing the following rulings: (1) Ocean Side's motion to
quash the attempted service and dismiss plaintiffs' action was
granted; (2) plaintiffs' written motion to extend the summons until
27 November 2002 was denied; and (3) plaintiffs' oral motion to
amend the summons was denied. The order was signed out of county
and out of session by consent of the parties. Plaintiffs appeal.
Plaintiffs' bring forward one assignment of error, which reads
as follows: “The ruling of the trial court in its Order of
Dismissal entered on May 13, 2003.”
Our review of a matter on appeal is “confined to a
consideration of those assignments of error set out in the record
on appeal . . . .” N.C. R. App. P. 10(a). Rule 10(c)(1) setsforth the requirements for the form of an assignment of error,
stating:
Each assignment of error shall, so far as
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. An assignment of
error is sufficient if it directs the
attention of the appellate court to the
particular error about which the question is
made, with clear and specific record or
transcript references.
N.C. R. App. P. 10(c)(1).
[1] Plaintiffs' assignment of error fails to state the legal
basis upon which error is assigned and is not confined to a single
issue of law. Rather, the assignment is a broadside attack on the
trial court's order, not specifying which of the court's three
rulings was erroneous. Such an assignment of error is designed to
allow counsel to argue anything and everything they desire in their
brief on appeal. “This assignment _ like a hoopskirt _ covers
everything and touches nothing.” State v. Kirby, 276 N.C. 123,
131, 171 S.E.2d 416, 422 (1970). It is an improper assignment of
error. Id. Despite this defect, we choose to exercise our
discretion under Rule 2 of the Rules of Appellate Procedure and
address plaintiffs' appeal on the merits.
[2] Plaintiffs contend the trial court mistakenly believed it
did not have the discretion to consider its motions to extend the
time for service of the summons and to amend the summons served to
Ocean Side.
We note that plaintiffs failed to assign error to any of the
findings of fact contained in Judge Jenkins' order, thus they are
presumed correct and are binding on appeal.
In re Beasley, 147N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001)
.
Our review is
therefore limited to whether the trial court's findings of fact
support its conclusions of law and whether those conclusions of law
represent a correct application of the law.
See Armstrong v.
Armstrong, 322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988).
The alias and pluries summons was issued on 29 August 2002.
Under Rule 4(c) of the Rules of Civil Procedure, plaintiffs were
required to serve the summons on Ocean Side within sixty days of
the date of issuance. N.C. Gen. Stat. § 1A-1, Rule 4(c) (2004).
Upon the expiration of the sixty days, the alias and pluries
summons became dormant, and any service effected thereafter does
not confer jurisdiction over the case upon the trial court.
Hollowell v. Carlisle, 115 N.C. App. 364, 366, 444 S.E.2d 681, 682
(1994). However, the expiration of the sixty day period does not
discontinue the action, since under Rule 4(d) plaintiffs could have
secured an endorsement to the summons, or caused another alias and
pluries summons to be issued within ninety days from the date of
issuance. N.C. Gen. Stat. § 1A-1, Rule 4(d) (2004).
In the instant case, the trial court held that plaintiffs'
motion to extend the time for service of the alias and pluries
summons was “outside of its power to grant,” citing the case of
Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635, disc. review
denied, 332 N.C. 480, 420 S.E.2d 826 (1992). The trial court
further concluded that if it were permitted to do so, it would
exercise its discretion and extend the time for service, but it was
of the opinion that it did not have discretion to prevent adiscontinuance of this action. We hold this conclusion was
erroneous.
The case of Dozier v. Crandall and the more recent case of
Russ v. Hedgcock, 161 N.C. App. 334, 588 S.E.2d 69 (2003), disc.
review denied, 358 N.C. 545, 599 S.E.2d 407 (2004), involve
identical fact situations which differ materially from that
presented in the instant case. In both Dozier and Russ, the
summons was not served within ninety days, and the action was
discontinued. The plaintiffs subsequently obtained an alias and
pluries summons, which was served upon the defendant. In each
case, the plaintiff sought an order extending the time for issuance
of the alias and pluries summons. This Court held in each case
that once the summons expired because of the passage of ninety
days, the action was discontinued. Russ, 161 N.C. App. at 336, 588
S.E.2d at 70; Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638. Upon
discontinuance of the action, the statute of limitations barred the
plaintiff's claims and the trial court was without authority to
retroactively extend the time for issuance of the alias and pluries
summons. Russ, 161 N.C. App. at 337, 588 S.E.2d at 71; Dozier, 105
N.C. App. at 78, 411 S.E.2d at 638.
The instant case is controlled by Lemons v. Old Hickory
Council, 322 N.C. 271, 367 S.E.2d 655 (1988). In Lemons, the
plaintiff was injured on 15 May 1982, and originally filed suit on
21 March 1984. Plaintiff dismissed the action on 6 February 1985,
but refiled it on 6 February 1986. An alias summons was issued on
2 May 1986 and was served on 5 June 1986, after the summons hadbecome dormant.
(See footnote 1)
The defendant moved to dismiss the plaintiff's
action. The plaintiff moved the trial court for a retroactive
extension of time from 2 June 1986 to 6 June 1986, to serve the
alias summons. The trial court denied the motion, holding that
under Rule 6(b) of the Rules of Civil Procedure it did not have the
authority to enlarge the time for service. Id. at 273, 367 S.E.2d
at 656. It further held the plaintiff's failure to obtain service
until 5 June 1986 was the result of “excusable neglect.” Id. The
Supreme Court reversed, stating “Rule 6(b) grants our trial courts
broad authority to extend any time period specified in any of the
Rules of Civil Procedure for the doing of any act, after expiration
of such specified time, upon a finding of 'excusable neglect.'”
