{ "id": 4180973, "name": "LATRECIA TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF'S DEPARTMENT, Defendants; HULIN K. TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF'S DEPARTMENT, Defendants", "name_abbreviation": "Treadway v. Diez", "decision_date": "2011-01-04", "docket_number": "No. COA10-99, 10-100", "first_page": "152", "last_page": "158", "citations": [ { "type": "official", "cite": "209 N.C. App. 152" } ], "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": "670 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642457 ], "year": 2009, "pin_cites": [ { "page": "915", "parenthetical": "\"[The] defendant received notice of the original claim despite the error in his name. The summons listed his correct address and was delivered to him.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0913-01" ] }, { "cite": "495 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1998, "pin_cites": [ { "page": "400" }, { "page": "526" }, { "page": "399-400" }, { "page": "528" }, { "page": "401" }, { "page": "527" }, { "page": "400", "parenthetical": "\"Wicker sought to add a party, and such action is not authorized by the rule.\"" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655895 ], "year": 1998, "pin_cites": [ { "page": "526-27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0524-01" ] }, { "cite": "351 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "838", "parenthetical": "applying this rule and concluding that, \"since the plaintiffs have sued and served the appropriate party, their delay in substituting the correct name of that party is not fatal\"" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167313 ], "year": 1987, "pin_cites": [ { "page": "8", "parenthetical": "applying this rule and concluding that, \"since the plaintiffs have sued and served the appropriate party, their delay in substituting the correct name of that party is not fatal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0001-01" ] }, { "cite": "450 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "28", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523935 ], "year": 1994, "pin_cites": [ { "page": "34", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0028-01" ] }, { "cite": "195 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165403 ], "year": 2009, "pin_cites": [ { "page": "126", "parenthetical": "\"[The] defendant received notice of the original claim despite the error in his name. The summons listed his correct address and was delivered to him.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0123-01" ] }, { "cite": "58 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "231 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631985, 8632009 ], "year": 1950, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0716-01", "/nc/231/0716-02" ] }, { "cite": "459 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "717", "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "341 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793074 ], "year": 1995, "pin_cites": [ { "page": "187", "parenthetical": "emphases added" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0185-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "593 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "601", "parenthetical": "quoting Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918134 ], "year": 2004, "pin_cites": [ { "page": "486", "parenthetical": "quoting Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0477-01" ] }, { "cite": "629 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635814 ], "weight": 2, "year": 2006, "opinion_index": 1, "case_paths": [ "/se2d/629/0854-01" ] }, { "cite": "620 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634116 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "308" } ], "opinion_index": 1, "case_paths": [ "/se2d/620/0307-01" ] }, { "cite": "544 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "naming \"Ronald Barker, Forsyth County Sheriff\" as a party-defendant" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443380 ], "year": 2001, "pin_cites": [ { "parenthetical": "naming \"Ronald Barker, Forsyth County Sheriff\" as a party-defendant" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0688-01" ] }, { "cite": "615 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633419 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/615/0866-01" ] }, { "cite": "621 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634294 ], "opinion_index": 1, "case_paths": [ "/se2d/621/0001-01" ] }, { "cite": "360 