Opinion
No. COA10-599
Filed 5 April 2011 This case not for publication
Appeal by plaintiff from order entered 1 December 2009 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 November 2010.
Ferguson, Stein, Chambers, Gresham Sumter, P.A., by James E. Ferguson, II and Lareena J. Phillips, and Grady Jessup Law Offices, by Grady Jessup, for plaintiff-appellant.
McNair Law Firm, by Denis Volkov and Andrew W. Lax, for defendant-appellee Brown Glenn Realty, Co., Inc.
Mecklenburg County No. 09 CVS 4268.
Anne Marie Long ("plaintiff") appeals the trial court's order dismissing her claims against defendant Brown Glenn Realty, Co., Inc. ("Brown Glenn Realty") for insufficient process and insufficient service of process. We affirm.
I. Background
On 22 February 2006, an intruder entered plaintiff's duplex apartment and attacked and raped her. Plaintiff sustained serious injuries from the attack. The duplex was owned by defendant Gateway Communities ("Gateway") and managed by Brown and Glenn Realty. The intruder who attacked and raped plaintiff gained access to her apartment by entering through the adjoining duplex apartment, which was vacant and left unsecured.
On 19 February 2009, plaintiff initiated an action against Gateway, B G Realty Co., Inc. ("B G Realty"), and others (collectively "defendants") in Mecklenburg County Superior Court. Plaintiff's complaint alleged that defendants failed to adequately secure the vacant apartment, which allowed the intruder to access her apartment and injure her. In her complaint, plaintiff listed defendant B G Realty as "B G Realty Co.(formally known as Brown and Glenn Realty Co.)."
On 3 April 2009, plaintiff served her complaint and a summons on John A. Ashworth, IV ("Ashworth"), an officer and the registered agent of Brown and Glenn Realty. Ashworth was also named as an individual defendant in plaintiff's complaint. The summons delivered to Ashworth identified him as the agent of "B G Realty Co., Inc. (formerly known as Brown and Glenn Realty)." Ashworth informed the deputy sheriff who delivered the summons that he was not affiliated with B G Realty. However, Ashworth signed the summons when directed to do so by the deputy sheriff.
B G Realty was originally formed in December 1970. Prior to 2002, B G Realty's legal name was "Brown Glenn Realty Co., Inc." In August 2002, B G Realty changed its legal name to "B G Realty Co., Inc." by filing the appropriate paperwork with the North Carolina Secretary of State. Shortly thereafter, a new corporation, "Brown and Glenn Realty Co., Inc.," was formed. It was this Brown and Glenn Realty which managed plaintiff's duplex.
On 29 April 2009, plaintiff filed an "Amendment to Complaint" which made minor changes to the complaint that was filed on 19 February 2009. These amendments did not add or subtract any defendants or change the identification of defendants in any way. Ashworth, in his individual capacity, filed an answer to plaintiff's amended complaint on 28 May 2009. On 29 May 2009, B G Realty filed an answer to plaintiff's amended complaint which denied that B G Realty was the managing agent of plaintiff's duplex.
After receiving B G Realty's answer, plaintiff filed motions to amend both her complaint and the summons directed to B G Realty ("the motions to amend"). In the motions to amend, plaintiff sought to substitute Brown and Glenn Realty as a defendant in place of B G Realty. In response to the motions, Ashworth filed an affidavit stating that he was the registered agent of Brown and Glenn Realty and that he had never been served with any documents that were directed to Brown and Glenn Realty. After a hearing on plaintiff's motions, the trial court granted plaintiff's motion to amend her complaint but denied her motion to amend the summons directed to B G Realty. Plaintiff then amended her complaint to substitute Brown and Glenn Realty for B G Realty.
The record on appeal does not contain a copy of these motions.
On 22 September 2009, Brown and Glenn Realty filed a motion to dismiss plaintiff's complaint against it for insufficiency of process and insufficiency of service of process. The trial court granted Brown and Glenn Realty's motion on 15 December 2009. Plaintiff appeals.
II. Interlocutory Order
As an initial matter, we note that the trial court's order dismissing plaintiff's claims against Brown and Glenn Realty is interlocutory, as it does not dispose of the entirety of the case.
An appeal from an interlocutory order is permissible only if [(1)] the trial court certified the order under Rule 54(b) of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review. The burden rests on the appellant to establish the basis for an interlocutory appeal.
