{ "id": 4163597, "name": "CAROLYN DOLORIS TAYLOR, Plaintiff v. HOSPICE OF HENDERSON COUNTY, INC., d/b/a FOUR SEASONS HOSPICE & PALLIATIVE CARE; JOANIE BURNS; and JEANNETTE KUTT, Defendants", "name_abbreviation": "Taylor v. Hospice of Henderson County, Inc.", "decision_date": "2008-12-02", "docket_number": "No. COA08-530", "first_page": "179", "last_page": "185", "citations": [ { "type": "official", "cite": "194 N.C. App. 179" } ], "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": "648 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639041, 12639042, 12639043 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/648/0206-01", "/se2d/648/0206-02", "/se2d/648/0206-03" ] }, { "cite": "635 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636738 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "627" }, { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0624-01" ] }, { "cite": "631 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636049 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "119", "parenthetical": "internal citations and quotation omitted" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0114-01" ] }, { "cite": "597 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987179 ], "year": 2004, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0534-01" ] }, { "cite": "583 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955563 ], "year": 2003, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0272-01" ] }, { "cite": "440 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "331", "parenthetical": "citation omitted" }, { "page": "331" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 830", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524971 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "833", "parenthetical": "citation omitted" }, { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0830-01" ] }, { "cite": "464 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796126 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0404-01" ] }, { "cite": "450 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "29", "parenthetical": "citation and quotation omitted" }, { "page": "28" }, { "page": "28" }, { "page": "28" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523935 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "36", "parenthetical": "citation and quotation omitted" }, { "page": "34-35" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0028-01" ] }, { "cite": "319 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "918", "parenthetical": "internal citations and quotation omitted" }, { "page": "918" }, { "page": "918" }, { "page": "918" }, { "page": "918" } ], "opinion_index": 0 }, { "cite": "311 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685798 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "545-46", "parenthetical": "internal citations and quotation omitted" }, { "page": "546" }, { "page": "546" }, { "page": "546" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0536-01" ] }, { "cite": "361 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3747397, 3746860, 3747087, 3738736, 3735633, 3742938 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0425-01", "/nc/361/0425-06", "/nc/361/0425-02", "/nc/361/0425-03", "/nc/361/0425-05", "/nc/361/0425-04" ] }, { "cite": "179 N.C. App. 815", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239931 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "818" }, { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0815-01" ] }, { "cite": "360 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795905 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "524-25", "parenthetical": "internal citations and quotation omitted" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0518-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381", "parenthetical": "\"A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.\" (Citations omitted)" } ], "opinion_index": 0 }, { "cite": "231 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629801 ], "year": 1950, "pin_cites": [ { "page": "361-62", "parenthetical": "\"A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.