dissenting.
I respectfully dissent from Part III of the majority’s opinion because I believe our Rules of Civil Procedure should permit plaintiffs to amend their complaint.
This entire pleading imbroglio would have been avoided if plaintiffs had simply filed their complaint and served “Winn Dixie Raleigh, Inc.” as the defendant instead of “Winn Dixie Stores, Inc.” Plaintiffs would then be allowed to proceed with their suit. Since plaintiffs identified the defendant by its general corporate name rather than the specific name of the owner of the Raleigh store, the majority holds that plaintiffs’ action must be dismissed. I believe, however, that the purpose of our Rules of Civil Procedure is to resolve controversies on the merits rather than on pleading technicalities. See Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).
The majority notes that plaintiffs have never properly served defendant, Winn Dixie Raleigh, Inc., and then concludes that the defendant thus has never been made a party to this action. In fact, defendant Winn Dixie Raleigh, Inc. appeared before the trial court to argue its motion to dismiss plaintiffs’ complaint on the grounds of insufficiency of process, insufficiency of service, and that the statute of limitations expired. By arguing the statute of limitations defense, defendant made a general appearance in the action and therefore waived any objections to defective service. Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914 (1940); Williams v. Williams, 46 N.C. App. 787, 266 S.E.2d 25 (1980).
Plaintiffs filed their original complaint on 24 August 1992, within the applicable three-year limitations period, and named Winn Dixie Stores, Inc. as the defendant. After learning that the proper defendant was Winn Dixie Raleigh, Inc., plaintiffs filed their amended complaint on 20 April 1993.pursuant to N.C. Gen. Stat. § 1A-1, Rule 15(c) which provides:
A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
N.C. Gen. Stat. § 1A-1, Rule 15(c) (1990). Plaintiffs argue that under Rule 15(c) their amended complaint relates back to the date of their initial complaint and is not barred by the statute of limitations. *42North Carolina’s Rule 15(c) is modeled after Sec. 203(e) of the New York Civil Practice Law and Rules. Stevens v. Nimocks, 82 N.C. App. 350, 354, 346 S.E.2d 180, 182, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986); 1 G. Gray Wilson, North Carolina Civil Procedure, § 15-12 at 296 (1989). At the time of its adoption in 1967, our Rule 15(c) was more liberal than its federal counterpart since “[i]n North Carolina even a new cause of action can be said to relate back for amendment purposes.” Humphries v. Going, 59 F.R.D. 583, 585 (E.D.N.C. 1973). The test for whether an amendment will relate back to the original filing date depends upon whether the original pleading gave the defendant sufficient notice of the proposed claim. Mauney v. Morris, 316 N.C. 67, 340 S.E.2d 397 (1986); Burcl v. North Carolina Baptist Hosp., Inc., 306 N.C. 214, 293 S.E.2d 85 (1982). Whether a plaintiff can amend the complaint to add a new defendant depends on whether the new defendant had notice of the claim so as not to be prejudiced by the untimely amendment. “If some nexus among defendants will permit the trial judge to infer that the new defendant had notice of the original claims so as not to be prejudiced by the amendment, . . . Rule 15(c) will allow a complaint to be amended so as to add a new party, expiration of the limitations period notwithstanding.” Ring Drug Co., Inc. v. Carolina Medicorp Enterprises, Inc., 96 N.C. App. 277, 283, 385 S.E.2d 801, 805 (1989) (citation omitted). Ring Drug adopted the federal test set forth by the United States Supreme Court in Schiavone v. Fortune which provides that relation back will occur when:
1) the basic claim arises out of the conduct set forth in the original pleading, 2) the party to be brought in receives such notice that it will not be prejudiced in maintaining its defense, 3) the party knows or should have known that, but for a mistake concerning identity, the action would have been brought against it, and 4) the second and third requirements are fulfilled within the prescribed limitations period.
Ring Drug, 96 N.C. App. at 277, 385 S.E.2d at 806 (citing Schiavone v. Fortune, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 27 (1986)).
