Jones v. Catholic Charities of the Diocese of Raleigh

• Court: Court of Appeals of North Carolina
• Decided: November 5, 2024
• Docket: 23-146
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-146

Filed 5 November 2024

Robeson County, No. 21CVS3254

PERCELL JONES, JR., Plaintiff,

v.

CATHOLIC CHARITIES OF THE DIOCESE OF RALEIGH, INC., THE FOUNDATION OF THE ROMAN CATHOLIC DIOCESE OF RALEIGH, INC.; ROMAN CATHOLIC DIOCESE OF RALEIGH, INC.; and ROMAN CATHOLIC CHURCH, Defendants.

Appeal by defendants from judgment entered 22 September 2022 by Judge

R. Kent Harrell in Robeson County Superior Court. Heard in the Court of Appeals 9

October 2024.

Lanier Law Group, P.A., by Laurie J. Meilleur, and Robert O. Jenkins, for the plaintiff-appellant.

Poyner & Spruill, LLP, by Steven B. Epstein, for the defendant-appellee.

TYSON, Judge.

Percell Jones, Jr. (“Plaintiff”) appeals from order entered 12 September 2022.

We affirm.

I. Background

Plaintiff filed a complaint against Catholic Charities of the Diocese of Raleigh,

Inc. (“Catholic Charities”) and the Roman Catholic Diocese of Raleigh (“Raleigh

Diocese”) (collectively “Defendants”), on 28 December 2021, alleging he was sexually JONES V. CATHOLIC CHARITIES OF THE DIOCESE OF RALEIGH, INC.

Opinion of the Court

abused as a child by two priests from 1967 until 1969. Plaintiff’s claims were filed

pursuant to S.L. 2019-245, 2019 N.C. Sess. Laws 1231 (“SAFE Child Act”). The

Robeson County Clerk of Court issued a summons the same day the complaint was

filed. Plaintiff did not attempt to serve Defendants. Plaintiff’s suit also named the

Foundation of the Roman Catholic Diocese of Raleigh, Inc. and the Roman Catholic

Church as defendants. Plaintiff voluntarily dismissed his claims against the

Foundation of the Roman Catholic Diocese of Raleigh, Inc. and the Roman Catholic

Church on 26 August 2022.

Plaintiff sought an alias and pluries summons, which was issued on 8 March

2022. Plaintiff did not serve this alias and pluries summons or the complaint on

Defendants. Plaintiff sought a second alias and pluries summons, which issued on 2

June 2022. Plaintiff served the second alias and pluries summons on Raleigh Diocese

on 27 June 2022 and on Catholic Charities on 28 June 2022.

Plaintiff’s counsel had previously and successfully served Defendants with

summonses and complaints for other actions under the SAFE Child Act. Defendants

filed a motion to dismiss pursuant to Rules 12(b)(6) and 41 of the North Carolina

Rules of Civil Procedure on 25 July 2022. See N.C. Gen. Stat. § 1A-1, Rules 12(b)(6)

and 41 (2023).

Following a hearing, the trial court allowed Defendants’ motion to dismiss with

prejudice and entered an order on 12 September 2022. Plaintiff appeals.

II. Jurisdiction

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Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issue

Plaintiff argues the trial court erred in granting Defendants’ motion to dismiss

for failure to prosecute under N.C. Gen. Stat. § 1A-1, Rule 41(b). N.C. Gen. Stat. §

1A-1, Rule 41(b) (2023).

IV. Standard of Review

“The standard of review for a Rule 41(b) dismissal is (1) whether the findings

of fact by the trial court are supported by competent evidence, and (2) whether the

findings of fact support the trial court’s conclusions of law and its judgment.” Cohen

v. McLawhorn, 208 N.C. App. 492, 498, 704 S.E.2d 519, 524 (2010) (citation and

internal quotation marks omitted). “Unchallenged findings of fact are presumed to

be supported by competent evidence, and are binding on appeal.” Id. (citations and

internal quotation marks omitted). If competent evidence supports the findings, they

are binding upon appeal. Starco, Inc. v. AMG Bonding and Ins. Servs., Inc., 124 N.C.

App. 332, 335, 477 S.E.2d 211, 214 (1996) (citation omitted).

“[I]n reviewing the appropriateness of the particular sanction imposed, an

abuse of discretion standard is proper because the rule’s provision that the court shall

impose sanctions for motions abuses concentrates the court’s discretion on the

selection of an appropriate sanction rather than on the decision to impose sanctions.”

Egelhof v. Szulik, 193 N.C. App. 612, 619, 668 S.E.2d 367, 372 (2008) (quoting Turner

v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)). The trial court’s

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“conclusions of law are reviewable de novo on appeal.” Starco, 124 N.C. App. at 336,

477 S.E.2d at 215 (citation omitted).

V. Failure to Prosecute

Plaintiff argues the trial court erred in granting Defendants’ motion to dismiss

for failure to prosecute pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(b). Rule 41(b)

provides, in relevant part, “For failure of the plaintiff to prosecute or to comply with

these rules or any order of court, a defendant may move for dismissal of an action or

of any claim therein against him.” N.C. Gen. Stat. § 1A-1, Rule 41(b).

