An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1129


Filed: 16 August 2005

OSCAR CARDENAS, by and through
his Guardian of the Estate,

v .                         Robeson County
                            No. 02 CVS 1235

    Appeal by plaintiff from order entered 20 May 2004 by Judge Ola Lewis in Robeson County Superior Court. Heard in the Court of Appeals 20 April 2005.

    Bailey & Dixon, L.L.P., by Gary S. Parsons and Warren T. Savage, for plaintiff-appellant.

    Cranfill, Sumner, & Hartzog, L.L.P., by Joseph B. Chambliss, Jr. and Jaye E. Bingham, for defendant-appellees.

    CALABRIA, Judge.

    Claudio Lopez Reyes a/k/a Oscar Cardenas by and through his guardian (“plaintiff”) appeals an order by the trial court dismissing his action with prejudice. We reverse.
    On or about 3 October 2001, plaintiff was involved in a motor vehicle accident with a tractor trailer driven by Santoroa Lee Ray (“Ray”) and owned by Murphy-Brown, L.L.C. (collectively “defendants”). As a result of the accident, plaintiff suffered serious injuries, including significant brain injury. Thereafter, plaintiff filed a complaint, which was later amended, anddefendants answered. Plaintiff took a voluntary dismissal without prejudice.
    On 25 March 2002, plaintiff filed a second complaint alleging negligence on the part of defendants based upon the motor vehicle accident. A summons was issued; however, it was recalled by plaintiff before service was accomplished. Plaintiff filed an amended complaint on 27 March 2002. A summons was issued, and defendants were served, inter alia, with a copy of the summons and the amended complaint. After requesting and obtaining an extension of time to file an answer, defendants answered the amended complaint on 10 July 2002. In their answer, defendants raised several grounds for dismissal under the North Carolina Rules of Civil Procedure.
    On 19 April 2004, the trial court heard plaintiff's motion to compel certain discovery responses by defendants and defendants' motions to dismiss based on the defenses asserted in the answer. Defendants argued dismissal was appropriate for three reasons. First, defendants argued the court lacked personal jurisdiction because defendants were served only with a copy of the amended complaint but never received the original complaint. Second, defendants argued the amended complaint failed to state a claim because one of the paragraphs mistakenly replaced Ray with plaintiff as the driver of the tractor trailer. Finally, defendants argued the complaint was fatally defective because it failed to make an affirmative averment and capacity to sue. Specifically, defendants argued plaintiff had failed to include anaverment that Kenneth Ransom was a duly qualified guardian of the estate as required by Rule 9 of the North Carolina Rules of Civil Procedure. After hearing from plaintiff, the trial court allowed “defendants' motions.” Thereafter, plaintiff requested findings of fact and conclusions of law and requested a dismissal without prejudice. The trial court denied both motions and entered an order dismissing plaintiff's action with prejudice. Plaintiff appeals.
I. Personal Jurisdiction, Process, and Service of Process
    We first consider defendants' argument concerning plaintiff's failure to serve a copy of the original complaint on defendants. Defendants, citing N.C. Gen. Stat. § 1A-1, Rule 4 (2003), assert “that [a] 'Complaint', not an Amended Complaint, must be delivered or mailed in order to have proper service.” Defendants further and correctly assert that, in the absence of proper service, a trial court does not acquire jurisdiction over a defendant. Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996).   (See footnote 1) 
    This Court has previously considered a case where a defendant “was never served with the original complaint, and was served only with the amended complaint . . . .” Jones v. Whitaker, 59 N.C. App. 223, 226, 296 S.E.2d 27, 30 (1982). In holding the trial court erroneously dismissed plaintiff's claim against the defendant, we noted that “the amendment to the complaint merely corrected the given name of the codefendant” and the “amendedcomplaint related back to the issuance of the summons and the filing of the original complaint since the amendment did not in any way alter the substance of the complaint.” Id., 59 N.C. App. at 226-27, 296 S.E.2d at 30. This Court went on to expressly note that “[p]roper service of proper process was had on the defendant” on the date he was served with the amended complaint, notwithstanding that he had not received the original complaint. Id. 59 N.C. App. at 227, 296 S.E.2d at 30 (emphasis added).
     Defendants argue that Jones is distinguishable because the defendant in Jones filed an answer responding to the allegations in the original complaint before he was served with the amended complaint. We disagree. Prior to undertaking an analysis of whether there was proper service and process, the Jones court expressly assumed, for the sake of argument, that defendant's answer “did not give the court jurisdiction.” Id., 59 N.C. App. at 226, 296 S.E.2d at 30.
    In the instant case, the complaint and the amended complaint were identical except (1) the amended complaint denominated that it was “amended” in the caption and (2) as noted at the hearing, the “amended complaint[,] in the interrogatories and request for production of documents[, had] the correct corporate name [for Murphy-Brown, L.L.C.] . . . .” No party has asserted on appeal that the variances between the two complaints altered the substance of the complaint, and rightfully so. Accordingly, we hold, in accordance with Jones, that both process and service of process in the instant case were proper; therefore, the trial court's orderdismissing plaintiff's complaint and amended complaint on the grounds of Rule 12(b)(2) (personal jurisdiction), Rule 12(b)(4) (insufficiency of process), and Rule 12(b)(5) (insufficiency of service of process) must be reversed.
II. Failure to State a Claim
    The trial court additionally dismissed plaintiff's action on defendants' motion that plaintiff's complaint failed to state a claim upon which relief may be granted. Specifically, defendants argued plaintiff failed to state a claim as a result of an error contained in paragraph five of the complaint, which reads as follows:
        That on or about [3 October 2001,] the Plaintiff . . . was the operator of and Defendant Murphy-Brown, LLC [was] the owner of a certain 2002 Ken Worth and Santoroa Lee Ray was the driver of the vehicle . . . and was leaving [the] private driveway of Smithfield Trucking and attempting to cross . . . NC 87 . . . .

