{ "id": 9379244, "name": "SAUL GUY LISS, Plaintiff v. SEAMARK FOODS and WILLIE R. ETHERIDGE SEAFOOD COMPANY, INC., Defendants", "name_abbreviation": "Liss v. Seamark Foods", "decision_date": "2001-11-20", "docket_number": "No. COA00-1306", "first_page": "281", "last_page": "287", "citations": [ { "type": "official", "cite": "147 N.C. App. 281" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "351 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167313 ], "year": 1987, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0001-01" ] }, { "cite": "664 N.Y.S.2d 602", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 319318 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/ad2d/243/0548-02" ] }, { "cite": "243 A.D.2d 548", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 320188, 319318 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ad2d/243/0548-01", "/ad2d/243/0548-02" ] }, { "cite": "674 N.Y.S.2d 221", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 712538 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ad2d/251/1068-02" ] }, { "cite": "251 A.D.2d 1068", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 712538, 713699 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ad2d/251/1068-02", "/ad2d/251/1068-01" ] }, { "cite": "266 A.D.2d 269", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 203348 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ad2d/266/0269-01" ] }, { "cite": "557 N.Y.S.2d 937", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1990, "opinion_index": 0 }, { "cite": "159 A.D.2d 16", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3626478 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ad2d/159/0016-01" ] }, { "cite": "N.Y. CPLR Law \u00a7 203", "category": "laws:leg_act", "reporter": "N.Y.", "pin_cites": [ { "page": "(f)", "parenthetical": "McKinney Cumm. Supp. 2001" } ], "opinion_index": 0 }, { "cite": "495 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "holding that amending complaint to include third-party defendant after expiration of statute of limitations is adding a new party and therefore prohibited under Grossman" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655895 ], "year": 1998, "pin_cites": [ { "parenthetical": "holding that amending complaint to include third-party defendant after expiration of statute of limitations is adding a new party and therefore prohibited under Grossman" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0524-01" ] }, { "cite": "464 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "holding that amendment substituting \"Winn Dixie Raleigh, Inc.\" for \"Winn Dixie Stores, Inc.\" was adding a new party and not correcting a misnomer when both were separate corporations" } ], "opinion_index": 0 }, { "cite": "342 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796126 ], "year": 1995, "pin_cites": [ { "parenthetical": "holding that amendment substituting \"Winn Dixie Raleigh, Inc.\" for \"Winn Dixie Stores, Inc.\" was adding a new party and not correcting a misnomer when both were separate corporations" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0404-01" ] }, { "cite": "450 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "117 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523935 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/117/0028-01" ] }, { "cite": "530 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "holding that amending the complaint to include defendant in his individual capacity had the effect of adding a new party and relation back was not proper under Crossman" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080606 ], "year": 2000, "pin_cites": [ { "parenthetical": "holding that amending the complaint to include defendant in his individual capacity had the effect of adding a new party and relation back was not proper under Crossman" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0516-01" ] }, { "cite": "468 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "450", "parenthetical": "\"Because Crossman prohibits the addition of new defendants under Rule 15(c), plaintiff's claims against the City and the officers in their official capacities may not take on the filing date of his original complaint _\"" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 728", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920050 ], "year": 1996, "pin_cites": [ { "page": "732", "parenthetical": "\"Because Crossman prohibits the addition of new defendants under Rule 15(c), plaintiff's claims against the City and the officers in their official capacities may not take on the filing date of his original complaint _\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0728-01" ] }, { "cite": "539 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "673" }, { "page": "671" }, { "page": "674" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440920 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "299" }, { "page": "296" }, { "page": "300-01" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0293-01" ] }, { "cite": "506 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199536 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0330-01" ] }, { "cite": "459 