*1 RALEIGH, FRANKLIN v. WINN DIXIE INC. App. (1994)] N.C.

[117 husband, Bost; and her Jim and that the minor children want to be adopted by adopt Mr.Bost and Mr.Bost will in fact the minor children legally proper at a time when it is to do so. custody matters,

In child “wide discretion is vested in the trial judge. opportunity parties person lie has the to see the and to witnesses, ought upset hear the appeal and his decision not to be showing absent clear abuse Custody discretion.” In re of of Pitts, (1968) (emphasis I added). performed by find no abuse of discretion the trial judge herein.

I would affirm the decision of the trial court. FRANKLIN, FRANKLIN, Henry K. EUGENE DAVID L. Co-Executors of the Estate of FRANKLIN, RALEIGH, INC., B. and WAVAK. v. WINN DIXIE Plaintiffs Franklin, Defendant

No. 9310SC1039 (Filed 1994) 15 November 1. (NCI4th)— negligence Process and Service § 20 action— corporate sufficiency process— erroneous name — parties

motion to amend —substitution The trial court did granting not err defendant’s motion to insufficiency process dismiss for in a negligence action where the action occurred grocery at Winn-Dixie store in Raleigh, the defendant named in the original summons and Stores, Inc., Winn-Dixie the store was owned Winn-Dixie and Winn-Dixie Inc. and Winn-Dixie separate corporations. Inc. were and distinct corporate party Inc. was the correct name the wrong defend- ant; plaintiffs simply corporation. wrong sued the Plaintiffs’ attempt prohibited to amend the summons was because it parties. constituted a substitution or entire change of N.C.G.S. § Rule 4. 2d, seq.

Am Jur §§ Process 94 et Necessity sufficiency process of service of under due clause of Federal Constitution’s Fourteenth Supreme Court cases. 100 L. Ed. 2d 1015. Amendment — COURT OF APPEALS IN THE WINN DIXIE FRANKLIN negligence (NCI4th)— action— and Service

2. Process *2 process sufficiency corporate of name —service erroneous — plaintiffs’ negligence by dismissing not err The trial court did process where accident service of for insufficient action Raleigh, store was owned in Winn-Dixie Store in a occurred initially plaintiffs brought action Inc., by Raleigh, Winn-Dixie and summonses alias against Winn-Dixie defendant were ineffec- naming Raleigh, Winn-Dixie Inc. as the summons, plaintiffs and attempts amending at tive complaint Raleigh, on Winn-Dixie a summons and never served a defend- Raleigh, Inc. was named time when Winn-Dixie Inc. a void, then the If summonses themselves were ant in the case. invalid. those summonses was also service of seq. 2d, 94 et §§ Am Jur Process process under Necessity sufficiency of and Fourteenth of Federal Constitution’s due clause 2d Supreme L. Ed. 1015. Court cases. 100 Amendment — negli- (NCI4th)— Repose, Limitations, and Laches 149 3. limi- gence corporate name —statute action — erroneous relation back tations — no by action dismissing negligence err

The trial court did not plaintiffs where of the statute of limitations running on the based complaint 24 August and their filed timely claim; they they sued which could file a the last date on com- the summons and wrong served the since both defendant; plaintiffs plaint Winn-Dixie Inc. as the named as complaint naming Winn-Dixieof filed an amended original complaint was filed after the the defendant seven months no run; and served statute of limitations had and the anyone, contending the amend- that corresponding summons on already in merely name complaint corrected the ed does However, thus related back. court and Raleigh would be Winn-Dixie not relate back because defendant benefit of the statute unfairly prejudiced in that it would lose the Raleigh origi- failure to name limitations and the nally solely plaintiffs. attributable seq. 217 et 2d, §§ of Actions

Am Jur Limitation Wynn dissenting. Judge

30 IN THE OF COURT APPEALS

FRANKLIN v. WINN DIXIE Appeal by plaintiffs July from order entered Judge Gregory County Superior A. Weeks in Wake Court. Heard in the Court Appeals August 1994. appeal

This arises from negligence action filed 24 August plaintiffs against injuries defendant for sustained decedent, Henry B. (“Mr. Franklin Franklin”). Plaintiffs’ alleged on 22 August grocery while Mr. shopping, Franklin injuries permanent sustained slipped severe when he on cole lying slaw in an register grocery aisle near a cash at the Winn Dixie store located at Western Boulevard Extension in North injuries Carolina. alleged eventually Plaintiffs further these caused April Mr. Franklin’s 1on death 1991.

