Bockweg v. Anderson , 96 N.C. App. 660 ( 1990 )

387 S.E.2d 59 (1990) 96 N.C. App. 660

Cynthia BOCKWEG and husband, Gregory Bockweg, Plaintiffs,
v.
Stephen G. ANDERSON, Bonney H. Clark, Executrix of the Estate of R. Perry B. Clark, A. Stanley Link, Jr. Richard M. Holland and Lindhurst Gynecologic Associates, P.A., Defendants.

No. 8921SC247.

Court of Appeals of North Carolina.

January 4, 1990.

Law Offices of Grover C. McCain, Jr. by Grover C. McCain, Jr. and William R. Hamilton, Chapel Hill, for plaintiffs-appellants.

Tuggle, Duggins, Meschan & Elrod, P.A. by Joseph E. Elrod III, J. Reed Johnston, Jr. and Rachel B. Hall, Greensboro, for defendant-appellee Link.

Petree, Stockton & Robinson by J. Robert Elster, Stephen R. Berlin and Patrick G. Vale, Winston-Salem, for defendants-appellees Anderson, Clark, Holland and Lyndhurst Gynecologic Associates, P.A.

LEWIS, Judge.

Plaintiffs contend that the statute of limitations (G.S. 1-15(c)) was tolled by the one-year savings provision of G.S. 1A-1, Rule 41. The relevant language of Rule 41(a)(1) provides:

If an action commenced within the time prescribed ... is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless [the judge shall specify in his order a shorter time.]

Defendants contend that the one-year savings provision does not apply since the original suit was brought in a Federal Court. They rely on High v. Broadnax, 271 N.C. 313, 316, 156 S.E.2d 282, 284 (1967), which ruled that the savings provision is not tolled when the suit is brought in "another jurisdiction." In Cobb v. Clark, 4 N.C. App. 230, 233, 166 S.E.2d 692, 694 (1969), this Court subsequently interpreted the High ruling to include suits originally brought in a Federal Court sitting in North Carolina.

We note that the opinion in High was written under G.S. 1-25, which statute was superseded by Rule 41 in 1969. Unlike G.S. 1-25, the present Rule 41 specifically holds that the savings provision applies when the voluntary dismissal was granted "under this subsection." The statute will be tolled when voluntary dismissal is granted pursuant to the North Carolina Rules of Civil Procedure, regardless of whether or not the dismissal is granted in a State court.

The one-year savings provision of N.C. Rule 41 will therefore be tolled for dismissal from a Federal Court when that dismissal was granted pursuant to N.C.Rule 41. Since the Federal Court in this case did not specify whether it granted dismissal pursuant to the North Carolina Rules of Civil Procedure, we look to federal case law for guidance. In Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C.1981) we find clear federal precedent which establishes that a Fourth Circuit Federal Court will dismiss pursuant to N.C.Rule 41 in like cases. The Haislip court, following Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945) held that voluntary dismissal of a federal diversity action arising out of North Carolina will be granted pursuant to N.C.Rule 41 because the one-year tolling provision confers a "substantive right" and there was "no countervailing federal interest." 534 F. Supp. at 97-98.

Where the Fourth Circuit has previously established that it invokes N.C.Rule 41 in granting voluntary dismissal, we hold that dismissal has been granted "under this subsection" of N.C.Rule 41 and the one-year savings provision of 41(a) has been triggered for the purposes of refiling in state court. We distinguish the case before us from High and Cobb on the basis that the Fourth Circuit has, since those cases, stated that it dismisses pursuant to the state rule when a substantive right is to be preserved. Haislip v. Riggs, Id. Where the state rule was originally applied, the voluntary dismissal was granted "under this subsection" (Rule 41) and not in "another jurisdiction." Where the federal court has chosen to uphold the substantive rights of our residents to avail themselves of the one-year tolling provision, we will do no less.

Reversed and Remanded.

PHILLIPS and COZORT, JJ., concur.

PHILLIPS, Judge, concurring.

Even apart from the Fourth Circuit holdings referred to, the trial court and the defendants construe the phrase "under this subsection" too narrowly. The phrase "under this subsection," or one similar to it, appears in innumerable North Carolina statutes which grant rights that can be enforced in other courts. The liberal purpose of our rules leads me to believe that by the section involved our legislature intended to permit a dismissed suit to be refiled in our courts when the conditions stated in the rule are complied with, and had no rational reason to intend otherwise. In this case plaintiff's cause of action accrued under the law of North Carolina; the first suit was brought in a court with concurrent jurisdiction situated in this state; plaintiffs have met the conditions required by both the federal and state rules and are entitled to continue with their case in accordance therewith.