\" (Citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0354-01" ] } ], "analysis": { "cardinality": 579, "char_count": 14357, "ocr_confidence": 0.734, "pagerank": { "raw": 9.41772158574212e-08, "percentile": 0.5163940059825882 }, "sha256": "a416dc08d356d43ea2346259b6bf8e509fe140dd1c47a4d1abd99c1417da10af", "simhash": "1:25ea1e26d2e619d4", "word_count": 2301 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and CALABRIA concur." ], "parties": [ "CAROLYN DOLORIS TAYLOR, Plaintiff v. HOSPICE OF HENDERSON COUNTY, INC., d/b/a FOUR SEASONS HOSPICE & PALLIATIVE CARE; JOANIE BURNS; and JEANNETTE KUTT, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nCarolyn Doloris Taylor (\u201cplaintiff\u2019) appeals order entered, which dismissed her claim under the North Carolina Persons With Disabilities Protection Act (\u201cNCPWDPA\u201d) against Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care. We reverse and remand.\nI. Background\nOn 12 June 2007, plaintiff filed a complaint, which named the defendants as: \u201cFour Seasons Hospice & Palliative Care, Inc.; Jamie Burns; and Jeannette Keith, Defendants.\u201d Plaintiff\u2019s complaint asserted claims of: (1) a violation of the NCPWDPA against Four Seasons Hospice & Palliative Care,' Inc.; (2) wrongful discharge in violation of public policy against Four Seasons Hospice & Palliative Care, Inc.; (3) negligent infliction of emotional distress against all defendants; and (4) gross negligence against all defendants. A summons was issued to the named defendants on 12 June 2007. Plaintiff served the complaint, but the summons was never served.\nOn 1 August 2007, plaintiff filed an amended complaint, which named the defendants as: \u201cHospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care; Joanie Burns; and Jeannette Kutt, Defendants.\u201d Plaintiff\u2019s amended complaint stated an additional claim of tortious interference with contract against all defendants. An alias and pluries summons was issued on 1 August 2007. An amended alias and pluries summons was issued on 2 August 2007. Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care and Joanie Burns were served on 3 August 2007. Jeannette Kutt was served on 8 August 2007.\nOn 10 September 2007, plaintiff \u201cmoved, pursuant to Rule 4(i) and 15(a), North Carolina Rules of Civil Procedure, for an order allowing her to file the First Amended Complaint for Damages Injunctive Relief, And Jury Demand, and to amend the summons, and/or alias and pluries summons issued in this case, by changing the names of the defendants . . . .\u201d Defendants\u2019answered plaintiffs amended complaint on 2 October 2007 and moved to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(2), (4), (5), and (6).\nPlaintiffs \u201cMotion to File a First Amended Complaint and to Amend Summonses Previously Issued and Served in this Case\u201d and defendants\u2019 Motion to Dismiss were heard on 5 February 2008. On 8 February 2008, the trial court filed its order, which: (1) granted plaintiff\u2019s Motion to File First Amended Complaint; (2) granted, in part, plaintiff\u2019s Motion to Amend the 1 August 2007 Alias and Pluries Summonses; (3) held the amended summonses constituted the original summonses; (4) denied plaintiff\u2019s motion to amend the 12 June 2007 summonses; (5) held that the statute of limitations on plaintiff\u2019s NCPWDPA claim had expired before plaintiff commenced her action on 1 August 2007; (6) granted defendants\u2019 motion to dismiss plaintiff\u2019s NCPWDPA claim; and (7) denied defendants\u2019 motion to dismiss plaintiff\u2019s remaining claims. Plaintiff appeals.\nII. Interlocutory Anneal\nAs a preliminary matter, we note that this appeal is interlocutory. The trial court\u2019s order did not dispose of the entire case. See Veazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950) (\u201cA final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.\u201d (Citations omitted)). Our Supreme Court has stated:\nA party may appeal an interlocutory order under two circumstances. First, the trial court may certify [pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b)] that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. Second, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\nDavis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (internal citations and quotation omitted). The record does not show the trial court entered a Rule 54(b) certification after it dismissed plaintiff\u2019s NCPWDPA claim. Appellate review is unavailable to plaintiff on that basis. Id.\nIn Bowling v. Margaret R. Pardee Mem\u2019l Hosp., this Court held:\n[The plaintiff]\u2019s North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances, namely, his termination by [the defendant]. