Franklin v. Winn Dixie Raleigh, Inc.

450 S.E.2d 24, 117 N.C. App. 28, 1994 N.C. App. LEXIS 1158
CourtCourt of Appeals of North Carolina
DecidedNovember 15, 1994
Docket9310SC1039
StatusPublished
Cited by22 cases

This text of 450 S.E.2d 24 (Franklin v. Winn Dixie Raleigh, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Winn Dixie Raleigh, Inc., 450 S.E.2d 24, 117 N.C. App. 28, 1994 N.C. App. LEXIS 1158 (N.C. Ct. App. 1994).

Opinions

ORR, Judge.

I.

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

On the significance of a summons, this Court has stated:

The summons constitutes the means of obtaining jurisdiction over the defendant. . . . The summons, not the complaint, constitutes the exercise of the power of the State to bring the defendant before the court. As such, defects in the summons receive careful scrutiny and can prove fatal to the action.

Lantham v. Cherry, 111 N.C. App. 871, 873, 433 S.E.2d 478, 480 (1993), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994) (quoting Childress v. Forsyth County Hospital Auth., 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985)).

[34]*34Where 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.

Harris v. Maready, 311 N.C. 536, 542, 319 S.E.2d. 912, 916 (1984).

Rule 4(i) permits trial courts to allow the amendment of any process “unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued.” N.C. Gen. Stat. § 1A-1, Rule 4(i) (1990); Harris, 311 N.C. at 545, 319 S.E.2d at 918. “Material prejudice” in this context “refers primarily to the interposition of the statute of limitations.” 1 G. Gray Wilson, North Carolina Civil Procedure, § 4-10, p. 44. The power of the court to allow amendment of process is discretionary and permits amendment to correct a misnomer or mistake in the name of a party. Harris, 311 N.C. at 542, 319 S.E.2d at 918. When “the misnomer or misde-scription does not leave in doubt the identity of the party intended to be sued, or even where there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit.” Id. at 919 (citing Bailey v. McPherson, 233 N.C. 231, 235, 63 S.E.2d 559, 562 (1951)). However, “if the amendment amounts to a substitution or entire change of parties, however, the amendment will not be allowed.” Id. (citing Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789 (1938)). Our Supreme Court has stated that “[substitution in the case of a misnomer is not considered substitution of new parties, but a correction in the description of the party or parties actually served.” Blue Ridge Electric Membership Corporation v. Grannis Bros., Inc., 231 N.C. 716, 720, 58 S.E.2d 748, 751 (1950). Thus, resolution of plaintiffs’ assignments of error turns on whether plaintiffs naming “Winn Dixie Stores, Inc.” as the defendant in the original summons and complaint was a misnomer.

The record shows by the affidavit of E.D. Whitley, Safety Manager, for Winn-Dixie Raleigh, Inc., that “Winn-Dixie Stores, Inc.” was not a corporate entity on record with the Secretary of State. It further shows that at no time pertinent to this action did Winn-Dixie Stores, Inc. ever own, lease or operate the store located at 651 Western Boulevard Extension. Moreover, while Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh, Inc. are both Florida corporations authorized to [35]*35do business in North Carolina, they have been and were separate and distinct corporations at the time the cause of action accrued.

Therefore, we hold that the named defendant in the original summons and complaint, “Winn Dixie Stores, Inc.”, was not a mistake or misdescription permitting the amendment of the summons. Rather, Winn Dixie Stores, Inc. was the correct name of the wrong corporate party defendant, a substantive mistake which is fatal to this action. Quite simply, plaintiffs sued the wrong corporation.

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

In Latham, this Court said that “[a] party may correct a failed or defective original service by ... application for alias and pluries summons within ninety days of original issue. . . .” Latham, 111 N.C. App. at 873, 433 S.E.2d at 480; see N.C. Gen. Stat. § 1A-1, Rule 4(d) (1990) (emphasis added). The issue in Latham was defective service, not defective process. In Anderson, again the issue before the court was whether service was defective. Anderson, 94 N.C. App. at 44, 379 S.E.2d at 670. N.C. Gen. Stat. § 1A-1, Rule 4(d), on which plaintiffs rely, “pertains to the extension of time for ‘service’ of a summons which has been properly issued against a named defendant.” Roshelli v. Sperry, 63 N.C. App. 509, 511, 305 S.E.2d 218, 219, review denied, 309 N.C. 633, 308 S.E.2d 716 (1983). Rule 4(d) of the North Carolina Rules of Civil Procedure provides that:

When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:
(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

[36]*36N.C. Gen. Stat. § 1A-1, Rule 4(d) (1990). This provision relates only to defective original service, not defective original process. Plaintiffs’ repeated issuance and service of alias and pluries summonses was not only consistently defective, but also ineffective to confer jurisdiction over the defendant Winn Dixie Raleigh, Inc.

In Roshelli, the plaintiff filed a complaint against Lawrence F. Sperry seeking recovery under the family purpose doctrine for personal injuries received on 31 March 1978 in an automobile accident allegedly caused by the defendant’s daughter, Beverly N. Sperry.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rowell v. Erie Ins.
Court of Appeals of North Carolina, 2025
Longmire v. Proof Hospitality 1, LLC
Court of Appeals of North Carolina, 2025
Jeremy Hollingshead v. DC Misfits, LLC
Supreme Court of Iowa, 2020
Estate of Rivas by and Through Soto v. Fred Smith Construction, Inc.
812 S.E.2d 867 (Court of Appeals of North Carolina, 2018)
Williams v. Advance Auto Parts, Inc.
795 S.E.2d 647 (Court of Appeals of North Carolina, 2017)
Goodwin, by and Through Hales v. Four County Electric Care Trust, Inc.
795 S.E.2d 590 (Court of Appeals of North Carolina, 2016)
Bradley v. Doe
Court of Appeals of North Carolina, 2014
Treadway v. Diez
703 S.E.2d 832 (Court of Appeals of North Carolina, 2011)
SEAGLE v. Cross
680 S.E.2d 901 (Court of Appeals of North Carolina, 2009)
Taylor v. Hospice of Henderson County, Inc.
668 S.E.2d 923 (Court of Appeals of North Carolina, 2008)
Cline v. Owens
662 S.E.2d 405 (Court of Appeals of North Carolina, 2008)
Ludemann v. BRADFORD CLINIC, INC.
652 S.E.2d 752 (Court of Appeals of North Carolina, 2007)
State Ex Rel. Cooper v. Ridgeway Brands Manufacturing, LLC
646 S.E.2d 790 (Court of Appeals of North Carolina, 2007)
Pierce v. Johnson
571 S.E.2d 661 (Court of Appeals of North Carolina, 2002)
Liss v. Seamark Foods
555 S.E.2d 365 (Court of Appeals of North Carolina, 2001)
Piland v. Hertford County Board of Commissioners
539 S.E.2d 669 (Court of Appeals of North Carolina, 2000)
Bob Killian Tire, Inc. v. Day Enterprises, Inc.
506 S.E.2d 752 (Court of Appeals of North Carolina, 1998)
Brown v. Winn-Dixie Montgomery, Inc.
669 So. 2d 92 (Mississippi Supreme Court, 1996)
Franklin v. Winn Dixie Raleigh, Inc.
450 S.E.2d 24 (Court of Appeals of North Carolina, 1994)
Jewell S. Brown v. Winn-Dixie Montgomery Inc
Mississippi Supreme Court, 1993

Cite This Page — Counsel Stack

Bluebook (online)
450 S.E.2d 24, 117 N.C. App. 28, 1994 N.C. App. LEXIS 1158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-winn-dixie-raleigh-inc-ncctapp-1994.