Preliminarily, we note the denial of a motion to dismiss is
interlocutory, from which no immediate appeal generally lies.
See
Block v. County of Person, 141 N.C. App. 273, 276, 540 S.E.2d 415,
418 (2000). However, where a defendant bases the appeal on
sovereign immunity, it involves a substantial right warrantingimmediate appellate review.
Clark v. Red Bird Cab Co., 114 N.C.
App. 400, 403, 442 S.E.2d 75, 77,
disc. review denied, 336 N.C.
603, 447 S.E.2d 387 (1994). Accordingly, this appeal is properly
presented for our review.
On appeal, NCDOT argues the trial court erroneously denied its
motion to dismiss because Glover Construction did not file the
complaint and serve the summons on NCDOT within six months as
required under section 136-29 of the North Carolina General
Statutes. Specifically, NCDOT contends Glover Construction's
claims are barred on grounds of sovereign immunity. We disagree.
“Sovereign immunity ordinarily grants the state, its counties,
and its public officials, in their official capacity, an
unqualified and absolute immunity from law suits.”
Paquette v.
County of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717
(2002),
disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003).
However, “[w]aiver of sovereign immunity may not be lightly
inferred[,] and State statutes waiving this immunity, being in
derogation of the sovereign right to immunity, must be strictly
construed.”
Guthrie v. State Ports Auth., 307 N.C. 522, 537-38,
299 S.E.2d 618, 627 (1983). Our Supreme Court has held that the
Highway Commission, the predecessor agency of NCDOT, “is not
subject to suit except in the manner expressly authorized by
statute.”
William v. N.C. State Highway Comm'n, 252 N.C. 772, 773-
74, 114 S.E.2d 782, 784 (1960).
Section 136-29 of the North Carolina General Statutes is the
statutory ground for contractors to sue NCDOT for claims denied bythe State Highway Administrator.
Battle Ridge Cos. v. N.C. Dep't
of Transp., 161 N.C. App. 156, 157-58, 587 S.E.2d 426, 427 (2003).
Section 136-29(c) provides:
(c) As to any portion of a claim that is
denied by the State Highway Administrator, the
contractor may, in lieu of the procedures set
forth in subsection (b) of this section,
within six months receipt of the State Highway
Administrator's final decision,
institute a
civil action for the sum he claims to be
entitled to under the contract by filing a
verified complaint and the issuance of a
summons in the Superior Court of Wake County
or in the superior court of any county where
the work under the contract was performed.
The procedure shall be the same as in all
civil actions except that all issues shall be
tried by the judge, without a jury.
N.C. Gen. Stat. § 136-29(c) (2005) (emphasis added).
Once the State is sued, it occupies the same position as any
other litigant.
Smith v. State, 289 N.C. 303, 320, 222 S.E.2d 412,
423-24 (1976) (holding “whenever the State of North Carolina,
through its authorized officers and agencies, enters into a valid
contract, the State implicitly consents to be sued for damages on
the contract in the event it breaches the contract.”);
Barrus
Constr. Co. v. N.C. Dep't of Transp., 71 N.C. App. 700, 703, 324
S.E.2d 1, 2 (1984) (holding that the State has consented to suits
on highway contract claims). Indeed, the plain language of section
136-29 provides, “[t]he procedure shall be the same as in all civil
actions except that all issues shall be tried by the judge, without
a jury.” N.C. Gen. Stat. . 136-29(c). Thus, the North Carolina
Rules of Civil Procedure apply to actions brought under section
136-29 of the North Carolina General Statutes. Rule 3(a) of the North Carolina Rules of Civil Procedure
provides:
A civil action is commenced by filing a
complaint with the court. The clerk shall
enter the date of the filing on the original
complaint, and such entry shall be prima facie
evidence of filing . . . When the complaint
is filed, it shall be served in accordance
with the provisions of Rule 4 . . .
N.C. Gen. Stat. . 1A-1, Rule 3(a) (2005).
The record shows that Glover Construction received a letter
from the State Highway Administrator denying its claim on 5
February 2002.
Under section 136-29 of the North Carolina General
Statutes, Glover Construction had until 5 August 2002 to file a
verified complaint in superior court. Glover Construction filed
its complaint, clearly designated in its heading to be filed in
Superior Court, Perquimans County, on 23 July 2002. The court
clerk filed Glover Construction's complaint in district court based
solely on the fact that Glover Construction enclosed with the
complaint a check for $60.00, the filing fee for complaints filed
in district court, rather than the $75.00 filing fee for superior
court. As soon as Glover Construction received notice that the
action had been filed in district court, Glover Construction paid
the additional $15.00, and the clerk properly filed the complaint
in superior court. We hold that for statute of limitations
purposes under section 136-29, the relevant date is the date of
filing, and not receipt of a filing fee.
