Please ensure Javascript is enabled for purposes of website accessibility

Tort/Negligence – Sovereign Immunity – Motion to Amend – Rule 15(c)

Tort/Negligence – Sovereign Immunity – Motion to Amend – Rule 15(c)

Listen to this article

Treadway v. Diez. (Lawyers Weekly No. 11-07-0029, 11 pp.) (Rick Elmore, J.) (Barbara Jackson, J., dissenting) Appealed from Buncombe County Superior Court. (Bradley B. Letts, J.) N.C. App. Click here for the full text of the opinion.

Holding: Even though the complaint originally named the sheriff’s department as the defendant, since the summonses were directed to the sheriff himself, the trial court did not err in allowing plaintiffs to amend the complaint to substitute the sheriff as the defendant.



Plaintiffs Latrecia and Hulin Treadway were riding a motorcycle during the Smoky Mountain Toy Run in 2005. They were injured when defendant Diez pulled out in front of them.

The accident occurred at an intersection being monitored by the Buncombe County Sheriff’s Department. Plaintiff filed a complaint naming the sheriff’s department but later mailed copies of the summonses and complaints to “Van Duncan, Sheriff of Buncombe County.”

Defendant-sheriff’s department filed a motion to dismiss on the basis that the department is not a legal entity subject to suit. Plaintiffs filed motions to amend to substitute Van Duncan, Sheriff of Buncombe County, for Buncombe County Sheriff’s Department. The motion was granted; defendant sheriff’s department appeals.


The department asks that this court reverse the denials of its motions to dismiss and grant of plaintiff’s motion to amend. The basis of its argument is that the department is not a legal entity subject to suit. That question is resolved by grant of plaintiff’s motion to amend, so we need only consider whether that motion was properly granted.

Generally a motion to amend is subject to the discretion of the court. Whether the actual service upon and corresponding notice of the claim was made to the correct party or entity is a key point. Here the various summonses were all served on Van Duncan, the sheriff, and thus the appropriate defendant for the suit. Defendant alleges that this is not a key point but relies on a case that we find to be distinguishable from this one.

We hold that the trial court did not err in granting plaintiff’s motions to amend or denying defendant’s motion to dismiss.



(Jackson, J.) The substitution at issue constitutes more than a simple correction of a misnomer. Plaintiffs sought to substitute a new party-defendant over whom they could obtain jurisdiction.

Rule 15 (c) provides for the amendment of claims, and new parties cannot be added or substituted under the guide of an amended claim. I am concerned that the precedent hereby established may erode the legislatively effected Rule 4 of the Rules of Civil Procedure.

Top Legal News

See All Top Legal News


See All Commentary