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Piland v. Hertford County Board of Commissioners12/29/2000
ing that the failure to name the proper defendant was not the result of a misnomer and therefore declining to allow the amendment to relate back to the original complaint. Id. at 39-40, 450 S.E.2d at 31. While our decision in Franklin was filed prior to our Supreme Court's Crossman decision and was based upon a distinctly different legal analysis, our Supreme Court later affirmed this Court's Franklin decision on the basis of the holding in Crossman. See Franklin v. Winn Dixie Raleigh, Inc., 342 N.C. 404, 464 S.E.2d 46 (1995).
We conclude that the plaintiffs' attempt to amend the summons and complaint in the instant case by changing the name of the party- defendant to Hertford County in place of the Board of Commissioners effectively seeks to add a new party-defendant rather than merely correct a misnomer, and the relation-back rule therefore cannot apply. As a result, the plaintiffs' suit against the county was time-barred under N.C. Gen. Stat. ยง 1-54.1, and the trial court should have granted the defendant's motion to dismiss. Since we conclude that the defendant was entitled to have this action dismissed under N.C.R. Civ. P. 12(b), we need not consider the correctness of the trial court's grant of summary judgment in favor of the defendant. Nonetheless, we note that the trial court's grant of summary judgment has the same practical effect of having granted the defendant's motion to dismiss. We therefore treat the defendant's motion for summary judgment as though it were a converted motion to dismiss. See, e.g., North Carolina Steel, Inc. v. National Council on Compensation Ins., 123 N.C. App. 163, 472 S.E.2d 578 (1996), aff'd in part and rev'd in part, 347 N.C. 627, 496 S.E.2d 369 (1998). The trial court's 10 June 1999 order granting summary judgment to the defendant is therefore,
Affirmed.
Judges McGEE and TIMMONS-GOODSON concur.
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