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Dixon v. Hill11/1/2005
On 1 April 1999, plaintiffs Freddie Lee Dixon, Sr. and Mabel Dixon filed suit against John Barber and defendant Palmetto Born Again Church of Christ (Apostolic), Inc. ("the Church"). On 15 September 2003, the Robeson County Superior Court entered two orders: (1) an order substituting as defendant Thomas L. Hill, administrator of the estate of John Barber, for the deceased defendant Barber and modifying the name of the Church to indicate that it was also known as Palmetto Deliverance Church; and (2) anorder entering summary judgment in favor of plaintiffs. Defendants Hill and the Church contend on appeal that they did not receive proper notice of the motion to substitute and the motion for summary judgment, that the motion to substitute was improperly allowed, and that genuine issues of material fact exist precluding summary judgment.
We hold that defendants failed to properly appeal from the order of substitution and, accordingly, dismiss that portion of defendants' appeal. Because Hill was substituted as a party on the same day as the court entered summary judgment, we hold that Hill was not provided with notice of the motion for summary judgment as mandated by N.C.R. Civ. P. 56. We, therefore, reverse the grant of summary judgment as to Hill. With respect to the Church, however, we hold that it had proper notice of the motion for summary judgment and that none of the arguments advanced by the Church on appeal warrant reversal of the summary judgment order as to the Church.
Facts
On 20 June 1993, plaintiffs' son, Freddie Lee Dixon, Jr., died in an accident when a tractor-trailer collided with the van in which he was riding. Plaintiffs filed a wrongful death action against the company that owned the truck and eventually settled their claim for $111,192.99.
John Barber was bishop of the defendant Church. During the settlement negotiations in the wrongful death action, Barber acted as a spokesperson for plaintiffs and, according to plaintiffs, toldthem not to talk to their attorneys. Defendants, in their answer, admitted that on 14 June 1994, the same day that plaintiffs received the settlement, plaintiffs gave the $111,192.99 settlement check to Barber. Barber in turn gave them a receipt reciting that the $111,192.99 was "for down payment on stock and on house $35,000.00." Plaintiff Mabel Dixon stated in her affidavit that Barber promised plaintiffs that he "would purchase $75,000.00 worth of orange juice stock which would yield a 10% return per year" and that "he would buy a house for [plaintiffs] with $35,000.00 down payment and $600.00/month for eight (8) years." Defendants' answer "admitted that the Defendant, Bishop John Barber, agreed to arrange for the Plaintiffs to purchase the house located at 3524 Pine Log Road, Lumberton, North Carolina for the sum of $89,000.00 with a down payment of $35,000.00," while defendants' responses to plaintiffs' First Request for Admissions "admitted that John Barber told Plaintiffs that their $75,000.00 would earn 10% interest per year."
Ms. Dixon states in her affidavit that Barber told plaintiffs that he had bought the house, but put it in the name of the Church. According to defendants' answer, the house was "to be held in the name of the church since the Plaintiffs were unable to qualify for financing . . . ." Ms. Dixon explained that plaintiffs moved into the house and began paying the $600.00 per month directly to Barber. Barber never gave plaintiffs a real estate contract forthe home and defendants have "admitted that legal title is not owned by Plaintiffs."
Ms. Dixon's affidavit states that after a year, plaintiffs asked Barber about the interest being earned on the orange juice stock
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