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of [the plaintiff]\u2019s arguments ....\n179 N.C. App. 815, 818, 635 S.E.2d 624, 627 (2006), disc. rev. denied, 361 N.C. 425, 648 S.E.2d 206 (2007). Based on this Court\u2019s holding in Bowling, the trial court\u2019s order affects a substantial right: the risk that \u201ctwo trials and possibly inconsistent verdicts could result.\u201d 179 N.C. App. at 818, 635 S.E.2d at 627. The trial court\u2019s order is immediately appealable. Davis, 360 N.C. at 525, 631 S.E.2d at 119. We review the merits of plaintiff\u2019s appeal.\nIII. Issues\nPlaintiff argues the trial court erred when it: (1) found the amended 1 August 2007 summonses constituted \u201coriginal summonses\u201d and \u201c[p]laintiff\u2019s action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended\u201d and (2) dismissed her NCPWDPA claim based upon the expiration of the applicable statute of limitations.\nIV. Misnomer\nPlaintiff argues \u201cthe amended complaint and alias [and] pluries summonses only corrected a misnomer, and they did not seek to add, or change, the parties in the case.\u201d We agree.\nA. Standard of Review\nRule 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.\nHarris v. Maready, 311 N.C. 536, 545-46, 319 S.E.2d 912, 918 (1984) (internal citations and quotation omitted) (emphasis supplied).\nB. Analysis\nIn Franklin v. Winn Dixie Raleigh, Inc., this Court held \u201c[the] plaintiffs\u2019 attempt to amend the original summons was prohibited because it constituted a substitution or entire change of parties.\u201d 117 N.C. App. 28, 36, 450 S.E.2d 24, 29 (1994) (citation and quotation omitted), aff\u2019d per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995). This Court stated:\nThe record shows . . . that \u201cWinn-Dixie Stores, Inc.\u201d 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.\nTherefore, we hold that the named defendant in the original summons and complaint, \u201cWinn Dixie Stores, Inc.\u201d, 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.\nId. at 34-35, 450 S.E.2d at 28.\nIn Kimbrell\u2019s of Sanford v. KPS, Inc., this Court held that \u201cthe use of the name Kendale Pawn Shop to refer to the defendant in the complaint was a mere misnomer . . . .\u201d 113 N.C. App. 830, 833, 440 S.E.2d 329, 331 (1994) (citation omitted). This Court stated:\nThe record reveals that there is no separate legal entity known as Kendale Pawn Shop; there is only KPS, Inc., which does business under the name Kendale Pawn Shop. ... It is therefore immaterial that the judgment was entered in favor of KPS, Inc. d/b/a Kendale Pawn Shop while the initial caption of the case referred only to Kendale Pawn Shop.\nId.\nHere, the record reveals and the North Carolina Secretary of State\u2019s records show that there is no North Carolina chartered legal entity known as \u201cFour Seasons Hospice & Palliative Care, Inc.\u201d The chartered entity of \u201cHospice of Henderson County, Inc.\u201d does business under the name \u201cFour Seasons Hospice & Palliative Care.\u201d\nBased on this Court\u2019s reasoning in Franklin and Kimbrell\u2019s of Sanford, the amendment did not \u201camount[] to a substitution or entire change of parties,\u201d but was a \u201ccorrectfion] [of] a misnomer or mistake in the name of a party.\u201d Franklin, 117 N.C. App. at 34-35, 450 S.E.2d at 28; Kimbrell\u2019s of Sanford, 113 N.C. App. at 833, 440 S.E.2d at 331; Harris, 311 N.C. at 546, 319 S.E.2d at 918. Plaintiff did not \u201csue[] the wrong corporation^]\u201d but rather used a \u201cmisnomer or mistake in the name of\u2019 the corporate entity. Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28; Harris, 311 N.C. at 546, 319 S.E.2d at 918. The trial court erred when it failed to find that the amendment constituted a correction of the original 12 June 2007 summons and denied plaintiff\u2019s motion to amend the 12 June 2007 summons. Harris, 311 N.C. at 546, 319 S.E.2d at 918.\nV. Statute of Limitations\nPlaintiff argues the trial court erred when it found \u201c[her] action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended . . . .\u201d We agree.\nA. Standard of Review\n\u201cOrdinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law.\u201d Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003), aff\u2019d, 358 N.C. 534, 597 S.E.2d 703 (2004) (citations omitted). We review a trial court\u2019s decision to dismiss an action based on the statute of limitations de novo. Id.