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795524, 3791880, 3786634, 3787853, 3795054, 3792467, 3789494, 3787773 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/nc/360/0364-06", "/nc/360/0364-02", "/nc/360/0364-07", "/nc/360/0364-05", "/nc/360/0364-08", "/nc/360/0364-04", "/nc/360/0364-03", "/nc/360/0364-01" ] }, { "cite": "174 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351413 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc-app/174/0210-01" ] }, { "cite": "450 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "naming \"Ralph E. Johnson, In His Capacity As Burke County Sheriff' as a party-defendant" } ], "opinion_index": 1 }, { "cite": "117 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524171 ], "year": 1994, "pin_cites": [ { "parenthetical": "naming \"Ralph E. Johnson, In His Capacity As Burke County Sheriff' as a party-defendant" } ], "opinion_index": 1, "case_paths": [ "/nc-app/117/0085-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "359 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794693, 3804106, 3799854, 3797940, 3803604, 3802940, 3797532 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0629-03", "/nc/359/0629-01", "/nc/359/0629-06", "/nc/359/0629-07", "/nc/359/0629-04", "/nc/359/0629-02", "/nc/359/0629-05" ] }, { "cite": "169 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471035 ], "opinion_index": 1, "case_paths": [ "/nc-app/169/0460-01" ] }, { "cite": "692 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "naming \"Sheriff of Caldwell County\" as a party-defendant" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 162-24", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 162-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 162-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "setting forth requirements of service of process when a sheriff is a party" } ], "opinion_index": 1 }, { "cite": "459 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "717", "parenthetical": "explaining that Rule 15(c" } ], "opinion_index": 1 }, { "cite": "341 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793074 ], "year": 1995, "pin_cites": [ { "page": "187", "parenthetical": "explaining that Rule 15(c" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0185-01" ] } ], "analysis": { "cardinality": 715, "char_count": 15284, "ocr_confidence": 0.739, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29635318506986313 }, "sha256": "c37508f2bef862a7637a89478f12457d7be49c34b62fbd4a90327ac1206087aa", "simhash": "1:c1f3dcabf44fe4e2", "word_count": 2470 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge JACKSON dissents prior to 31 December 2010 by separate opinion.", "Judge Jackson dissents by separate opinion prior to December 31, 2010." ], "parties": [ "LATRECIA TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF\u2019S DEPARTMENT, Defendants HULIN K. TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF\u2019S DEPARTMENT, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nOn 3 December 2005, Latrecia Treadway and Hulin Keith Treadway (plaintiffs) were injured in a motor vehicle accident during the Smoky Mountain Toy Run, an event that gathered toys and monetary donations for the Salvation Army and that involved a parade of motorcycles. Per their complaints, plaintiffs were on a motorcycle in the parade when Susanna Krammer Diez pulled out in front of them in her car. The accident occurred at an intersection which, plaintiffs allege, two deputy sheriffs in the employ of Buncombe County Sheriff\u2019s Department (defendant Sheriff\u2019s Department) had been monitoring until just before the accident.\nPlaintiffs filed their complaints on 2 December 2008, naming as a defendant, among others, \u201cBuncombe County Sheriff\u2019s Department.\u201d Their amended complaints, filed 2 January 2009, said the same. A summons was issued in each case on 3 December 2008, and then an alias and pluries summons on 12 February 2009, after the amended complaints were filed. On 17 March 2009, plaintiffs mailed copies of the summonses, the alias and pluries summonses, the complaints, and the amended complaints to \u201cVan Duncan, Sheriff of Buncombe County[.]\u201d\nOn 13 April 2009, defendant Sheriff\u2019s Department filed an answer. On 12 May 2009 and 7 August 2009, plaintiffs caused further alias and pluries summonses to be issued; as with the previous summonses, the defendant each identified was Buncombe County Sheriff Department \u201cc/o VAN DUNCAN SHERIFF[.]