See N.C. Gen. Stat. . 1A-
1, Rule 3(a) (providing “[a] civil action is commenced by filing acomplaint with the court.”). Thus, Glover Construction timely
filed its complaint against NCDOT on 23 July 2002.
As it relates to NCDOT's argument that the complaint was
improperly “transferred” from district court to superior court, we
conclude that there was no “transfer” of this action. Glover
Construction correctly filed and designated the complaint as a
superior court action. Subsequently, the clerk's office assigned
the case a district court civil action number solely based upon the
amount of the filing fee paid. Once Glover Construction paid the
additional money for filing, the clerk's office corrected the error
and filed the action in superior court.
Even assuming
arguendo the clerk's removal of this action from
district court to superior court was improper, the trial court's
order of 2 July 2004 effectively transferred the case from district
court to superior court, stating, “The filing in the District Court
. . . [was a] clerical or scrivener error[] and therefore the
captioned action should be ordered transferred to the Superior
Court Division[.]” This transfer was a proper exercise of the
court's discretion and authority.
Thus, we conclude Glover
Construction properly filed its complaint in superior court on 23
July 2002, which was within the six-month statutory period for
filing an action under section 136-29. Accordingly, NCDOT's
assignment of error is rejected.
NCDOT next contends the trial court erroneously allowed Glover
Construction to amend its summons. NCDOT argues that the
designation “the North Carolina State Highway Administrator” on thesummons as its “registered agent” is a jurisdictional defect that
warrants the dismissal of the complaint. We disagree.
Rule 4(b) of the North Carolina Rules of Civil Procedure
provides, in pertinent part, that a summons “shall be directed to
the defendant or defendants[.]” N.C. Gen. Stat. . 1A-1, Rule 4(b)
(2005). “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.”
Harris v. Maready, 311 N.C. 536, 541, 319 S.E.2d 912, 916 (1984).
Rule 4 of the North Carolina Rules of Civil Procedure, which
governs process and the service of process, is intended to provide
notice of the commencement of an action and “'to provide a ritual
that marks the court's assertion of jurisdiction over the
lawsuit.'”
Id. at 541-42, 319 S.E.2d at 916 (quoting
Wiles v.
Welparnel Constr. Co., 295 N.C. 81, 84, 243 S.E.2d 756, 758
(1978)).
Here, although the 31 July 2002 summons lists NCDOT as the
defendant and is addressed to NCDOT's principal office and
registered agent address, the summons was issued to the “North
Carolina State Highway Administrator,” an entity that is not a
named defendant in the action.
NCDOT argues that
because the
summons was issued to the North Carolina State Highway
Administrator, and the summons was served upon an administrative
assistant of the North Carolina State Highway Administrator, and
not a registered agent for NCDOT, the summons was improper and wasnot issued in accordance with the requirements of Rule 4 of the
North Carolina Rules of Civil Procedure.
Our Supreme Court in
Hazelwood v. Bailey held:
Where there is a defect in the process itself,
the process is generally held to be either
voidable or void. Where the process is
voidable, the defect generally may be remedied
by an amendment because the process is
sufficient to give jurisdiction. Where the
process is void, however, it generally cannot
be amended because it confers no jurisdiction.
(Citation omitted).
Hazelwood v. Bailey, 339 N.C. 578, 581, 453 S.E.2d 522, 523 (citing
Harris v. Maready, 311 N.C. 536, 542, 319 S.E.2d 912, 916 (1984)).
In
Harris, the trial court granted an individual defendant's
motion to dismiss on grounds of insufficiency of process and
insufficiency of service of process because the defendant was
served with process addressed to another defendant in the action.
Relying on its decision in
Wiles v. Welparnel Constr. Co., 295 N.C.
81, 243 S.E.2d 756 (1978), our Supreme Court held that the
requirements for service of process prescribed in Rule 4 had been
met and that the court had obtained jurisdiction over the
defendant, stating:
[t]his Court held in
Wiles that any ambiguity
in the directory paragraph of the summons was
eliminated by the complaint and the caption of
the summons and that “the possibility of any
substantial misunderstanding concerning the
identity of the party being sued in this
situation is simply unrealistic.” (Citation
omitted). Similarly, we are persuaded that
there was no substantial possibility of
confusion in this case about the identity of
[the defendant] as a party being sued. [The
defendant] was personally served with a
summons, the caption of which listed his name
first among the defendants being sued. Infact, his name appeared twice in the caption
as he was named both individually and as a
part of the law firm. Any person served in
this manner would make further inquiry
personally or through counsel if he had any
doubt that he was being sued and would be
required to answer the complaint when it was
filed. Such further inquiry would have
revealed the existence of a summons directed
to him and purporting on its face to have been
served upon him and would have established his
duty to appear and answer.
Harris, 311 N.C. at 584, 319 S.E.2d at 917.
