Payin v. Foy

• Court: Court of Appeals of North Carolina
• Decided: June 6, 2023
• Docket: 22-735
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-735

Filed 06 June 2023

Wake County, No. 21CVD14552

VINCENT K. PAYIN, Plaintiff,

v.

JEFFREY PIERCE FOY, Defendant.

Appeal by Plaintiff from order entered 3 February 2022 by Judge Ned W.

Mangum in Wake County District Court. Heard in the Court of Appeals 11 April

2023.

Vincent K. Payin, pro se, Plaintiff-Appellant.

No brief filed for Defendant-Appellee.

COLLINS, Judge.

Plaintiff Vincent K. Payin appeals from a 3 February 2022 order dismissing

his “Complaint For[] [R]estorative Justice” against Defendant Jeffrey Pierce Foy for

Plaintiff’s failure to properly effectuate service of the summons and complaint upon

Defendant and because the complaint was time barred by the applicable statute of

limitations. For the reasons stated herein, we affirm.

I. Background

This appeal arises from Plaintiff’s attempt to collect a debt allegedly owed to

him by Decedent David Foy’s Estate, which was being administered by Defendant, PAYIN V. FOY

Opinion of the Court

Decedent’s son.

According to Plaintiff, he was hired to provide homecare services to Decedent

in 2011. When Decedent’s health insurance expired in February 2016, Plaintiff and

Decedent entered into a verbal agreement whereby Decedent would pay Plaintiff out-

of-pocket for continued homecare services.

Decedent died intestate on 24 May 2017. A notice to creditors of Decedent’s

Estate was published in accordance with law, providing that all claims against the

Estate must be submitted to Defendant by 10 March 2018 (the “creditor deadline”).

Plaintiff submitted a claim against the Estate for $22,866.45 on 28 March 2018,

eighteen days past the creditor deadline. On 10 April 2018, Plaintiff received a letter

from Defendant informing him that his claim against Decedent’s Estate had been

rejected. Plaintiff filed a Rule 60(b)(1) & (6) Motion to Reopen Decedent’s Estate. 1

The motion was denied on 17 June 2019 for Defendant’s failure to timely submit the

claim and for his failure to timely commence an action to recover on the claim after

receiving written notice of the claim’s rejection.

On 25 October 2021, Plaintiff filed his complaint for restorative justice in Wake

County District Court. A summons was not issued on that date or within five days.

Plaintiff sent a copy of the complaint to Defendant’s former attorney, Terrell Thomas.

However, Thomas was not representing Defendant in this matter and had not agreed

1 This motion is not in the record but is referenced in the order denying the motion.

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to accept service on Defendant’s behalf. On or around 24 November 2021, Defendant

filed a Rule 12 Motion to Dismiss for, among other things, Plaintiff’s failure to cause

a summons to be issued. On 2 December 2021, thirty-five days after the complaint

had been filed, Plaintiff caused a summons to be issued in the name of Defendant.

Plaintiff attempted to effectuate service of the summons and the complaint upon

Defendant, but this attempt failed as he sent the documents to Defendant’s former

address where Defendant no longer resided.

After a hearing on 3 February 2022 on Defendant’s motion to dismiss,

Plaintiff’s complaint was dismissed by order entered that day. Plaintiff timely

appealed to this Court.

II. Discussion

Plaintiff first argues that the trial court erred by dismissing his complaint

because the issuance and service of process was proper.

“A civil action is commenced by filing a complaint with the court.” N.C. Gen.

Stat. § 1A-1, Rule 3 (2021). “Upon the filing of the complaint, summons shall be

issued forthwith, and in any event within five days.” Id. § 1A-1, Rule 4(a) (2021).

When a summons is not issued within five days, the action abates and is deemed

never to have commenced. Roshelli v. Sperry, 57 N.C. App. 305, 308, 291 S.E.2d 355,

357 (1982). However, a properly issued and served summons can revive and

commence a new action on the date of its issuance, unless defendant moves to dismiss

the action prior to issuance and service of the summons. Stokes v. Wilson & Redding

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Law Firm, 72 N.C. App. 107, 111, 323 S.E.2d 470, 474 (1984); Roshelli, 57 N.C. App.

at 308, 291 S.E.2d at 357.

Here, Plaintiff filed his complaint on 25 October 2021. A summons was not

issued within five days and the action abated. Defendant filed his motion to dismiss

the action on 29 November 2021, several days before Plaintiff caused a summons to

be issued on 2 December 2021. Accordingly, the action was not revived upon the

issuance of the summons and the trial court did not err by granting Defendant’s

motion to dismiss. See Stokes, 72 N.C. App. at 111, 323 S.E.2d at 474. In light of this

conclusion, we need not reach Plaintiff’s remaining arguments.

III. Conclusion

Because Plaintiff failed to cause a summons to be timely issued in the name of

Defendant, the trial court did not err by dismissing Plaintiff’s complaint. The trial

court’s order is affirmed.

AFFIRMED.

Chief Judge STROUD and Judge FLOOD concur.

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