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Dixon v. Hill11/1/2005
his action against Hill in his role as administrator pursuant to N.C.G.S. § 28A-18-1."); Shaw, 151 N.C. App. at 87, 564 S.E.2d at 596 (when the plaintiff filed a timely action against the defendant, who then died, but did not proceed against the estate prior to the running of the statute of limitations, the claim was not necessarily barred because the record did not indicate that any administrator had been appointed).
Thus, the 14 February 2000 order could not operate to substitute Barber's personal representative. That substitution did not occur until 15 September 2003. Because the estate's administrator did not become a party until 15 September 2003, he did not receive proper notice of the summary judgment motion and that order must be reversed as to defendant Hill and remanded for further proceedings.
Appeal of the Summary Judgment Order by the Church
The Church first argues that it was not properly served with the motion for summary judgment. Plaintiffs respond that " he issue of proper notice was never raised at the trial court level and no objection to the manner of service was ever raised until this appeal."
N.C.R. App. P. 10(b)(1) states: "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." The record contains nothing indicating that the Church objected below on the grounds of improper service. As the appellant, it was the Church's responsibility to ensure that the record contains those materials necessary to determine its appeal. Hill v. Hill, 13 N.C. App. 641, 642, 186 S.E.2d 665, 666 (1972) ("It is the duty of an appellant to see that the record is properly made up and transmitted.") Because the Church has failed to demonstrate that it preserved this objection below, we overrule this assignment of error. The Church argues alternatively that it, like the administrator of Barber's estate, was deprived of proper notice of the summary judgment motion because the trial court granted the motion for substitution on the same day as the hearing on the summary judgment motion. The Church, however, was already a party to this action. With respect to the Church, the substitution order only added an additional name by which the Church was known. Neither the record on appeal nor the Church's appellate brief suggests that the addition of "a/k/a Palmetto Deliverance Church" altered the identity of the defendant. Since the Church was already a party and the Church has not suggested any manner in which it was prejudiced by the entry of the two orders on the same day, the trial court did not err with respect to the Church in considering the motion for summary judgment on the same day that it heard the motion to substitute.
The Church next contends that issues of fact precluded entry of summary judgment on plaintiffs' claims. The North Carolina Rules of Civil Procedure provide that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. 56(c). In deciding the motion, "'all inferences of fact . . . must be drawn against the movant and in favor of the party opposing the motion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d379, 381 (1975) (quoting 6 James W. Moore et al., Moore's Federal Practice § 56-15 , at 2337 (2d ed. 1971)).
The party moving for summary judgment has the burden of est
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