\u201d On 8 September 2009, defendant Sheriff\u2019s Department filed a motion to dismiss on the basis that \u201cBuncombe County Sheriff\u2019s Department is not a legal entity subject to suit[.]\u201d On 22 September 2009, plaintiffs filed motions to amend/substitute asking to substitute \u201cVan Duncan, Sheriff of Buncombe Countyf,]\u201d for \u201cBuncombe County Sheriff\u2019s Department.\u201d A hearing on all motions was conducted on 29 September 2009; the motion was granted on 2 October 2009.\nDefendant Sheriff\u2019s Department asks that this Court reverse the trial court\u2019s denial of its motions to dismiss and grant of plaintiffs\u2019 motions to amend. The basis of its argument regarding its motion to dismiss is that defendant Sheriff\u2019s Department is \u201cnot a legal entity subject to suit\u201d- \u2014 a question that is resolved by the grant of plaintiffs\u2019 motions to amend. As such, we need consider here only whether the motion to amend was properly granted.\n\u201c \u2018A motion to amend is addressed to the discretion of the court, and its decision thereon is not subject to review except in case of manifest abuse.\u2019 \u201d Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 486, 593 S.E.2d 595, 601 (2004) (quoting Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972)). Rule 15(c) of the North Carolina Rules of Civil Procedure, which governs the relation back of amendments, states:\nA 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.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 15(c) (2009). The long-established general interpretation of this Rule, set out in Crossman v. Moore, is:\nWe believe the resolution of this case may be had by discerning the plain meaning of the language of the rule. Nowhere in the rule is there a mention of parties. It speaks of claims and allows the relation back of claims if the original claim gives notice of the transactions or occurrences to be proved pursuant to the amended pleading. When 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 naming of a new party-defendant to the action. It is not authority for the relation back of a claim against a new party.\n341 N.C. 185, 187, 459 S.E.2d 715, 717 (1995) (emphases added). As our Supreme Court noted in Electric Membership Corp. v. Grannis Brothers, \u201c[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.\u201d 231 N.C. 716, 720, 58 S.E.2d 748, 751 (1950).\nWhether actual service upon, and the corresponding notice of the claim to, the correct party or entity was made is the key point on which our decisions in this area have turned. See, e.g., Langley v. Baughman, 195 N.C. App. 123, 126, 670 S.E.2d 913, 915 (2009) (\u201c[The] defendant received notice of the original claim despite the error in his name. The summons listed his correct address and was delivered to him.\u201d).\nWhen the misnomer or misdescription 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.\nFranklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 34, 450 S.E.2d 24, 28 (1994) (quotations and citation omitted); see also Tyson v. L\u2019eggs Products, Inc., 84 N.C. App. 1, 8, 351 S.E.2d 834, 838 (1987) (applying this rule and concluding that, \u201csince the plaintiffs have sued and served the appropriate party, their delay in substituting the correct name of that party is not fatal\u201d).\nHere, the various summonses were all served on Van Duncan, who was the sheriff, and thus the appropriate defendant for the suit, and who was himself later substituted in place of defendant Sheriffs Department as a defendant. As such, he did have notice that he was the target of a lawsuit dating back to the original claim.\nDefendant alleges that this is not the key point in an argument that relies heavily on Wicker v. Holland, 128 N.C. App. 524, 526-27, 495 S.E.2d 398, 400 (1998). There, the plaintiff named a landowner and the tenant on her land as defendants when a contractor they hired to improve the land damaged her property. Id. at 526, 495 S.E.2d at 399-400. The defendants filed answers, and then the defendant landowner filed a third-party complaint against the contractor, while the defendant tenant filed a cross-claim against the contractor. Id. The contractor became a third-party defendant; the other two defendants then filed for summary judgment. Id. At that point \u2014 outside the statute of limitations \u2014 the plaintiff moved to amend her complaint to make the contractor a named defendant in the action, arguing that the amendment related back per Rule 15(c) because the contractor had notice of the claims against him due to his role as a third-party defendant. Id. The trial court denied the motion to amend, and this Court affirmed. Id. at 528, 495 S.E.2d at 401.