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "717" }, { "page": "717" }, { "page": "717" } ], "opinion_index": 0 }, { "cite": "341 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793074 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0185-01" ] } ], "analysis": { "cardinality": 616, "char_count": 14155, "ocr_confidence": 0.761, "pagerank": { "raw": 2.0127875990176677e-07, "percentile": 0.7444455255885575 }, "sha256": "34d25f7eae34b90c4da1b68ca743cd1019cad28590291d5fce6e31051bca435a", "simhash": "1:200b6f1890043e48", "word_count": 2325 }, "last_updated": "2023-07-14T20:07:10.251034+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and HUDSON concur." ], "parties": [ "SAUL GUY LISS, Plaintiff v. SEAMARK FOODS and WILLIE R. ETHERIDGE SEAFOOD COMPANY, INC., Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nSaul Guy Liss (\u201cplaintiff\u2019) moved to amend the complaint in his negligence and breach of warranty action to correct the name of \u201cSeamark Enterprises, Inc.\u201d (\u201cdefendant\u201d) and for the amendment to relate back to the filing of the original complaint. The trial court granted plaintiffs Rule 15 motion to amend. The trial court granted defendant\u2019s Rule 12(b) motion to dismiss in accordance with Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995) and Bob Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330, 506 S.E.2d 752 (1998). Plaintiff appeals from the trial court\u2019s order of dismissal. After careful consideration of the briefs and record, we reverse.\nOn 29 May 1997, plaintiff purchased a jar of oysters from \u201cSeamark Foods\u201d store in Kitty Hawk, North Carolina. Plaintiff ate the oysters later that day and became ill. On 31 May 1997, plaintiff sought treatment at the Outer Banks Medical Center in Nags Head, North Carolina. Plaintiff was admitted to Chesapeake General Hospital in Chesapeake, Virginia on 1 June 1997. He tested positive for Aeomonas Sobria and was diagnosed with infectious diarrhea. Plaintiff was discharged on 5 June 1997.\nPlaintiff\u2019s complaint was dated 9 May 2000 and the summons was issued on 11 May 2000. The complaint and the summons listed \u201cSeamark Foods\u201d as defendant. The addresses listed on the summons for \u201cSeamark Foods\u201d were 5400 N. Croatan Highway, Kitty Hawk, North Carolina and 5000 S. Croatan Highway, Nags Head, North Carolina. On 17 May 2000, a Deputy Sheriff for Dare County served Tim Walters at the 5400 N. Croatan Highway location and Bret Ference, on 19 May 2000, at the 5000 S. Croatan Highway location. Tim Walters is the president of \u201cSeamark Enterprises, Inc.\u201d A Certificate of Assumed Name filed with the Register of Deeds for Dare County provides that \u201cSeamark Enterprises, Inc.\u201d is a North Carolina corporation that operates a business under the assumed name of \u201cSeamark Foods.\u201d\n\u201cSeamark Foods\u201d moved for an extension of time to answer on 12 June 2000 which was granted by the court. After the expiration of the statute of limitations, \u201cSeamark Enterprises, Inc.\u201d filed Rule 12(b)(2), (3), (5), and (6) motions to dismiss. Plaintiff filed a motion to amend the complaint and summons to name \u201cSeamark Enterprises, Inc.\u201d as defendant and for the amendment to relate back to the filing of the complaint pursuant to Rule 15(c). At a hearing on 31 July 2000, the court granted plaintiff\u2019s motion to amend the summons and complaint. The court then granted \u201cSeamark Enterprises, Inc.\u2019s\u201d motion to dismiss with prejudice. Plaintiff appeals.\nPlaintiff contends that the trial court erred by not allowing plaintiffs amendment of the summons and complaint to relate back to the original filing date. After careful review, we agree and reverse.\nFirst, plaintiff voluntarily dismissed \u201cWillie R. Etheridge Seafood Company, Inc.,\u201d co-defendant, as they were not involved with \u201cSeamark Foods\u201d stores when the cause of action arose. The trial court\u2019s refusal to allow relation back of the amendment to the summons and complaint determines this action since \u201cSeamark Enterprises, Inc.\u201d may plead the statute of limitations as a defense. The three year statute of limitations expired on 29 May 2000.\nThe relation back of amendments is the subject of Rule 15(c) of the North Carolina Rules of Civil Procedure and provides:\n(c) Relation back of amendments. \u2014 A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.\nG.S. \u00a7 1A-1, Rule 15(c) (1999).\nOur Supreme Court interpreted Rule 15(c) in Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 and stated:\nWhen the amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur. As a matter of course, the original claim cannot give notice of the transactions or occurrences to be proved in the amended pleading to a defendant who is not aware of his status as such when the original claim is filed. We hold that this rule does not apply to the naming of a new party-defendant to the action. It is not authority for the relation back of a claim against a new party.\nId. at 187, 459 S.E.2d at 717.