This case procedure raises basic issues of civil involving whether the trial plaintiffs’ court erred in dismissing original and amended complaints insufficiency for of process, insufficiency of service of process and violation of the of statute limitations. considering After of issues, reject each these we arguments all of and affirm pertinent the trial court’s dismissal. appeal The facts to this are best through understood following chronology procedural of the history: 24 August

1. On filed a (“original com- plaint”) (dated August 1992), naming “Winn Stores, Dixie Inc.” as the defendant.

2. August 1992, On 24 a caption summons was issued. The summons Stores, identified “Winn Dixie Inc.” as defendant and Stores, was directed to “WinnDixie Inc.” The name and of address specified defendant as on the summons was Company, Crawford and Road, 4208 Six Forks Raleigh, NC 27619.This was summons defective specify because it county did not in which the action was filed. No completed one the return of on service the reverse of the summons.

3. On 24 August an alias and summons was issued. Stores, This summons “Winn identified Dixie Inc.” as the defendant and was Stores, directed to “WinnDixie Inc.” The name and address of the defendant again was listed that as of Crawford and Company, Road, 4208 Six Raleigh, Forks NC 27609.

The return of the reverse of the summons shows that August on 27 it was served on “WinnDixie Inc.” leav- ing copy of a summons and “dwelling house or place usual of abode of the person defendant named above awith APPEALS OF

IN THE COURT WINN DIXIE FRANKLIN (1994)]- with “Jack residing therein” discretion then age and

suitable Adjuster”. Ferrell/General pluries a alias and September 1992,

4. second On as “Winn-Dixie the defendant This summons identified was issued. Stores, Inc.” The “Winn Dixie Raleigh, Inc.”, but is still directed to Corpo- T was C on this summons name address the defendant and Street, Raleigh, NC 27603. System, Hillsborough ration of the summons shows of service on the reverse The return on “Winn Dixie Stores of on 1 October 1992 it served T complaint C Cor- copy summons and by delivering Inc.” System “as the defend- Registered Agent, c/o Ron Strickland poration corporation”. ant Inc.” filed defendant “Winn

5. On 26 October Dismiss, pursuant 12(b)(4) Rules to N.C. Gen. Stat. Motion to insufficiency complaint be requesting that the dismissed (5), insufficiency process. of service pluries summons was 1992, a third alias and 6. 23 December On as “Winn-Dixie the defendant This summons identified issued. Raleigh, Inc.” This to “Winn-Dixie Raleigh, Inc.” and was directed was listed as time, of the defendant the name and address Street, Corporation Hillsborough System, 225 C T c/o Raleigh, NC 27603. *4 pluries summons fourth alias and

7. Also on 23 December as “Winn-Dixie summons identified the defendant was issued. This Stores, The Inc.” name to “Winn-Dixie Stores, Inc.” and was directed Stores, Inc., c/o TC was Winn-Dixie and address of the defendant Street, 27603. Corporation System, Hillsborough Raleigh, NC sum- served the third and fourth alias 8. Plaintiffs to on the copy attached each with a monses mail, receipt return certified defendants listed each were receipts sets of summonses requested. Signed indicate that both specified. On 25 Jan- to the addresses delivered on 30 December 1992 uary plaintiffs certified mail for filed an Affidavit of Service 30 December 1992. each of the summonses delivered Corpo- 1992,Barry L. C T By Ingle of 9. letter dated 31 December Corporation plaintiffs’ attorney T System that C ration notified and com- System and fourth summonses returning third Ingle Mr. stated that: plaints certified mail. that it received FRANKLIN v. WINN DIXIE are accept corporation by We unable to the name of Secretary Inc. as it is on not record with the Stores, Winn-Dixie accept of State. We would like to the service for Winn- Inc., however, Complaint was for Winn-Dixie Raleigh, Dixie Stores, Inc. provided be corporation

We must with the name of the to be registered served itas Secretary to do business with the State of North Carolina. you

Should make this determination CT is registered agent, please corporate name, address it to the full return it us and we will be glad to forward it on. By

10. affidavit Whitley, Safety dated March E. D. Man- ager Raleigh, for Winn-Dixie August 22, 1989, Inc. stated that “[o]n date, Stores, and since that Raleigh, Winn-Dixie Inc. and Winn-Dixie separate Inc. have corporations.” been and are and distinct Mr. Whitley further stated that: August

