Opinion
No. COA02-1177
Filed 3 June 2003 This case not for publication.
Appeal by plaintiff from order entered 4 April 2002 by Judge Loto Greenlee Caviness, Superior Court, Rutherford County. Heard in the Court of Appeals 13 May 2003.
Vic O'Brien pros se.
Cogburn, Goosmann, Brazil Rose, P.A., by Patricia L. Arcuri, for the appellee.
Rutherford County No. 01 CVS 1224.
For the reasons given in 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 under Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995) an 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), we hold that the trial court correctly found that plaintiff's amended complaint substituting "Winn-Dixie, a Corporation" for "Winn-Dixie Charlotte, Inc." added a new party and did not correct a misnomer when the former is a nonexistent corporation in North Carolina, and the latter is an existing corporation in North Carolina. see Crossman v. Moore, 341 N.C. 185, 459 S.E.2d 715 (1995) (holding that the relation back principle in Rule 15(c) does not apply when the amendment seeks to add or substitute a party-defendant to the suit); See also, Liss v. Seamark Foods, 147 N.C. App. 281, 284-85, 555 S.E.2d 365, 367-68 (2001)
Plaintiff also argues that Winn-Dixie Charlotte, Inc., had actual notice of the plaintiff's claims because the same person was served the original and amended complaint. This Court rejected that argument in Wicker v. Holland, 128 N.C. App. 524, 495 S.E.2d 398 (1998).
Accordingly, we uphold the trial court's dismissal of plaintiff's action.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).