\nWe have construed the Crossman decision to \u201cmean that Rule 15(c) is not authority for the relation back of claims against a new party, but may allow for the relation back of an amendment to correct a mere misnomer.\u201d Piland v. Hertford County Bd. of Comm\u2019rs, 141 N.C. App. 293, 299, 539 S.E.2d 669, 673 (2000). In Bob Killian Tire, 131 N.C. App. 330, 506 S.E.2d 752, we stated that \u201c[t]he notice requirement of Rule 15(c) cannot be met where an amendment has the effect of adding a new party to the action, as opposed to correcting a misnomer.\" Id. at 331, 506 S.E.2d at 753 (citing Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995)) (emphasis added).\nThe question becomes whether the defect in the name is \u201csufficient to bar recovery by the plaintiffs and thereby support the defendant\u2019s motion to dismiss, or whether the defect was merely technical in nature and thereby subject to remedy.\u201d Piland, 141 N.C. App. 293, 296, 539 S.E.2d 669, 671.\n\u201cSeamark Enterprises, Inc.\u201d contends that the amendment has the effect of adding a new party to the action and Crossman should bar relation back of the complaint. Plaintiff contends that the amendment is merely a misnomer so the amendment should relate back to the original filing date of the complaint.\nWe are aware \u201cthat Crossman and its progeny have redefined the standard for what constitutes a misnomer for purposes of the relation-back rule\u201d and conversely \u201care unaware of any case in our courts decided post-Crossman which has allowed an amendment effecting a name change of any sort to relate back to the original complaint.\u201d Piland, 141 N.C. App. 293, 300-01, 539 S.E.2d 669, 674. However, this is not a case of substituting a corporation for an individual. See Bob Killian Tire, 131 N.C. App. 330, 333, 506 S.E.2d 752, 754 (holding that the plaintiff\u2019s amendment sought to substitute an individual for a corporate defendant and \u201cthereby nam[ed] a new party-defendant rather than corrected] a misnomer\u201d). Nor is it a case of adding a new party by amending the complaint to add defendants in their official capacity rather than individual capacity or vice versa. See Rogerson v. Fitzpatrick, 121 N.C. App. 728, 732, 468 S.E.2d 447, 450 (1996) (\u201cBecause Crossman prohibits the addition of new defendants under Rule 15(c), plaintiff\u2019s claims against the City and the officers in their official capacities may not take on the filing date of his original complaint _\u201d); White v. Crisp, 138 N.C. App. 516, 530 S.E.2d 87 (2000) (holding that amending the complaint to include defendant in his individual capacity had the effect of adding a new party and relation back was not proper under Crossman). Nor is this a case of plaintiff wanting to substitute one corporation for a separate corporation. See Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 450 S.E.2d 24 (1994), aff'd per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995) (holding that amendment substituting \u201cWinn Dixie Raleigh, Inc.\u201d for \u201cWinn Dixie Stores, Inc.\u201d was adding a new party and not correcting a misnomer when both were separate corporations). It is also not a case of plaintiff amending his complaint adding a third-party defendant not named in the original complaint. See Wicker v. Holland, 128 N.C. App. 524, 495 S.E.2d 398 (1998) (holding that amending complaint to include third-party defendant after expiration of statute of limitations is adding a new party and therefore prohibited under Grossman).\nHere, plaintiff is not attempting to add a new party to the action. Plaintiff is correcting the name of defendant. A misnomer is a \u201c[m]istake in name; giving incorrect name to person in accusation, indictment, pleading, deed or other instrument.\u201d Black\u2019s Law Dictionary 1000 (6th ed. 1990). A misnomer would be technical in nature and subject to remedy.\nThe complaint and summons named \u201cSeamark Foods\u201d as defendant. In the complaint, plaintiff alleged that \u201cSeamark Foods\u201d was a \u201ccorporation organized and doing business in North Carolina, with its principal place of business in Nags Head, Dare County, North Carolina, and also conducts business at 5400 North Croatan Highway, Kitty Hawk, North Carolina 27949.\u201d \u201cSeamark Enterprises, Inc.\u201d engaged in business under the name and title of \u201cSeamark Foods\u201d as evidenced by the Certificate of Assumed Name filed with the Dare County Register of Deeds. This certificate was signed by Timothy Walters as \u201cPresident\u201d of \u201cSeamark Enterprises Inc.\u201d These are not two separate and distinct entities. Plaintiff is merely correcting a mistake in the name of defendant.\nIn addition, Crossman was concerned with an amendment of a name not providing the required notice. Crossman, 341 N.C. 185, 187, 459 S.E.2d 715, 717. In Crossman, the original claim would not have provided the required notice since the newly named defendant \u201c[was] not aware of his status as such when the original claim [was] filed.\u201d Id. Here, \u201cSeamark Enterprises, Inc.\u201d was not subject to this lack of notice. The president of \u201cSeamark Enterprises, Inc.