On own, Winn-Dixie Inc. did not or lease operate the Winn-Dixie store located at Western Boulevard in Raleigh, Extension Rather, oper- North Carolina. the lessee and ator the Winn-Dixie store located at 651 Western Boulevard in Raleigh, Carolina, Extension North on that date was Winn- Raleigh, Dixie owned, Inc. has never operated leased or the store at that location. April 1993,plaintiffs

11. On 20 an Complaint filed Amended nam- ing Raleigh, “Winn Dixie Inc.” as the defendant. Pursuant to Rule 15(a) of the North Carolina Procedure, Rules Civil served copy Complaint the Amended and Notice of Filing Amended Complaint on Winn Raleigh, Corp. C T System, do Hillsborough Street, Russell, NC and on Mr. Reid attorney for Defendant “Winn-Dixie Inc.” The Notice stated following: purpose this amended change is to the word “Raleigh”

“Stores”to in the name of defendant as designated when original complaint was filed. Plaintiffs make filing this *5 1A-1, 15(a), may N.C.G.S. Rule § where it is “A stated: amend pleading any his as a once matter of respon- course at time before a pleading sive . . .” responsive served. Defendant has filed no pleading, a Rule 12 responsive but motion. Such motion is not a Bollinger. pleading. See, 1, Johnson v. App. 7 (1987). 86 N.C. 33

FRANKLIN WINN DIXIE 28 Complaint, The all respects, Amended in other was identical to the complaint. May 12. 1993, On 19 Defendant Winn Inc. filed Complaint Motion pursuant to Dismiss the Amended to N.C. Gen. 1A-1, Stat. Rules 12(b)(4) (5) insufficiency process § and for insufficiency process, of service respectively, pursuant to N.C. Gen. Stat. 1-52 on ground § that the statute of limitations had run on this action. July 2 1993,

13. On Judge Gregory A. Weeks an entered Order allowing both of defendant’s motions and origi- dismissed complaints nal prejudice. and amended Judge with Weeks made no findings of in Order, plaintiffs fact his Order. From appeal. this Moore,

Marvin Schiller plaintiff- and William E. Jr. for appellants.

Patterson, Dilthey, Clay Bryson, L.L.P., by & G. Lawrence Reeves, defendant-appellee. for

ORR, Judge.

I. ^[1] Plaintiffs’ first assignment of error is that the trial court erred in granting the defendant’s insufficiency motion to dismiss for process. sufficiency any civil action filed in North governed Carolina is 1A-1, N.C. Gen. § Stat. Rule 4. Rule 4(a) states “[u]pon filing complaint, of the shall be issued . 1A-1, forthwith . . .” Gen. 4(a) Stat. Rule 4(b) § states that a summons “shall be directed to the defendant or defend ants.” N.C. Gen. 4(b) (1990). Stat.

On significance summons, of a this Court has stated: jurisdiction The summons constitutes the means of obtaining . summons, over the defendant. . . The complaint, not the consti- power tutes the exercise of the bring State to the defend- such, ant before the court. As defects the summons receive scrutiny prove careful and can fatal to the action. Cherry,

Lantham App. 871, 873, 478, 111 N.C. S.E.2d (1993), denied, cert. (1994) 335 N.C. (quoting Forsyth County Hospital Auth., App. 281, Childress v. denied, S.E.2d (1984), disc. review S.E.2d 484 (1985)). *6 OF APPEALS IN THE COURT

34 RALEIGH, INC. v. WINN DIXIE FRANKLIN (1994)] N.C. 28 [117 itself, process gener- is process the in the there is defect Where process is void- void. Where the ally or held to be either voidable may an amendment be remedied able, generally defect the jurisdiction. Where the give to process is sufficient because the however, generally be amended because void, it cannot process is jurisdiction. no it confers 912, (1984). 542, 916 Maready, 536, 319 S.E.2d.