In light of the purposes of Rule 4(b) and our Supreme Court's
rationale in
Wiles and
Harris, we conclude that listing the North
Carolina State Highway Administrator as the registered agent in the
summons in this case did not render the summons void. While the
summons incorrectly listed the North Carolina State Highway
Administrator, the summons and complaint correctly noted that NCDOT
was the defendant in the action. Therefore, NCDOT had notice of
the commencement of an action against it in Superior Court,
Perquimans County, and the complaint alerted NCDOT that the action
was an exercise of Glover Construction's right to file suit under
section 136-29 of the North Carolina General Statutes.
Moreover, any entity served in this manner would make further
inquiry personally or through counsel if it had any doubt as to
whether it was the proper defendant in this lawsuit. NCDOT did, in
fact, do this as evinced by its filing a request for an extension
of time in which to file an answer to this lawsuit on 11 September
2002. Thus, there was no substantial possibility of confusion in
this case, as NCDOT was clearly on notice of the commencement of
this action and the need to respond. The incorrect designation inthe summons amounted to an irregularity or error in form which the
trial court properly corrected in its discretion by amendment under
Rule 4(i) of the North Carolina Rules of Civil Procedure.
See N.C.
Gen. Stat. . 1A-1, Rule 4(i) (providing “[a]t any time, before or
after judgment, in its discretion and upon such terms as it deems
just, the court may allow any process or proof of service thereof
to be amended, unless it clearly appears that material prejudice
would result to substantial rights of the party against whom the
process issued.”). We, therefore, reject NCDOT's assignment of
error.
NCDOT next argues the trial court erroneously denied its
motion to dismiss for Glover Construction's failure to issue a
summons within five days of the complaint as required under Rule
4(a) of the North Carolina Rules of Civil Procedure. NCDOT
contends the trial court did not have jurisdiction to enlarge the
time for issuing the summons under Rule 4(i) because Glover
Construction never issued proper summons. As we have already
determined that the summons issued on 31 July 2002 was proper,
NCDOT's argument is without merit.
Summons must be issued “forthwith, in any event within 5
days,” under the North Carolina Rules of Civil Procedure.
See N.C.
Gen. Stat. . 1A-1, Rule 4(a). If summons is not issued by the
court clerk within five days of the filing of the complaint, the
action abates.
Roshelli v. Sperry, 57 N.C. App. 305, 308, 291
S.E.2d 355, 357 (1982). Once the action abates, the action can be
revived as of the date of the issuance of a proper summons.
SeeStokes v. Wilson and Redding Law Firm, 72 N.C. App. 107, 112, 323
S.E.2d 470, 474 (1984),
review denied, 313 N.C. 612, 332 S.E.2d 83
(1985) (action abated for failure to issue timely summons revived
upon issuance of summons).
In this case, Glover Construction filed the complaint on 23
July 2002. Under Rule 4(a), the action was subject to dismissal
upon motion by NCDOT after 30 July 2002, but before the issuance of
proper summons. As we previously determined, proper summons was
issued in this case on 31 July 2002.
The effect of the issuance of
the 31 July 2002 summons was to revive and commence a new action on
the date of issue, which was prior to the 5 August 2002 deadline
for Glover Construction to file its action against NCDOT under
section 136-29 and before NCDOT filed its motion to dismiss on 10
October 2002.
See Roshelli, 57 N.C. App. at 308, 291 S.E.2d at 357
(holding “[t]he action abated upon failure to issue proper summons
within five days of filing the complaint, but the action revived
upon the issuance and service of summons on defendant.”). As we
can discern no abuse of discretion or material prejudice to NCDOT
in the trial court's order enlarging the time in which Glover
Construction issued and served the summons under Rule 4(i), and
proper summons was issued within the statutory mandate of section
136-29, we affirm the trial court's order granting Glover
Construction's motion to amend summons.
See N.C. Gen. Stat. . 1A-
1, Rule 4(i) (providing “[a]t any time, before or after judgment,
in its discretion and upon such terms as it deems just, the court
may allow any process or proof of service thereof to be amended,unless it clearly appears that material prejudice would result to
substantial rights of the party against whom the process issued.”).
NCDOT's assignment of error is, therefore, rejected.
Because we have already determined Glover Construction's
action against NCDOT commenced with the filing of its complaint on
23 July 2002, Glover Construction properly issued summons on 31
July 2002, and the trial court did not abuse its discretion in
amending the summons and enlarging the time in which Glover
Construction could issue and serve the 31 July 2002 summons, we
need not address NCDOT's remaining assignment of error relating to
Glover Construction's issuance of alias and pluries summonses under
Rule 4(d) of the North Carolina Rules of Civil Procedure.
Accordingly, we find no error in the trial court's order
denying NCDOT's motion to dismiss and granting Glover
Construction's motion to amend summons.
Affirmed.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***