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Pierce v. Johnson11/19/2002
PUBLISHED
Plaintiff Geral Pierce appeals from the dismissal of her personal injury action for failure to name the real party in interest. We hold that the failure to name the real party in this case was a misnomer; accordingly, we reverse the dismissal of this action.
In short, on 14 October 1997, Ms. Pierce sustained personal injuries from a motor vehicle accident allegedly caused by the negligent driving of John Daniel Johnson. On 4 May 1999, John Daniel Johnson died from medical complications unrelated to the accident; his son, Roby Daniel Johnson qualified as executor on 24 June 1999. In accord with his duties, the executor placed a Notice to Creditors in the local newspaper requesting all claims to be presented to the estate before 21 October 1999.
On 28 April 2000--about five months before the running of the statute of limitations--apparently unaware of John Daniel Johnson's death, Ms. Pierce brought an action against him to recover for her personal injuries by serving him at his last known address. On 12 May 2000, Roby Daniel Johnson, the executor for the estate of John Daniel Johnson, accepted service of the complaint by signing the name "Daniel Johnson" on the return receipt of the Certified Mail. However, rather than notify Ms. Pierce of the error in naming the decedent instead of his estate as the party-defendant, a chronology of the events that followed demonstrate that efforts were made by the executor to settle the claim.
Following the acceptance of service by the executor, on 6 June 2000, Attorney Ann C. Rowe styled as "Attorney for Defendant" moved to dismiss the action under Rules 12(b)(2), (4) and (5) for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service. The motion further moved the trial court to dismiss the action for failure to name the real party in interest. In response on 10 July 2000, Ms. Pierce filed a "Proof of Service" certifying service on defendant John Daniel Johnson at his residence, along with the return receipt to the Certified Mail signed by "Daniel Johnson". Apparently, Ms. Pierce was unaware that John Daniel Johnson died on 4 May 1999 and therefore did not seek to amend the action by substituting the estate of John Daniel Johnson as the defendant; however, as a precaution, Ms. Pierce took out alias and pluries summons and kept them current until this action was dismissed by the trial court.
Following the filing of the Proof of Service by Ms. Pierce, on 26 July 2000, defendant through Attorney Rowe, made an Offer of Judgment to Ms. Pierce in the amount of $6,200.01, and served upon Ms. Pierce "Defendant's First Set of Interrogatories and Request for Production of Documents." Ms. Pierce, through counsel, obtained an extension to respond to interrogatories and filed her response on 26 September 2002. In the meantime, Attorney Rowe on behalf of defendant, made a second Offer of Judgment in the amount of $10,001.00 on 22 August 2000, and further served a Request for Monetary Relief Sought on Ms. Pierce on 21 September 2000. The offers of judgment, interrogatories and request for production of documents, request for monetary relief sought, and certificates of service for each, were all signed by Ann C. Rowe, as "Attorney for Defendant."
Following the running of the statute of limitations on 14 October 2000, Attorney Rowe gave Notice of Hearing on 16 February 2001 to bring defendant's 6 June 2000 Motion to Dismiss to hearing. According to Ms. Pierce, at the hearing, Attorney Rowe revealed for the first time in the proceeding that her "client" died on 4 May 1999. In response, Ms. Pierce orally moved to amend and substitute the estate of John Daniel Johnson as the def
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