Harris v. any amendment of permits allow the 4(i) trial courts prejudice would result clearly appears that material process “unless it process issued.” party against whom the of the rights to substantial 545, Harris, N.C. at 319 311 4(i) (1990); N.C. Gen. Stat. § primarily to in this context “refers prejudice” “Material S.E.2d at 918. Gray Wilson, G. of limitations.” 1 interposition of the statute p. power of court Procedure, 4-10, 44. The Carolina Civil North permits discretionary amend process to allow amendment party. Harris, in of a mistake the name to correct a misnomer or ment misnomer or misde- 918. When “the 542, at 319 S.E.2d at 311 N.C. scription party identity intended to of the leave in doubt does not identity, if serv as to is room doubt sued, be or even where there sued, be the misnomer intended to is made on ice of any stage of the may amendment misdescription be corrected or 235, Bailey McPherson, N.C. 63 (citing 233 at 919 suit.” Id. to a However, amounts “if the amendment (1951)). S.E.2d however, will parties, the amendment change or entire substitution Hogsed Pearlman, 213 N.C. (citing Id. not be allowed.” in has stated that Supreme Our Court (1938)). S.E. 789 “[substitution parties, of new considered substitution is not the case a misnomer actually description parties or but a correction Corporation Membership v. Grannis Ridge Blue Electric served.” Thus, resolu Bros., Inc., assignments of error turns on whether tion of original sum the defendant in the naming Inc.” as “Winn a misnomer. mons and Safety Whitley, Man- of E.D. the affidavit record shows Stores, Inc.” was Raleigh, Inc., that “Winn-Dixie Winn-Dixie ager, for Secretary It further entity of State. corporate on record with anot pertinent did Winn-Dixie to this action at no time shows that Western operate store located at 651 own, lease or Inc. ever Stores, Inc. and Moreover, while Winn-Dixie Extension. Boulevard corporations authorized to are both Florida Raleigh, Inc. FRANKLIN v. WINN DIXIE Carolina, they separate

do business in North have been and were *7 corporations distinct at the time the cause of action accrued. Therefore, we hold original that the named defendant in the sum- complaint, Stores, Inc.”, mons and “WinnDixie was not a or mistake misdescription permitting Rather, the amendment of the summons. Winn Dixie Inc. was the correct of wrong corporate name party defendant, a substantive mistake which is fatal to this action. Quite simply, plaintiffs corporation. wrong sued the they

Plaintiffs contend that were entitled to original correct their by pluries They rely defective summons alias and summons. on Cherry, App. Latham v. 871, 111 N.C. (1993) 433 S.E.2d 478 Trucking Anderson Service, Key Way Transport, Inc. v. Inc., 94 N.C. App. 36, 379 (1989). correctly S.E.2d 665 As points out, defendant misplaced. reliance on these cases is Latham,

In party may this Court said that correct failed or “[a] original application defective ... pluries alias and for sum- ninety days mons within original Latham, . . App. issue. .” 111N.C. 480; at 433 S.E.2d at 1A-1, see N.C. Gen. Stat. 4(d) (1990) § Rule (emphasis added). The issue in service, Latham was defective not process. Anderson, defective In again the issue before the court was whether Anderson, service was defective. 94 N.C. 1A-1,

S.E.2d at 670. N.C. 4(d), Gen. Stat. Rule § which rely, “pertains to the extension of time for ‘service’ a summons properly which has been against issued a named defendant.” Roshelli Sperry, App. 509, 511, denied, review 4(d) S.E.2d 716 of the North Carolina provides Rules Civil Procedure that: any

When in defendant a civil action not served within the time service, may allowed for the action be continued existence as to such defendant either of following methods of extension: plaintiff

(2) may an pluries sue out alias or summons return- process. able in the same manner as the original Such alias or pluries may any days be sued out at time within 90 after the date of issue of the preceding last summons in the chain of days or prior summonses within 90 of the last endorsement. OF APPEALS THE COURT IN DIXIE WINN FRANKLIN only provision relates (1990). This 4(d) N.C. Gen. Stat. process. Plaintiffs’ service, not defective defective was summonses of alias repeated and service issuance juris- to confer consistently defective, but also ineffective only not Winn over the defendant diction F. plaintiff complaint against Lawrence Roshelli, filed a

In per- family purpose recovery doctrine Sperry seeking under 1978 in an automobile accident injuries on 31 March received sonal allegedly Beverly Sperry. N. On daughter, the defendant’s caused filed, 27 March a summons complaint was date the Beverly Sperry. A name of the summons in the name of issued in the April 1981, after the Sperry on 7 defendant, Lawrence F. was issued expired. appeal from the defendant’s period had On limitations *8 plaintiff that because summary contended judgment, for the motion Sperry was in name of Lawrence April 7 issued the the 1981summons 1981 clerk, back to the 27 March issuance by the it related endorsed nonparty. Beverly Sperry, a in name of original summons direct- of the summons that the clerk’s endorsement This Court held period had run did not Sperry limitations to after the ed Lawrence the issuance within to relate back to the endorsed summons cause Beverly Sperry. period original summons directed to of the limitations keep by of only alive means is to the action purpose 4(d) “The of Rule of an alias or original summons or issuance on the an endorsement properly original, directed pluries in situations where the summons yet Roshelli, 511, at 305 63 N.C. was not served.” summons a is in the name of When an summons issued S.E.2d at 219. action, to the Rule and not a person other than defendant apply. Id. 4(d) not does bar, attempt original sum- to amend the

