Sawyer v. Ruiz ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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;
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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
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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
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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
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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).