\u201d was served personally with the original claim at a \u201cSeamark Foods\u201d store. Defendant\u2019s request for an extension of time to answer and the certificate of service were from Yates, McLamb & Weyher as attorney for \u201cDefendant Seamark Foods.\u201d Defendant\u2019s motion to dismiss and certificate of service were from Yates, McLamb & Weyher as attorney for \u201cDefendant Seamark Enterprises, Inc.\u201d Defendant\u2019s brief in support of its motion to dismiss and the certificate of service were from Yates, McLamb & Weyher as attorney for \u201cDefendant Seamark Enterprises, Inc., improperly designated as Seamark Foods.\u201d The same attorneys have been involved and representing \u201cSeamark Enterprises, Inc.\u201d from the beginning of the action. \u201cSeamark Enterprises, Inc.\u201d cannot argue that they did not receive notice of the original claim.\nRule 15(c) is modeled after New York Civil Practice Law and Rules Sec. 203(e) (now codified as N.Y. CPLR Law \u00a7 203(f) (McKinney Cumm. Supp. 2001)). W. Brian Howell, Shuford North Carolina Civil Practice and Proc\u00e9dure \u00a7 15-5 (5th ed. 1998). Crossman held the interpretation given to Rule 15(c) is \u201cconsistent with the interpretation given a similar statute in New York.\u201d Crossman, 341 N.C. 185, 187, 459 S.E.2d 715, 717.\nUnder the law of New York, correction of a misnomer in a pleading is allowed even after the expiration of the statute of limitations provided certain elements are met. Ober v. Rye Town Hilton, 159 A.D.2d 16, 557 N.Y.S.2d 937 (1990). See also Perrin v. McKenzie, 266 A.D.2d 269, 698 N.Y.S.2d 41 (1999); Bracken v. Niagara Frontier Transportation Authority, 251 A.D.2d 1068, 674 N.Y.S.2d 221 (1998); Pugliese v. Paneorama Italian Bakery Corp., 243 A.D.2d 548, 664 N.Y.S.2d 602 (1997). \u201cAn amendment to correct a misnomer in the description of a party defendant may be granted after the expiration of the Statute of Limitations if (1) there is evidence that the intended defendant has in fact been properly served, and (2) the intended defendant would not be prejudiced by the amendment.\u201d Pugliese, 243 A.D.2d at 549, 664 N.Y.S.2d at 603.\nHere, there is evidence that the intended defendant, \u201cSeamark Enterprises, Inc.\u201d, was properly served. An affidavit from a Dare County Deputy Sheriff establishes that a copy of the summons was served on 17 May 2000 upon Timothy Walters. The president of \u201cSeamark Enterprises, Inc.\u201d is Timothy Walters.\n\u201cSeamark Enterprises, Inc.\u201d would not be prejudiced by the amendment. After its president was served, \u201cSeamark Foods/ Enterprises, Inc.\u201d through counsel moved for an extension of time to answer and then filed a motion to dismiss. Through its president, defendant had notice of the action from the beginning and would suffer no prejudice as a result of the amendment.\nHere, \u201cwe are concerned with only one legal entity which uses two names,\u201d not an \u201cattempt to substitute one legal entity for another as defendant.\u201d Tyson v. L\u2019Eggs Products, Inc., 84 N.C. App. 1, 6, 351 S.E.2d 834, 837 (1987). Plaintiff did not add or substitute a new defendant to the action, he merely corrected a misnomer in the summons and complaint.\nAccordingly, the decision of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges HUNTER and HUDSON concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "Judith K. Guibert and Warren A. Hampton for plaintiff-appellant.", "Yates, McLamb & Weyher, L.L.P., by Jason D. Newton, for defendant-appellee." ], "corrections": "", "head_matter": "SAUL GUY LISS, Plaintiff v. SEAMARK FOODS and WILLIE R. ETHERIDGE SEAFOOD COMPANY, INC., Defendants\nNo. COA00-1306\n(Filed 20 November 2001)\nPleadings\u2014 name of defendant \u2014 amendment \u2014 relation back\nThe trial court erred in a negligence and breach of warranty claim by not allowing plaintiffs amendment of the summons and complaint to relate back to the original filing date where the original complaint and summons listed \u201cSeamark Foods\u201d as defendant and the amendment was to \u201cSeamark Enterprises, Inc.\u201d This was not a case of substituting a corporation for an individual, of adding a new party by adding defendants in their official capacity, or of adding a third-party defendant not named in the original complaint. These were not separate and distinct entities; Seamark Enterprises was doing business under the name Seamark Foods, the same attorneys have been involved from the beginning, the original summons was served on the president of \u201cSeamark Enterprises, Inc.,\u201d and defendant will suffer no prejudice from the amendment. Plaintiff did not add or substitute a new defendant to the action, but merely corrected a misnomer. Liss v. Seamark Foods.\nAppeal by plaintiff from judgment entered 14 August 2000 by Judge Robert Hobgood in Orange County Superior Court. Heard in the Court of Appeals 17 September 2001.\nJudith K. Guibert and Warren A. Hampton for plaintiff-appellant.\nYates, McLamb & Weyher, L.L.P., by Jason D. Newton, for defendant-appellee." }, "file_name": "0281-01", "first_page_order": 311, "last_page_order": 317 }