In the case at or it “a substitution entire prohibited was because constituted mons 546, at parties.” Harris, N.C. at 319 S.E.2d 918.Accord- 311 change grant defendant’s motion court’s decision to ingly, we affirm the trial insufficiency process. dismiss for to

II. ^[2] Plaintiffs next contend that the trial court erred in granting insufficiency process. service of to motion dismiss defendant’s disagree. We person appear a to give is notice to purpose of a summons to

“The complaint against him.” place to answer a a and time at certain OF IN THE COURT APPEALS 37 FRANKLIN v. WINN DIXIE N.C.

Wearring Brothers., Inc., App. 375, 376, v. Belk 38 N.C. 248 S.E.2d 1A-1, (1978); 4(b) statutory see Gen. § Stat. Rule process corporation method for on in service is set forth Rule pertinent 4(j)(6). part, In Rule 4(j)(6) states to effect service on corporation, person complaint delivered, a summons and must be in mail, officer, director, an registered managing or or certified to or corporation, by copies per- agent leaving in the office of such Gen. 1A-1, 4(j)(6) (1990) (emphasis added). § sons. N.C. Stat. preceding September As argument, demonstrated the 29 1992and the 23 December 1992 naming alias summonses attempts “Winn-Dixie Inc.” as the were defendant ineffective amending Interestingly, plaintiffs summons. sever cite Appeals support al Court of cases which the defendant’s contention plaintiffs that service was All on insufficient. of the cases which base sufficiently their contention that service of accom plished in this complete day case make it clear that is on the Taylor are delivered to the addressee. See App. 767, Brinkman, denied, review . . (1993) (“. process attempted S.E.2d 30 service of regis permitted by or mail, tered certified as N.C.G.S.

4(j)(1)(c), ‘complete day the summons and are ” Lynch delivered (quoting Lynch, address thereon’ (1981)). S.E.2d

The defendant Winn Dixie Inc. did not become April 1993, defendant in this case until 20 the date filed their *9 Complaint. Amended At no time on or after filing the Amended Complaint- plaintiffs did the in serve a summons the name Winn Raleigh, September Dixie Inc. and December summonses which Raleigh, named Winn Dixie Inc. were as defendant both issued complaint when pending original the defendant named the then plaintiff Winn In short, simply Dixie Inc. has never served complaint a summons and on Winn Dixie at a Inc. time when Winn Inc. was named defendant in this case. “ succinctly brief,

As defendant states in its is axiomatic that if [i]t void, the summonses were themselves then the service of those sum- monses was also invalid.” Accordingly, we affirm the trial court’s dis- plaintiff’s insufficiency missal of the suit on the ground of of service process. APPEALS OF THE COURT IN v. WINN DIXIE

FRANKLIN III. in this case. ^[3] Plaintiffs’ Here, final the issue assignment before the of error court is is the crucial whether the trial issue presented court on Raleigh, Inc. Winn-Dixie against lawsuit dismissing their erred in of lim run. The statute limitations had statute of grounds that the years. N.C. Gen. is three injury negligence due to personal itations for 1993). 1-52(16)(Supp. Stat. § on and original summons

Plaintiffs filed their timely claim. they file a which could last date on August origi- both the wrong since they However, sued and served as the Winn-Dixie complaint named and nal summons original after the seven months April over On 20 defendant. run, limitations had statute of complaint was filed and the as the Raleigh, Inc.” “Winn-Dixie complaint naming an amended filed anyone. corresponding summons on no Plaintiffs served defendant. merely the name corrected They the amended contend that to the date of relates back already in court and thus of a they properly they words, argue that complaint. In other a cor- issuance of the clerk’s of limitations the statute extended subsequent to the amendment rected alias accomplish service properly complaint in order to this issue argument on Raleigh, Inc. Plaintiffs’ defendant without merit. is also is a'defense occurs, of limitations the statute relation back

Unless Proce- Rules of Civil Carolina 15(c) of the North for defendants. following: states the dure to have been pleading is deemed amended asserted in an

A claim was inter- original pleading in the interposed the time the claim notice to pleading give does not posed unless the transactions or occur- occurrences, or series of transactions, pleading. amended proved pursuant to the rences, to be 15(c) N.C. Gen. Stat. Medicorp Enterprises, Drug Company, Inc. v. Carolina Ring