Id. at 276, 367 S.E.2d at 658. It therefore held that “pursuant to
Rule 6(b) our trial courts may extend the time for service of
process under Rule 4(c).” Id. at 277, 367 S.E.2d at 658.
The instant case is factually identical to Lemons. The alias
and pluries summons became dormant after sixty days, prior to
plaintiffs' effectuating service on 20 November 2002, but before
the expiration of the summons on 27 November 2002. The summons was
merely dormant at the time of service; it had not expired and the
trial court had the discretion to retroactively extend the time for
service of the alias and pluries summons.
We hold that the trial court erred in determining that it
lacked the discretion to extend the time for service of the alias
and pluries summons in this case. This matter is remanded to thetrial court to consider whether or not to exercise its discretion
to extend the time for service of the alias and pluries summons.
It should be noted that the motion to extend the time for
service of the alias and pluries summons was made after the
expiration of the time for service, and under the provisions of
Rule 6(b), the trial court must find that the “failure to act was
the result of excusable neglect.” N.C. Gen. Stat. § 1A-1, Rule
6(b) (2004). In its order, the trial court found that excusable
neglect “could have occurred” as a result of depositing the summons
and complaint into the mail after they became dormant, and sending
the wrong summons to Ocean Side. With respect to plaintiffs'
motion to extend the time for service of the summons, the relevant
inquiry concerning excusable neglect pertains to the delay in
serving a dormant summons, and not to the sending of the wrong
summons to Ocean Side.
[3] We now turn to the issue of whether the trial court erred
in determining that it did not have discretion to amend the summons
served on Ocean Side to change the name on the summons from Can-Am
to Ocean Side.
Plaintiffs contend this issue is controlled by Harris v.
Maready, 311 N.C. 536, 319 S.E.2d. 912 (1984), disc. review denied,
320 N.C. 168, 358 S.E.2d 50 (1987), while Ocean Side contends it is
controlled by Stone v. Hicks, 45 N.C. App. 66, 262 S.E.2d 318
(1980). Each of these cases deals with the service of the wrong
summons upon a party, but do not deal, in relevant parts, with theissue of amending the summons.
(See footnote 2)
The threshold issue in this case
is whether the summons served on Oceanside was sufficient to meet
the requirements of Rule 4. We hold that it was, and therefore, do
not reach the amendment question.
In Stone, this Court held that the service of the summons was
fatally defective and as a result, was insufficient to confer
jurisdiction, where the summons delivered to the first defendant
named the second defendant and the summons delivered to the second
defendant named the first defendant. 45 N.C. App. at 67-68, 262
S.E.2d at 319-20. In Harris, a deputy sheriff delivered a copy of
a summons to Maready. This summons was directed to a different
defendant. Our Supreme Court held that the service upon Maready
met the requirements for service of process prescribed in Rule 4.
311 N.C. at 545, 319 S.E.2d at 918. We are bound by the holding in
Harris, which is controlling in this case, and hold that the trial
court erred in relying on Stone v. Hicks.
Although Ocean Side's name does not appear on the summons, we
are convinced there was no substantial possibility of confusion in
this case about the identity of Ocean Side as a party being sued.
Accord Harris, 311 N.C. at 544, 319 S.E.2d at 917 (holding the
same). Ocean Side received the summons by certified mail,
addressed to Ocean Side, and their name appeared on the complaintcontained therein. There was no confusion about the fact that
Ocean Side was being sued. Counsel for Ocean Side advised the
trial court:
I recall checking with the Clerk and finding
out, by golly, there was something filed out
there May 31 with an A&P out there August 29
or whatever. And so I knew it was there. I
informed everyone, as I am able to do, but
still the rules weren't being followed again.
Our Supreme Court has stated that a lawsuit is “not a
children's game, but a serious effort on the part of adult human
beings to administer justice[.]” Hazelwood v. Bailey, 339 N.C.
578, 584, 453 S.E.2d 522, 525 (1995) (citations and internal
quotations omitted). “'The purpose of a service of summons is to
give notice to the party against whom a proceeding is commenced to
appear at a certain place and time and to answer a complaint
against him.'” Id. at 581, 453 S.E.2d at 523 (quoting Harris, 311
N.C. at 541, 319 S.E.2d at 916). Where the party being sued is
named in such a manner that every intelligent person understands
who is intended, then the purpose of the service of process has
been fulfilled. Id. at 584, 453 S.E.2d at 525. As such, we will
not and should not put ourselves in the “position of failing to
recognize what is apparent to everyone else.” Id. (citations and
internal quotations omitted).
Ocean Side in this case was not confused as to whether or not
they were a party to this lawsuit. Based on the facts of this
case, we hold that the requirements for service of process, as
required under Rule 4, have been met.
We reverse and remand this case to the trial court for further
proceedings consistent with this opinion. REVERSED AND REMANDED.
Judges CALABRIA and ELMORE concur.
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