\nThis case is distinguishable from the case at hand in two important ways. First, the plaintiff in Wicker was most certainly attempting to add a new party; even though the contractor was at that point, named as a third-party participant in the litigation, granting the plaintiff\u2019s motion would have added a defendant \u2014 that is, it would have meant that there were suddenly four defendants where there had originally been three \u2014 rather than simply renaming the same defendant. See id. at 527, 495 S.E.2d at 400 (\u201cWicker sought to add a party, and such action is not authorized by the rule.\u201d). And, second, on appeal to this Court, the plaintiff made no misnomer argument similar to the ones made in the case at hand \u2014 that is, the plaintiff at no point alleged that the correct party called by the wrong name had been served, but rather asked that an existing, properly named entity be reclassified to become a defendant.\nAs such, we hold that the trial court did not err in allowing plaintiffs\u2019 motions to amend, nor in denying defendant\u2019s motions to dismiss.\nAffirmed.\nJudge STEPHENS concurs.\nJudge JACKSON dissents prior to 31 December 2010 by separate opinion.\n. Plaintiffs initiated separate lawsuits against defendants for their injuries resulting from the accident; plaintiff Hulin Keith Treadway was the driver of the motorcycle, while plaintiff Latrecia Treadway was his passenger. Their briefs to this Court are virtually identical aside from their names, as are the briefs of defendant Buncombe County Sheriffs Department. As such, we consider both together here.\n. Ms. Diez was a party to the original action but not to this appeal.", "type": "majority", "author": "ELMORE, Judge." }, { "text": "JACKSON, Judge,\ndissenting.\nBecause I believe the trial court erred in denying defendant Sheriff\u2019s Department\u2019s motions to dismiss and allowing plaintiffs\u2019 motions to amend, I respectfully dissent.\nIn the cases sub judice, plaintiffs\u2019 respective complaints and amended complaints named as a party-defendant, \u201cBuncombe County Sheriff\u2019s Department.\u201d A series of summonses and alias and pluries summonses each named \u201cBuncombe County Sheriff\u2019s Department\u201d as a party-defendant. The Sheriff\u2019s Department moved to dismiss because \u201cBuncombe County Sheriff\u2019s Department is not a legal entity subject to suit[.]\u201d Pursuant to North Carolina Rules of Civil Procedure, Rule 15(c), plaintiffs then moved to \u201camend/substitute\u201d \u201cVan Duncan, Sheriff of Buncombe County[,]\u201d for \u201cBuncombe County Sheriff\u2019s Department.\u201d On 2 October 2009, after the applicable statute of limitations had expired, the trial court granted plaintiffs\u2019 motions and denied defendant Sheriff\u2019s Department\u2019s motions.\nContrary to the majority\u2019s opinion, I do not think the substitution at issue constitutes a simple correction of a misnomer. Rather, plaintiffs sought to substitute a new party-defendant, Van Duncan, Buncombe County Sheriff \u2014 a natural person over whom the court could obtain jurisdiction \u2014 for the Sheriff\u2019s Department, over which the court could not obtain jurisdiction. See N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j) (2009) (providing methods for service of process upon natural persons and certain legal entities). See also N.C. Gen. Stat. \u00a7 162-16 (2009) (setting forth requirements of service of process when a sheriff is a party). This is clear because, North Carolina General Statutes, section 162-1 establishes the office of the sheriff. N.C. Gen. Stat. \u00a7 162-1 (2009). In contrast, no provision is made for the establishment of a \u201cSheriffs Department\u201d as a distinct legal entity with the capacity to be sued. Instead, section 162-24 provides that \u201c[t]he sheriff may not delegate to another person the final responsibility for discharging his official duties, but he may appoint a deputy or employ others to assist him in performing his official duties.\u201d N.C. Gen. Stat. \u00a7 162-24 (2009).