In that on this Court noted (1989), App. 277, 385 S.E.2d Inc., 96 N.C. per- 15(c) would whether Rule had decided occasions it three other *10 after the party defendant to add a new complaint be amended to mit cases, Court decided this expired. In all three period had limitations Motor Com- Teague v. Asheboro plaintiffs. See the against the issue American Callicutt v. (1972); 671 App. 736, pany, 14 N.C. 39 FRANKLIN v. WINN DIXIE App. N.C. 28 Company,

Honda App. 210, Motor 37 N.C. 245 S.E.2d 558 (1978); Nimocks, 350, App. Stevens v. 82 N.C. 180, denied, S.E.2d cert. 511, 318 N.C. S.E.2d complaint “Whether a will relate respect party back with to a applicable defendant added after the lim period depends itations on whether that new had defendant notice of the prejudiced by claim so as not to be untimely the amendment.” Ring, App. 283, at 385 S.E.2d at 806.

In Ring, adopted court the the federal determining test for when may defendant be period added after the limitations has run. Relation back will occur under the federal rule when

1) claim the basic arises out of the conduct origi- set forth the 2) nal pleading, the brought to be in receives such notice prejudiced that it will not be in maintaining defense, 3) its the party knows or should that, have known but for a mistake con- identity, cerning the action would have brought against it, been 4) requirements the second and third are within fulfilled the prescribed period. limitations

Id. (citing Fortune, Schiavone v. 2379, 477 U.S. 2384, 106S.Ct. 18, 91 L. Ed. 27 (1986)). 2d

If among permit some nexus will defendants trial judge to infer new that the defendant notice had claim so as prejudiced by not amendment, to be Callicut, App. at 213, 15(c) complaint 245 S.E.2d at will allow a to be party, expiration amended as to add a so new of the statute of lim- itations notwithstanding. The statute limitations should furnish bar, however, plaintiffs defendant at awhen of Rule 15(c) use any procedural requirement, would circumvent other Stevens, see at 346 S.E.2d at or when the fail- ure solely to name the defendant originally to attributable plaintiff.

Ring, at 806. S.E.2d

Applying present case, federal test to the we hold the trial judge correctly ruled that the statute limitations was bar to the instant case. Plaintiffs’ amended does not relate back because Winn unfairly preju- defendant Inc. would be by allowing diced back; amendment relate failure to solely name Winn-Dixie originally was attrib- plaintiffs. By utable to the allowing amended to relate back, defendant would lose the benefit of the statute of limitations as *11 RALEIGH, v. WINN DIXIE INC. .

FRANKLIN (1994)] N.C. [117 particularly since, plaintiffs’ evident a bar to cause action. This they not Inc. that were being after informed plaintiffs’ six to file the proper defendant, waited over months Therefore, properly complaint. defendant asserted amended plaintiffs’ to name as a bar to effort “correct the statute limitations party already in court.” amended filed on 19 The action April 1993initiated a new action. The commencement of this years August 1992 more three after the accident on 24 occurred than barred Gen. Stat. 1-52. and is agree with defendant that the record does Summarizing, we plaintiffs’ Raleigh, to name Winn-Dixie not demonstrate that failure Rather, a misnomer. it shows Inc. as the defendant resulted from unjustified as the plaintiffs’ failure to name Winn-Dixie timely party in a fashion. defendant and original

Plaintiffs their summons filed they timely Yet, file date on which could claim. August the last complaint, filed than it was not until the amended more corporate years accident, proper Franklin’s that the three after Mr. day, as Inc.” was named. To this defendant “Winn Procedure, plaintiffs required North Carolina Rules of Civil Raleigh, Inc., through the never defendant WinnDixie have served the System, service, Corporation C T proper agent designated to receive accompanied by complaint naming it as a defend- with summons circumstances, has been a ant. Under these the defendant never original this action. Plaintiffs’ and alias summonses jurisdiction no over defendant because the conferred defendant summons void and could not be amended. named Inc.”, complaint, “Winn-Dixie in the corporate defendant, a sub- wrong was the correct name of rea- foregoing which is fatal to this action. For the stantive mistake sons, dismissing we affirm the order the trial court action.

Affirmed.