\nB. Analysis\nN.C. Gen. Stat. \u00a7 168A-12 (2007) provides:\nA civil action regarding employment discrimination brought [under the NCPWDPA] shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. A civil action brought [under the NCPWDPA] regarding any other complaint of discrimination shall be commenced within two years after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct.\nIt is undisputed that the alleged discriminatory conduct took place on 14 December 2006 and the applicable 180-day statute of limitations expired on 12 June 2007. Having held that the N.C. Gen. Stat. \u00a7 1A-1, Rule 4(i) amendment constituted a correction of the original 12 June 2007 summons, plaintiffs action commenced on 12 June 2007. The trial court erred when it dismissed plaintiffs NCPWDPA claim and found that \u201c[t]he statute of limitations for [p]laintiff to bring her [NCPWDPA] [c]laim . . . expired before [p]laintiff commenced her action . . ..\u201d\nVI. Conclusion\nThe trial court erred when it found that the amended 1 August 2007 summonses \u201cconstitute [d] original summonses as to Hospice of Henderson. County, Inc. d/b/a Four Seasons Hospice & Palliative Care\u201d and denied plaintiffs motion to amend the 12 June 2007 summons. The amendment corrected a \u201cmisnomer or mistake\u201d and did not \u201camount[] to a substitution or entire change of parties . . . .\u201d Harris, 311 N.C. at 546, 319 S.E.2d at 918.\nPlaintiffs action commenced on 12 June 2007, within the applicable 180-day statute of limitations for her NCPWDPA claim. The corporate defendant cannot claim prejudice because it was served with plaintiffs 12 June 2007 complaint prior to the 1 August 2007 amendment. The trial court\u2019s dismissal of plaintiff\u2019s NCPWDPA claim is reversed.\nThe trial court dismissed plaintiff\u2019s NCPWDPA claim based upon the expiration of the applicable statute of limitations after it found that the \u201coriginal summons []\u201d was issued on 1 August 2007 and the amendment did not relate back to the 12 June 2007 summons. We express no opinion on the merits, if any, of this claim, or plaintiff\u2019s remaining claims. This case is remanded to the trial court for further proceedings not inconsistent with this opinion.\nReversed and Remanded.\nJudges McCULLOUGH and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Law Offices of Glen C. Shults, by Glen C. Shults, for plaintiff-appellant.", "McGuire, Wood & Bissette, P.A., by Rendi Mann-Stadt, for defendant-appellees." ], "corrections": "", "head_matter": "CAROLYN DOLORIS TAYLOR, Plaintiff v. HOSPICE OF HENDERSON COUNTY, INC., d/b/a FOUR SEASONS HOSPICE & PALLIATIVE CARE; JOANIE BURNS; and JEANNETTE KUTT, Defendants\nNo. COA08-530\n(Filed 2 December 2008)\n1. Appeal and Error\u2014 appealability \u2014 dismissal of NCPWDA claims \u2014 remaining claims \u2014 possibility of inconsistent verdicts\nAn interlocutory order dismissing plaintiff\u2019s claim under the North Carolina Persons With Disabilities Act was immediately appealable where the trial court denied defendants\u2019 motion to dismiss plaintiff\u2019s remaining claims and there was a risk that two trials and possibly inconsistent verdicts could result.\n2. Statutes of Limitation and Repose\u2014 relation back\u2014 amended summons \u2014 name change \u2014 not a substitution of parties\nThe trial court erred by dismissing claims under the North Carolina Persons With Disabilities Act where the alleged discriminatory conduct took place on 14 December 2006; the applicable 180 day statute of limitations expired on 12 June 2007; plaintiff\u2019s original summons was issued on that date; an amended summons was issued on 1 August 2007; and the trial court held that the amended summons did not relate back. The amended summons changed \u201cFour Seasons Hospice & Palliative Care, Inc\u201d to \u201cHospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care,\u201d a change that did not amount to a substitution of parties.\nAppeal by plaintiff from order entered 8 February 2008 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 23 October 2008.\nLaw Offices of Glen C. Shults, by Glen C. Shults, for plaintiff-appellant.\nMcGuire, Wood & Bissette, P.A., by Rendi Mann-Stadt, for defendant-appellees." }, "file_name": "0179-01", "first_page_order": 211, "last_page_order": 217 }