\nAlthough the Sheriff received actual notice of plaintiffs\u2019 lawsuits in the cases sub judice, our Supreme Court has held that such notice is immaterial with respect to the operation of amendments to pleadings pursuant to Rule 15(c). See Crossman v. Moore, 341 N.C. 185, 187, 459 S.E.2d 715, 717 (1995) (explaining that Rule 15(c) \u201cspeaks of claims and allows the relation back of claims if the original claim gives notice of the transactions or occurrences to be proved pursuant to the amended pleading[]\u201d and qualifying that, \u201cfw]hen the amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur\u201d) (emphasis added). Here, plaintiffs clearly contemplated substituting the Sheriff for the Sheriff\u2019s Department as the appropriate party-defendant by denominating the motions as motions to \u201camend/substitute.\u201d Rule 15(c) provides for the amendment of claims, and new parties cannot be added or substituted under the guise of an amended claim. See id. Furthermore, I am concerned that the precedent hereby established may erode, through the power of the judiciary, the legislatively effected Rule 4 of the North Carolina Rules of Civil Procedure.\nFinally, I have not found, nor have counsel cited, a North Carolina case in which a Sheriff\u2019s Department rather than the Sheriff was sued. To the contrary, each case supports the proposition that the Sheriff is the proper party to be sued. See, e.g., Pay Tel Communications, Inc. v. Caldwell County, _N.C. App. _, 692 S.E.2d 885 (2011) (naming \u201cSheriff of Caldwell County\u201d as a party-defendant); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (naming \u201cGlenn Maynor, Sheriff of Robeson County, in his official and individual capacities\u201d as a party-defendant), disc. rev. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); Summey v. Barker, 142 N.C. App. 688, 544 S.E.2d 262 (2001) (naming \u201cRonald Barker, Forsyth County Sheriff\u201d as a party-defendant), aff\u2019d as modified; 357 N.C. 492, 586 S.E.2d 247 (2003); Clark v. Burke County, 117 N.C. App. 85, 450 S.E.2d 747 (1994) (naming \u201cRalph E. Johnson, In His Capacity As Burke County Sheriff\u2019 as a party-defendant).\nAccordingly, I would reverse the trial court\u2019s orders.\nJudge Jackson dissents by separate opinion prior to December 31, 2010.\n. Although Mabee v. Onslow County Sheriffs Dep\u2019t, 174 N.C. App. 210, 620 S.E.2d 307 (2005), disc. rev. denied, 360 N.C. 364, 629 S.E.2d 854 (2006), names a Sheriff\u2019s Department in the case\u2019s caption, Ed Brown \u2014 the Onslow County Sheriff\u2014 also was named as a party-defendant. Id. However, the issue in the case sub judice was not addressed in Mabee, which concerned the failure of the plaintiff to serve the Sheriff properly pursuant to North Carolina General Statutes, section 162-16.M at 211, 620 S.E.2d at 308.", "type": "dissent", "author": "JACKSON, Judge," } ], "attorneys": [ "Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff .", "Doughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for defendant." ], "corrections": "", "head_matter": "LATRECIA TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF\u2019S DEPARTMENT, Defendants HULIN K. TREADWAY, Plaintiff v. SUSANNA KRAMMER DIEZ, GENE LUMMUS, GENE LUMMUS HARLEY DAVIDSON, INC., MIKE CALLOWAY, individually and officially, JOHN DOE, individually and officially, COUNTY OF BUNCOMBE, BUNCOMBE COUNTY SHERIFF\u2019S DEPARTMENT, Defendants\nNo. COA10-99, 10-100\n(Filed 4 January 2011)\nParties\u2014 motion to amend \u2014 substitution of a misnomer \u2014 correction to name of party served\nThe trial court did not abuse its discretion by allowing plaintiffs\u2019 motion to amend to substitute \u201cVan Duncan, Sheriff of Buncombe County\u201d for \u201cBuncombe County Sheriff\u2019s Department,\u201d or by denying defendant\u2019s motions to dismiss even though plaintiffs contended that defendant Sheriff\u2019s Department was not a legal entity subject to suit. Substitution in the case of a misnomer was not considered substitution of new parties, but a correction in the description of the party actually served. The various summonses were all served on the appropriate party, and defendant sheriff had notice that he was the target of a lawsuit dating back to the original claim.\nJudge JACKSON dissenting in opinion prior to 31 December 2010.\nAppeal by defendant Buncombe County Sheriff\u2019s Department from orders entered 8 October 2009 by Judge Bradley B. Letts in Buncombe County Superior Court. Heard in the Court of Appeals 16 September 2010.\nHyler & Lopez, P.A., by Robert J. Lopez, for plaintiff .\nDoughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for defendant." }, "file_name": "0152-01", "first_page_order": 162, "last_page_order": 168 }