Harco National Ins. Co. v. Grant Thornton LLP, ___ N.C. App. ___, ___, 698 S.E.2d 719, 722 (2010) (citation omitted). The trial court's order did not contain a Rule 54(b) certification, and therefore plaintiff's appeal is only properly before this Court if it affects a substantial right.
The "right to have the issue of liability as to all parties tried by the same jury" and the avoidance of inconsistent verdicts in separate trials have been held by our Supreme Court to affect substantial rights. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982). In the instant case, plaintiff has demonstrated that the potential for inconsistent jury verdicts exists if she is forced to conduct bifurcated trials. If we do not address this appeal, plaintiff would be faced with the possibility of a trial against Gateway in which a jury determines that Brown and Glenn Realty was solely liable for her injuries and a later trial against Brown and Glenn Realty in which a jury determines that Gateway was solely liable for her injuries. Thus, this appeal is properly before this Court. See Vera v. Five Crow Promotions, Inc., 130 N.C. App. 645, 503 S.E.2d 692 (1998) (addressing the merits of an interlocutory summary judgment order in favor of some but not all defendants in a premises liability negligence action).
III. Amendment of Summons
Plaintiff argues that the trial court erred when it denied her motion to amend the summons directed to B G Realty. We disagree.
Rule 4(i) of the Rules of Civil Procedure permits trial courts to allow in their discretion the amendment of any process or proof of service thereof unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. [Our Supreme] Court has stated that the discretionary powers of amendment permit the courts to allow amendment to correct a misnomer or mistake in the name of a party. If the amendment amounts to a substitution or entire change of parties, however, the amendment will not be allowed.
Harris v. Maready, 311 N.C. 536, 545-46, 319 S.E.2d 912, 918 (1984) (internal quotation and citations omitted). Substitution of a new party is not permitted by amendment because "[t]he broad discretionary power given the court by G.S. 1A-1 Rule 4(i) . . . does not extend so far as to permit the court by amendment of its process to acquire jurisdiction over the person of a defendant where no jurisdiction has yet been acquired." Carl Rose Sons Ready Mix Concrete v. Thorp Sales Corp., 30 N.C. App. 526, 529, 227 S.E.2d 301, 303 (1976), overruled on other grounds, Wiles v. Welparnel Constr. Co., 295 N.C. 81, 243 S.E.2d 756 (1978).
In Franklin v. Winn Dixie Raleigh, Inc., the plaintiffs filed a complaint against and issued a summons to "Winn-Dixie Stores, Inc." for an accident which occurred at a store owned by "Winn Dixie Raleigh, Inc." 117 N.C. App. 28, 30-32, 450 S.E.2d 24, 25-27 (1994), aff'd per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995). This Court held that "[the] plaintiffs' attempt to amend the original summons was prohibited because it constituted a substitution or entire change of parties." Id. at 36, 450 S.E.2d at 29 (internal quotation and citation omitted). The Franklin Court reasoned:
The record shows . . . 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 do 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, [the] plaintiffs sued the wrong corporation.
Id. at 34-35, 450 S.E.2d at 28. The determinative factor for the Franklin Court was that the plaintiffs' original summons was directed to a separate legal entity who was not listed as a defendant in the plaintiffs' complaint and thus the summons could not be amended without the amendment constituting the addition of a new party to the action. In contrast, this Court has permitted the amendment of a summons that incorrectly identified a corporate defendant when the misidentification did not refer to a separate legal entity. See Taylor v. Hospice of Henderson County, Inc., 194 N.C. App. 179, 183, 668 S.E.2d 923, 926 (2008).
In the instant case, plaintiff concedes that Brown and Glenn Realty and B G Realty were separate and distinct corporations at the time her cause of action accrued. As a result, we must conclude that plaintiff erroneously named the wrong corporation in her complaint and summons and her error "was not a mistake or misdescription permitting the amendment of the summons." Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28. Accordingly, the trial court properly denied plaintiff's motion to amend the summons directed to B G Realty. This argument is overruled.
IV. Insufficiency of Process and Service of Process
Plaintiff argues that the trial court erred by dismissing her complaint against Brown and Glenn Realty for insufficiency of process and service of process. We disagree.
A. General Appearance
Initially, we address plaintiff's argument that Brown and Glenn Realty waived their objection to service of process by making a general appearance in this matter. "[A] court having subject matter jurisdiction may exercise personal jurisdiction over a person who has made a general appearance in the case, even though he or she has not been served with process." Zellars v. McNair, 166 N.C. App. 755, 757, 603 S.E.2d 826, 828 (2004). Plaintiff contends that Brown and Glenn Realty made a general appearance when Ashworth filed an affidavit in opposition to plaintiff's motions to amend and when Ashworth's attorney, Andrew Lax ("Lax"), who would later become Brown and Glenn Realty's attorney, argued in opposition to the motions.