Judge concurs. JOHNSON separate opinion. with

Judge WYNNdissents THE COURT OF APPEALS IN FRANKLIN WINN DIXIE

Judge dissenting. Wynn majority’s opinion respectfully from Part III of the

I dissent permit plain- Procedure should I believe our Rules of Civil because *12 complaint. tiffs to amend their plain- if imbroglio would have been avoided pleading

This entire Raleigh, “Winn simply complaint and served Dixie tiffs had filed their “Winn Inc.” Plaintiffs Inc.” as the defendant instead of Dixie plaintiffs proceed Since would then be allowed to with their suit. corporate name rather than the general identified the defendant its majority specific Raleigh store, the holds name of the owner of the believe, however, must be dismissed. I that the action purpose of our Rules of CivilProcedure is to resolve controversies on City Smith v. pleading the merits rather than on technicalities. See of Charlotte, App. 517, (1986). 844 79 N.C. 339 S.E.2d majority properly served notes that have never defendant, Winn and then concludes that the Raleigh, fact, made a to this action. In defendant thus has never been appeared defendant Winn Dixie before the trial court to argue plaintiffs’ complaint grounds motion to dismiss on the its insufficiency process, insufficiency service, and that the statute expired. By defense, arguing limitations the statute of limitations appearance in and therefore general defendant made a the action any objections County Agricultur- waived to defective service. Four Corp. Satterfield, 298, (1940); 10 S.E.2d 914 al Credit v. 218 App. 787, Williams, (1980). v. 46 N.C. 266 S.E.2d 25 Williams complaint 1992, within August Plaintiffs filed their on applicable three-year period, and named Winn Dixie limitations proper learning After that the defendant complaint Inc. as the defendant. Inc., plaintiffs was Winn Dixie filed their amended 1993.pursuant 1A-1, 15(c) Rule which April on 20 to N.C. Gen. Stat. § provides: pleading

A in an amended is deemed to have been claim asserted inter- interposed original pleading at the time the claim in the give posed, original pleading unless the does not notice transactions, occurrences, or series of transactions or occur- proved pursuant rences, pleading. to be to the amended argue Plaintiffs that under 15(c) (1990). N.C. Gen. Stat. Rule § complaint relates back to the date of their 15(c) their amended the statute of limitations. initial and is not barred IN THE OF APPEALS COURT FRANKLIN v. DIXIE WINN 15(c) 203(e) North Carolina’s is modeled after Sec. the New Nimocks, York Civil Practice Law and Rules. Stevens v. 82 N.C. 350, 354, denied, 511, cert. 318 N.C. 349 S.E.2d Gray Procedure, (1986); Wilson, 1 G. North Carolina Civil (1989). adoption 15-12 at At of its the time our Rule 15(c) counterpart liberal was more than its federal since North “[i]n Carolina even new cause of action can be to relate back said purposes.” Humphries Going, amendment 59 F.R.D. (E.D.N.C. 1973).The an will test for whether amendment relate back upon original filing depends to the date pleading whether the gave proposed Mauney the defendant sufficient notice of the claim. Morris, (1986); 340 S.E.2d 397 Burcl v. North Caroli Baptist Hosp., Inc., na plaintiff 293 S.E.2d 85 Whether a depends

can amend the to add a new defendant whether new notice of so defendant had the claim as not to be prejudiced by untimely amendment. “If nexus among some *13 permit judge defendants will the trial to infer that the new defendant prejudiced had notice of the claims so as not to be the amendment, . 15(c) . . Rule will allow a to be amended so party, expiration period as to add a of new the limitations notwith Ring Drug Co., Medicorp standing.” Enterprises, Inc. v. Carolina App. 277, 283, (citation (1989) omit Drug ted). Ring adopted the federal test set forth the United Supreme provides States Court in Schiavone Fortune which relation back will occur when:

1) the claim of the forth in origi- basic arises out conduct set pleading, 2) nal brought to be in receives such notice prejudiced defense, that it will not be in maintaining 3) its that, knows or should known have but for mistake con- identity, cerning brought against it, the action would have been requirements 4) the second and fulfilled third are within the prescribed period. limitations

Ring Drug, App. 277, (citing at 385 S.E.2d at 806 Schiavone v. Fortune, 2d (1986)). 477 U.S. 91 L. Ed. widely rigid

The Schiavone test was criticized as too restrictive a Joseph reading 15(c). Bauer, Rule Proc. P. Federal Civ. See Supreme Schiavone: An Un-Fortune-ate Illustration Court’s Interpreter Procedure, Role as Rules Federal Civil 63 Notre Brussack, Outrageous L. D. (1988); Dame Rev. 720 Robert Fortune: Amending 15(c) Again, The Case 61 Cal. L. Rev. 671 S. for OF APPEALS