At the hearing, defendants argued to the trial court that the “pleading states that their client was operating a Murphy-Brown truck; and, if that's the case, as a matter of law, they don't have a [claim].” Likewise, on appeal to this Court, defendants assert the trial court properly dismissed plaintiff's claim under Rule 12(b)(6) because plaintiff “alleges that he himself was operating the Murphy Brown truck [and if] this is taken as true, plaintiff certainly has no legal claim in this case.”
    It is uncontested that paragraph five erroneously alleges plaintiff was the operator of the tractor trailer. Be that as it may, we deem this error to be of no consequence in light of thefollowing facts. First, in its answer to the complaint, defendants denied that plaintiff was the operator of the 2002 Ken Worth truck. Defendants, however, did admit Ray was operating a vehicle bearing the same license number at the same time and place. Second, at the hearing, defendants, in arguing the error in paragraph five stated, “[Plaintiff's] pleading states that their client was operating the truck owned by Murphy-Brown. Well, we know that's wrong. We know that, in reality, Santoroa Ray was driving that truck; but, that pleading doesn't state that.” Third, the complaint does, in fact, state that Ray was driving the vehicle owned by Murphy-Brown no less than three separate times. “[C]ourts should not put themselves in the position of failing to recognize what is apparent to everyone else.” Harris v. Maready, 311 N.C. 536, 544, 319 S.E.2d 912, 918 (1984) (citations and quotation marks omitted). Having disposed of this argument, the complaint otherwise contains allegations sufficient to state a claim upon which relief can be granted under the legal theory of negligence, and the trial court improperly ordered dismissal under Rule 12(b)(6).
III. Capacity and Authority to Sue
    Finally, defendants cite Rule 9(a) of the North Carolina Rules of Civil Procedure and its requirement that “[a]ny party suing in any representative capacity . . . make an affirmative averment showing his capacity and authority to sue.” N.C. Gen. Stat. § 1A- 1, Rule 9(a) (2003). Defendants correctly note the caption of the complaint indicates plaintiff is suing by and through a guardian ofhis estate, yet the complaint contains no averment as required by Rule 9.
    In Eubanks v. Insurance Co., 44 N.C. App. 224, 261 S.E.2d 28 (1979), this Court reviewed a trial court's decision for an abuse of discretion where the court allowed a plaintiff to amend his complaint to allege his qualification as the administrator of the estate. As in this case, the plaintiff in Eubanks “failed, as required by G.S. 1A-1, Rule 9(a) to make an affirmative averment showing his capacity and authority to sue[.]” Id., 44 N.C. App. at 230, 261 S.E.2d at 32. In determining the trial court had not abused its discretion in allowing the amendment at the close of the evidence at trial, this Court noted that the “liberal provisions” of North Carolina Rules of Civil Procedure 15(a), allow a party to amend his pleadings by leave of court and require leave to be given by the court “freely . . . when justice so requires.” Id. (quoting N.C. Gen. Stat. § 1A-1, Rule 15(a)).
    In the instant case, plaintiff requested the court's leave to amend the complaint at the hearing. At the hearing, the only prejudice defendants could assert was the opportunity to answer with “a negative averment contesting capacity.” However, the record reflects that Kenneth Ransom had, in fact, been duly qualified as the guardian of the estate. In light of these facts and the lack of any meaningful prejudice to defendants, we are of the opinion that the liberal provisions of Rule 15(a) warrant an opportunity for plaintiff to amend the complaint to contain an affirmative averment in the complaint as to the capacity to sue.    Our resolution of these issues on appeal render it unnecessary to reach the remaining arguments presented.
    Reversed and remanded.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     Voluntary appearance and consent, two other methods identified in Grimsley by which a court may acquire personal jurisdiction, are not implicated in the instant case.

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