Sawyer v. Ruiz

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-1060
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1060 NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

BARBIE NADINE SAWYER

V. Perquimans County No. 07 CVS 25 STEPHEN ANTHONY RUIZ

Appeal by plaintiff from order entered 25 March 2013 by

Judge Cy A. Grant, Sr. in Perquimans County Superior Court.

Heard in the Court of Appeals 19 February 2014.

Joseph H. Forbes, Jr. for plaintiff-appellant.

Donald C. Prentiss for defendant-appellee.

HUNTER, Robert C., Judge.

Plaintiff Barbie Nadine Sawyer appeals the order granting

defendant Stephen Ruiz’s motion to dismiss after the trial court

concluded that plaintiff’s action was barred by the statute of

limitations. Plaintiff argues on appeal that the trial court

erred in granting defendant’s motion to dismiss because: (1)

plaintiff’s voluntary dismissal of her claim entitled her to a

one year tolling of the statute of limitations under Rule -2- 41(a)(1); and (2) plaintiff timely served defendant by

publication.

After careful review, we affirm the trial court’s order.

Background

This action arises out of a claim for personal injury

damages allegedly sustained by plaintiff in an automobile

collision with defendant on 10 December 2000. On 7 April 2003,

plaintiff filed suit in Perquimans County Superior Court.

Plaintiff attempted to serve defendant by sheriff, but the

summons was returned unserved with a notation indicating that

defendant no longer lived at the address on the summons and his

whereabouts were “unknown.”

After the initial summons was returned, plaintiff had the

clerk issue twelve alias and pluries summonses at least every 90

days, the last of which was issued on 18 November 2005.

Defendant was never served with any of the twelve alias and

pluries summonses.

On 8 February 2006, plaintiff filed a voluntary dismissal

without prejudice in Perquimans County. On 7 February 2007,

within one year of taking the voluntary dismissal, plaintiff

refiled her complaint (the “2007 complaint”). Plaintiff did not

attempt to serve defendant personally with the 2007 complaint; -3- instead, plaintiff attempted to serve defendant by publication.

Plaintiff filed an affidavit from the newspaper attesting to

plaintiff’s publication of the notice of service by publication

with the trial court. However, plaintiff never filed an

affidavit as required by Rule 4(j1) showing the circumstances

that warranted the use of service by publication.

On 8 February 2012, defendant’s automobile insurer

intervened in this action and filed motions to dismiss for lack

of jurisdiction and expiration of the three year statute of

limitations. The matters came on for hearing on 18 March 2013.

At the hearing, plaintiff offered to file the affidavit required

by Rule 4(j1), but the trial court denied her request.

On 25 March 2013, the trial court granted defendant’s

motion to dismiss for failure to obtain personal jurisdiction

over defendant and expiration of the three-year statute of

limitations. Plaintiff timely appealed.

Arguments

Plaintiff first argues that the trial court erred in

granting defendant’s motion to dismiss because she was entitled

to a one year tolling of the statute of limitations under Rule

41(a)(1) after filing the voluntary dismissal. Accordingly,

since she filed the 2007 complaint within one year of the -4- voluntary dismissal, her claim was not barred by the statute of

limitations. We disagree.

Rule 41(a)(1) provides in relevant part that: “If an action

commenced within the time prescribed therefor, or any claim

therein, is dismissed without prejudice under this subsection, a

new action based on the same claim may be commenced within one

year after such dismissal.” N.C. Gen. Stat. § 1A-1, Rule

41(a)(1) (2013). However, this Court has limited the

application of Rule 41(a)(1) to those cases in which proper

service has been accomplished prior to a plaintiff filing a

voluntary dismissal. Specifically, in Hall v. Lassiter, 44 N.C.

App. 23, 26-27, 260 S.E.2d 155, 157 (1979), this Court held that

a voluntarily-dismissed suit based on defective service does not

toll the statute of limitations under Rule 41(a)(1). Later

cases have held that not only does defective service prevent the

tolling of the statute of limitations under Rule 41(a)(1), but

also that “a plaintiff must obtain proper service prior to

dismissal in order to toll the statute of limitations for a

year” under Rule 41(a)(1). Camara v. Gbarbera, 191 N.C. App.

394, 397, 662 S.E.2d 920, 922 (2008); Lawrence v. Sullivan, 192

N.C. App. 608, 621, 666 S.E.2d 175, 182 (2008). In other words,

our caselaw is clear that a plaintiff is not entitled to the one -5- year tolling under Rule 41(a)(1) if service of the defendant was

defective or did not occur at all.

Plaintiff argues that subsequent cases have misinterpreted

the holding in Hall and asks us to “overrule” them. However,

“a panel of the Court of Appeals is bound by a prior decision of

another panel of the same court addressing the same question,

but in a different case, unless overturned by an intervening

decision from a higher court.” See In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989). As a result, we are

bound by Camara and Lawrence where this Court held that a

plaintiff who does not serve a defendant prior to taking a

voluntary dismissal is not entitled to the one year tolling of

the statute of limitations under Rule 41(a)(1).

Here, since it is undisputed that plaintiff never served

defendant prior to taking the voluntary dismissal, plaintiff was

not entitled to a one year tolling of the statute of limitations

under Rule 41(a)(1). Consequently, the statute of limitations

ran on her action 10 December 2003, three years after the

accident, prior to her filing the 2007 complaint. Although

plaintiff kept her original action alive by having alias and

pluries summonses issued every 90 days, her filing of the

voluntary dismissal discontinued her action; when she refiled -6- her complaint over six years after the incident giving rise to

the claim, the three-year statute of limitations had run.

Therefore, the trial court did not err in dismissing her 2007

complaint based on the statute of limitations.

Plaintiff next argues that she properly served defendant

with the 2007 complaint by publication. However, as discussed,

the statute of limitations ran on her action prior to filing the

2007 complaint. Accordingly, we need not address this argument

on appeal.

Conclusion

For the following reasons, we affirm the trial court’s

order.

AFFIRMED.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).