# Treadway v. Diez

> Court of Appeals of North Carolina · January 4, 2011 · 209 N.C. App. 152

URL: https://www.frixlaw.com/law-library/cases/9765061

## Case

- **Full 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
- **Court:** Court of Appeals of North Carolina
- **Decided:** January 4, 2011
- **Citations:** 209 N.C. App. 152; 703 S.E.2d 832; 2011 N.C. App. LEXIS 57
- **Precedential status:** Published
- **Opinion:** Dissent by Jackson
- **Judges:** Elmore, Jackson, Stephens
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JACKSON, Judge,
dissenting.
Because I believe the trial court erred in denying defendant Sheriff’s Department’s motions to dismiss and allowing plaintiffs’ motions to amend, I respectfully dissent.
In the cases sub judice, plaintiffs’ respective complaints and amended complaints named as a party-defendant, “Buncombe County Sheriff’s Department.” A series of summonses and alias and pluries summonses each named “Buncombe County Sheriff’s Department” as a party-defendant. The Sheriff’s Department moved to dismiss because “Buncombe County Sheriff’s Department is not a legal entity subject to suit[.]” Pursuant to North Carolina Rules of Civil Procedure, Rule 15(c), plaintiffs then moved to “amend/substitute” “Van Duncan, Sheriff of Buncombe County[,]” for “Buncombe County Sheriff’s Department.” On 2 October 2009, after the applicable statute of limitations had expired, the trial court granted plaintiffs’ motions and denied defendant Sheriff’s Department’s motions.
Contrary to the majority’s 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 — a natural person over whom the court could obtain jurisdiction — for the Sheriff’s Department, over which the court could not obtain jurisdiction. See N.C. Gen. Stat. *157 § 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. § 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. § 162-1 (2009). In contrast, no provision is made for the establishment of a “Sheriffs Department” as a distinct legal entity with the capacity to be sued. Instead, section 162-24 provides that “[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.” N.C. Gen. Stat. § 162-24 (2009).
Although the Sheriff received actual notice of plaintiffs’ 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) “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[]” and qualifying that, “fw]hen the amendment seeks to add a party-defendant or substitute a party-defendant to the suit, the required notice cannot occur”) (emphasis added). Here, plaintiffs clearly contemplated substituting the Sheriff for the Sheriff’s Department as the appropriate party-defendant by denominating the motions as motions to “amend/substitute.” 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.
Finally, I have not found, nor have counsel cited, a North Carolina case in which a Sheriff’s 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 “Sheriff of Caldwell County” as a party-defendant); Boyd v. Robeson County, 169 N.C. App. 460 , 621 S.E.2d 1 (naming “Glenn Maynor, Sheriff of Robeson County, in his official and individual capacities” 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 “Ronald Barker, Forsyth County Sheriff” as a party- *158 defendant), aff’d 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 “Ralph E. Johnson, In His Capacity As Burke County Sheriff’ as a party-defendant). 3
Accordingly, I would reverse the trial court’s orders.
Judge Jackson dissents by separate opinion prior to December 31, 2010.
. Although Mabee v. Onslow County Sheriffs Dep’t, 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’s Department in the case’s caption, Ed Brown — the Onslow County Sheriff— 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 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765061. Public record. Not legal advice.