IN THE COURT DIXIE FRANKLIN v. WINN Dornfried, v. Fortune: Notice Becomes Joseph Schiavone

(1988); 15(c), Federal Rule Requirement Relation Back under Threshold response criticism, Federal Rule In to this (1987). 65 N.C. L. Rev. 598 prevent result of specifically the harsh was amended in 1991to 15(c) Advisory Notes to Rule test. See Committee the Schiavone W. Miller, R. and Frank reprinted Wright, in 12 Charles A. Arthur Procedure, Appendix Elliott, (1994). C Federal Practice and provides party to be added to the action amendment that if the period provided for service of the action within the received notice defense, prejudiced maintaining in under Rule 4 so as not to be concerning for a mistake knew or should have known that but party, identity proper party, have named that the action would Mary Kay Kane, proper. Wright, Miller, and then relation back is 6A al., Federal Prac- (Supp. 1994); 3 James W.Moore et Moore’s § Therefore, required under (Supp. 1994). the notice tice § 15.01[15] of limi- longer governing no tied to the statute 15(c) Federal Rule period days. period, of 120 6A tations but rather to the federal Kane, 1994). Wright, (Supp. Miller and at 1498 § days. Carolina, period is 30 In North for service Moore, In 115N.C. Rule 4 Crossman N.C. Gen. Stat. allowed, 690,448 S.E.2d 519 App. 372, 444 review S.E.2d 15(c) has been though that even Federal Rule (1994) this Court ruled Drug Ring amended, bound the decision this Court was still interpreting test in our Rule on the now invalid federal which relied 376, 444 at 632. Crossman, 115 N.C. S.E.2d 15(c). long as the 15(c) is clear that so

North Carolina’s *14 proved to be the transactions or occurrences pleading gives notice of will back to pleading relate pleading, amended the amended the 15(c) pleading. N.C. Gen. Stat. date of the the rely federal Therefore, to on a now abandoned illogical it is (1990). the third interpret rule. The instant case is to our own clear test presents 15(c) problem. See reported year which a Rule decision this App. Hosp. Foundation, Inc., 115 N.C. Haywood County v. Medford Haywood complaint against (Plaintiff filed (1994) 444 S.E.2d 699 County Foundation, denied motion to amend Hospital trial court County Hospi- Haywood to change to name of defendant (Plaintiff at 631 filed Crossman, tal); Company, trial Dolan Moore and Dolan Moore against Van Moore II as naming Van Dolan court refused to allow amendment back). to relate defendant

LINER v. BROWN easily by modifying situation can be remedied the test in This Ring Drug in accordance with the 1991 amendment to Federal Rule If a to be added to an action received notice of the insti 15(c). provided by period within the for service Rule 4 tution of the action prejudiced defense, maintaining so as not to be and knew or identity concerning should have known that but for a mistake the proper party party, the action would have named that then the original pleading. relate back to the time of the amendment should interpretation case, to the instant I conclude that since Applying this complaint incorrectly “Winn naming served their initial System upon Corporation T Dixie Inc.” as defendant C which registered agent was the for both Winn Dixie Inc. and Winn Inc., proper defendant, then the Winn Dixie prejudiced received notice of the action so as not to be in main Trucking Key Way taining a defense. See Anderson Service v. Trans port, App. 36, upon a (1989) (Service registered 379 S.E.2d 665 upon agent company). was effective My purpose consistent with conclusion is Rules of Civil speedy by disregarding Procedure which is to insure a trial technical- proceed directly action, ities and to merits of an form and instead hoary system replaced. pleading unlike the the rules See Johnson Johnson, App. 40, 187 S.E.2d 420 Because I believe majority respectfully substance, elevates form over I dissent. LINER, DAVID as ADMINISTRATOR of the ESTATE OF AMBRA D. RICHARDSON and LINETTA VERONICA RICHARDSON RONALD and BROWN

No. 9321SC1118 (Filed 1994) 15 November wrongful (NCI4th)— 1. and 2§ Parent Child death — dece- parentis dent’s aunt —not in loco in a wrongful granting

The trial court erred death action summary parental immunity judgment for defendants based on they parentis because claimed to be in to decedent where loco decedent, Ambra, was the child of Veronica Richardson and adjudicated Richardson, divorced; who are Dennis Ambra dependent juvenile placed neglected legal be a in the and physical custody Forsyth County Department of Social *15 Services; placed paternal aunt, with Linetta Ambra her