The rigid Schiavone test was widely criticized as too restrictive a reading of Federal Rule Civ. Proc. 15(c). See Joseph P. Bauer, Schiavone: An Un-Fortune-ate Illustration of the Supreme Court’s Role as Interpreter of the Federal Rules of Civil Procedure, 63 Notre Dame L. Rev. 720 (1988); Robert D. Brussack, Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61 S. Cal. L. Rev. 671 *43(1988); Joseph Dornfried, Schiavone v. Fortune: Notice Becomes a Threshold Requirement for Relation Back under Federal Rule 15(c), 65 N.C. L. Rev. 598 (1987). In response to this criticism, Federal Rule 15(c) was amended in 1991 to specifically prevent the harsh result of the Schiavone test. See Advisory Committee Notes to Rule 15, reprinted in 12 Charles A. Wright, Arthur R. Miller, and Frank W. Elliott, Federal Practice and Procedure, Appendix C (1994). The amendment provides that if the party to be added to the action received notice of the action within the period provided for service under Rule 4 so as not to be prejudiced in maintaining a defense, and knew or should have known that but for a mistake concerning the identity of the proper party, the action would have named that party, then relation back is proper. 6A Wright, Miller, and Mary Kay Kane, § 1498 (Supp. 1994); 3 James W. Moore et al., Moore’s Federal Practice § 15.01[15] (Supp. 1994). Therefore, the notice required under Federal Rule 15(c) is no longer tied to the governing statute of limitations period, but rather to the federal service period of 120 days. 6A Wright, Miller and Kane, at § 1498 (Supp. 1994).
In North Carolina, the period for service of process is 30 days. N.C. Gen. Stat. § 1A-1, Rule 4 (1990). In Crossman v. Moore, 115 N.C. App. 372, 444 S.E.2d 630, review allowed, 337 N.C. 690, 448 S.E.2d 519 (1994) this Court ruled that even though Federal Rule 15(c) has been amended, this Court was still bound by the decision in Ring Drug which relied on the now invalid federal test in interpreting our Rule 15(c). Crossman, 115 N.C. App. at 376, 444 S.E.2d at 632.
North Carolina’s Rule 15(c) is clear that so long as the original pleading gives notice of the transactions or occurrences to be proved by the amended pleading, the amended pleading will relate back to the date of the original pleading. N.C. Gen. Stat. § 1A-1, Rule 15(c) (1990). Therefore, it is illogical to rely on a now abandoned federal test to interpret our own clear rule. The instant case is the third reported decision this year which presents a Rule 15(c) problem. See Medford v. Haywood County Hosp. Foundation, Inc., 115 N.C. App. 474, 444 S.E.2d 699 (1994) (Plaintiff filed complaint against Haywood County Hospital Foundation, trial court denied motion to amend complaint to change name of defendant to Haywood County Hospital); Crossman, 115 N.C. App. at 374, 444 S.E.2d at 631 (Plaintiff filed complaint against Van Dolan Moore and Dolan Moore Company, trial court refused to allow amendment naming Van Dolan Moore II as defendant to relate back).
*44This situation can be easily remedied by modifying the test in Ring Drug in accordance with the 1991 amendment to Federal Rule 15(c). If a party to be added to an action received notice of the institution of the action within the period for service provided by Rule 4 so as not to be prejudiced in maintaining a defense, and knew or should have known that but for a mistake concerning the identity of the proper party the action would have named that party, then the amendment should relate back to the time of the original pleading. Applying this interpretation to the instant case, I conclude that since plaintiffs served their initial complaint incorrectly naming “Winn Dixie Stores, Inc.” as defendant upon C T Corporation System which was the registered agent for both Winn Dixie Stores, Inc. and Winn Dixie Raleigh, Inc., then the proper defendant, Winn Dixie Raleigh, Inc., received notice of the action so as not to be prejudiced in maintaining a defense. See Anderson Trucking Service v. Key Way Transport, 94 N.C. App. 36, 379 S.E.2d 665 (1989) (Service upon a registered agent was effective service upon the company).
My conclusion is consistent with the purpose of the Rules of Civil Procedure which is to insure a speedy trial by disregarding technicalities and form and instead proceed directly to the merits of an action, unlike the hoary system of pleading the rules replaced. See Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420 (1972). Because I believe the majority elevates form over substance, I respectfully dissent.