However, at the time the affidavit was filed and the motions to amend were argued, Brown and Glenn Realty were not named as parties to the action, while Ashworth was a named individual defendant. Lax had signed an answer to plaintiff's complaint on Ashworth's behalf, identifying himself as "Attorney for Defendant John A. Ashworth, IV." "Where counsel signs a pleading on behalf of a party, the law imposes a presumption that the attorney held the authority to act for the client he or she professed to represent." Grimsley v. Nelson, 342 N.C. 542, 546, 467 S.E.2d 92, 95 (1996). Ashworth's answer and affidavit contain nothing that could be construed as a representation that Ashworth was acting in his official capacity on behalf of Brown and Glenn Realty. Moreover, these documents did not indicate that Lax was advocating directly on Brown and Glenn Realty's behalf and Lax never professed to represent Brown and Glenn Realty during his arguments at the hearing on plaintiff's motions to amend. Consequently, Brown and Glenn Realty cannot be said to have made a general appearance that would have waived its right to pursue a motion to dismiss for insufficiency of process and service of process. This argument is overruled.
B. Motion to Dismiss
Under Rule 12(b), a claim is subject to dismissal for insufficiency of process and insufficiency of service of process. N.C. Gen. Stat. § 1A-1, Rule 12 (b)(4) and (5) (2009). N.C. Gen. Stat. § 1A-1, Rule 4 provides the procedure by which a plaintiff can overcome a motion to dismiss based on these defenses. See In re Williams, 149 N.C. App. 951, 959, 563 S.E.2d 202, 206 (2002); N.C. Gen. Stat. § 1A-1, Rule 4 (2009). The purpose of Rule 4
is 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. Unless notice is given to the defendant of proceedings against him and he is thereby given the opportunity to appear and be heard or he appears voluntarily, the court has no jurisdiction to proceed to judgment even though it may have subject matter jurisdiction.
Harris, 311 N.C. at 541-42, 319 S.E.2d at 916.
In the instant case, Brown and Glenn Realty's agent, Ashworth, was served with a summons directed to "B G Realty Co., Inc. (formerly known as Brown and Glenn Realty)." With respect to Brown and Glenn Realty, this summons failed to comply with Rule 4(b), which requires that a summons "shall be directed to the defendant. . . ." N.C. Gen. Stat. § 1A-1, Rule 4(b) (2009); see also Roshelli v. Sperry, 57 N.C. App. 305, 307, 291 S.E.2d 355, 356 (1982). As a result, service of this summons upon Ashworth did not constitute valid service upon Brown and Glenn Realty. See Franklin, 117 N.C. App. at 37, 450 S.E.2d at 30 ("[I]t is axiomatic that if the summonses themselves were void, then the service of those summonses was also invalid.").
Moreover, there is no dispute that Brown and Glenn Realty has never been served with a summons issued in its name. "It is generally held that process must be issued and served in the manner prescribed by statute, and failure to do so makes the service invalid even though a defendant had actual notice of the lawsuit." Roshelli, 57 N.C. App. at 307, 291 S.E.2d at 356. Accordingly, plaintiff's claims against Brown and Glenn Realty were properly dismissed for insufficiency of process and insufficiency of service of process. This argument is overruled.
C. Confusion
Finally, plaintiff briefly contends that her failure to correctly identify Brown and Glenn Realty as the managing agent of her duplex should be excused because Brown and Glenn Realty's filing with the North Carolina Secretary of State included what plaintiff characterizes as "misleading" information. However, plaintiff cites no legal authorities in support of this argument, and thus we deem it abandoned pursuant to N.C.R. App. P. 28(b)(6) (2009). While plaintiff's difficulty in distinguishing between Brown and Glenn Realty and B G Realty is understandable, it does not provide us with a basis to grant her relief, as she ultimately "sued the wrong corporation." Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28. This argument is overruled.
V. Conclusion
Although plaintiff appealed from an interlocutory order, the order affected a substantial right and thus her appeal is properly before this Court. The trial court properly denied plaintiff's motion to amend her summons directed to B G Realty as the amendment would have added a new party to the action. Since Brown and Glenn Realty was only served with a summons directed to B G Realty and was never served with a summons issued in its name, the trial court properly granted Brown and Glenn Realty's motion to dismiss for insufficiency of process and insufficiency of service of process.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).