Prior to dismissing a claim for failure to prosecute, the trial court is to

determine three factors: “(1) whether the plaintiff acted in a manner which

deliberately or unreasonably delayed the matter; (2) the amount of prejudice, if any,

to the defendant; and[,] (3) the reason, if one exists, that sanctions short of dismissal

would not suffice.” Wilder v. Wilder, 146 N.C. App. 574, 578, 553 S.E.2d 425, 428

(2001).

Plaintiff asserts no evidence tends to show he intended to thwart or delay

service or prosecuting the matter, there was no unreasonable delay, Defendants

would not be prejudiced, and the trial court did not consider other lesser sanctions.

A. Deliberate Delay

Plaintiff argues he did not deliberately delay the matter by failing to serve the

complaint to Defendants for over six months after issuance of the complaint and

issuance of three separate summons. N.C. Gen. Stat. § 1A-1, Rule 4(a) mandates:

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“The complaint and summons shall be delivered to some proper person for service.”

N.C. Gen. Stat. § 1A-1, Rule 4(a) (2023).

Plaintiff extended the time allowed for service twice by serving alias and

pluries summonses until they served Defendants. Our Supreme Court has recognized

alias and pluries summons are an appropriate tool for extending the time for service,

yet also determined delays of service for less than a year have been deliberate and

unreasonable. See Smith v. Quinn, 324 N.C. 316, 319, 378 S.E.2d 28, 30 (1989).

In Smith, our Supreme Court determined an eight-month delay by use of alias

and pluries summons was a violation of the spirit of the rules of civil procedure for

the purpose of delay or obtaining an unfair advantage. Id. The plaintiff filed a

complaint for an alleged injury resulting from a fall on the defendant’s property. Id.

at 317, 378 S.E.2d at 29. She used alias and pluries summons to delay service for

over eight months. Id.

Our Supreme Court reasoned the failure to serve the defendant for eight

months prevented the defendant from critical knowledge of the alleged incident,

which had occurred three years prior. Id. at 317, 378 S.E.2d at 30. The Court held

dismissal “pursuant to Rule 41(b) based upon plaintiff’s violation of Rule 4(a) for the

purposes of delay and in order to gain an unfair advantage over the defendant” was

appropriate. Id. at 319, 378 S.E.2d at 31.

This Court has also held a six-month unexplained delay in service also

necessitates dismissal under Rule 41. See Sellers v. High Point Mem. Hosp., 97 N.C.

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App. 299, 388 S.E.2d 197 (1990).

Plaintiff delayed service for over six months post-filing. The six-month delay

prevented Defendants’ knowledge of the pending suit on a nearly sixty-year-old claim.

No attempt was made to serve the initial summons or complaint or the first alias and

pluries summons.

Plaintiff did not have any issue locating Defendants. Plaintiff’s counsel had

served Defendants in four other actions under the SAFE Child Act, including one filed

in the same county 32 minutes prior to this action. Sufficient evidence of intent to

delay existed for the trial court to dismiss. Plaintiff’s argument is overruled.

B. Unreasonable Delay

Plaintiff argues no unreasonable delay occurred, because the case would have

been stayed while the constitutionality of the SAFE Child Act was decided. Other

than a citation to Wilder, Plaintiff has not provided authority to support his

argument, asserting no unreasonable delay occurred, because other pending SAFE

Child Act cases were stayed pending constitutional challenge. Defendants assert

they were not aware of this claim while preparing to defend against other pending

cases brought under the SAFE Child Act. Plaintiff’s argument is dismissed.

C. Prejudice to Defendants

Plaintiff argues the trial court erred in finding Defendants would be prejudiced

by having to participate in the suit. Plaintiff contends prejudice cannot be presumed

based on a lack of immediate notice of this claim.

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While this assertion may be true, the trial court specifically found the delay

had prejudiced Defendants. Plaintiff’s delays increased Defendants’ time to

investigate the claims and preserve evidence on the nearly sixty-year-old time-

barred, but statutorily revived claims. Plaintiff’s delays increased Defendants’ costs

and ability to preserve and present their defenses to Plaintiff’s revived claims. The

trial court could properly conclude Plaintiff’s unexplained delays in service prejudiced

Defendants. Sellers, 97 N.C. App. at 302, 388 S.E.2d at 198.

D. Dismissal as the Appropriate Sanction

Plaintiff argues the trial court’s conclusion of law, stating no other sanction

short of dismissal with prejudice will suffice, is erroneous. Plaintiff does not offer any

showing or support tending to show a lesser sanction would be appropriate under

these circumstances.

“The trial court in its discretion found that no lesser sanction would better

serve the interests of justice in this case. We find no basis for concluding that the

trial court abused its discretion.” Id. at 303, 388 S.E.2d at 199 (citation omitted). The

trial court’s discretionary choice of sanction was properly authorized and is not shown

to be an abuse of discretion. Id.

VI. Conclusion

The trial court properly found Plaintiff’s unexplained delays in service of the

complaint was unreasonable, if not also deliberate. The trial court’s conclusions are

supported by findings based upon competent evidence.

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The trial court correctly concluded Plaintiff had deliberately and unreasonably

delayed service of process, and the unexplained delay had prejudiced Defendants.

The trial court did not err nor abuse its discretion in concluding dismissal was the

most appropriate sanction and granting Defendants’ motion to dismiss for failure to

prosecute under Rule 41(b). N.C. Gen. Stat. § 1A-1, Rule 41(b). The trial court’s order

is affirmed. It is so ordered.

AFFIRMED.

Judges GORE and FLOOD concur.

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