Sellers v. High Point Memorial Hospital, Inc. , 97 N.C. App. 299 ( 1990 )

ORR, Judge.

Plaintiffs argue that the trial court erred in dismissing its suit based upon a six-month delay in service of process. Under G.S. 1A-1, Rule 4(a), when a plaintiff files a complaint, a summons must be issued within five days and delivered to the sheriff of the county “where service is to be made” or another person “authorized by law to serve summons.” Service must be made within 30 days under Rule 4(c) unless otherwise excepted. Id. A summons may be extended by obtaining an alias and pluries summons pursuant to Rule 4(d). Id.

In the case sub judice, plaintiffs maintain that their failure to serve the summons on the hospital was not done in bad faith, nor an attempt to delay or gain unfair advantage and therefore the hospital was not prejudiced by the delay. We disagree.

First, the hospital was prejudiced by the delay. It had no notice of this action until its name appeared on the court calendar for the week of 14 November 1988. Moreover, the hospital was not served until after it filed a motion to dismiss on 10 November 1988. We can only speculate what plaintiffs intended to argue before the trial court during the week the case was scheduled if defendants had not been notified by that time.

We do not accept plaintiffs’ argument that because the hospital had notice and engaged in extensive discovery of the original action, then it was not prejudiced by the delay in notice in this action. The purpose of Rule 3 and Rule 4 of the N. C. Rules of Civil Procedure is to ensure that a defendant will have notice of an action against him. Estrada v. Burnham, 316 N.C. 318, 326, 341 S.E.2d 538, 544 (1986). What the hospital had notice of was the original action, not this action.

Second, the record establishes that plaintiffs intentionally delayed service on the hospital. The trial court found that plaintiffs’ delay was for tactical reasons, and plaintiffs did not except. Plaintiffs maintain that they wanted to serve defendant Hill first because she would be more difficult to locate. Plaintiffs failed to explain, however, why this “tactical reason” should not be considered in bad faith or an attempt to gain unfair advantage in the case. We can assume from the record that plaintiffs did not want the hospital (a named defendant) to even know of the lawsuit until the other defendant was served. We believe this to be in bad faith and an attempt to gain unfair advantage over the hospital.

Plaintiffs next argue that they did not violate the statute of limitations on service of process because they properly obtained alias and pluries summonses.

Plaintiffs rely on Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986), which held that a duly issued summons not served or delivered to the sheriff within 30 days could serve as the basis for an alias or pluries summons and would toll the statute of limitations. The Smith court specifically stated that it was not addressing the issue of whether the complaint and summons were issued in bad faith or subject to involuntary dismissal under G.S. 1A-1, Rule 41(b). Id. at 615, 346 S.E.2d at 426. Therefore, we hold that Smith does not apply to the facts of this case. Further, the trial court concluded “that the plaintiffs have failed to prosecute their action” and in its discretion the plaintiff’s action against the defendant hospital was dismissed with prejudice.

Plaintiffs maintain that an involuntary dismissal of their complaint was inappropriately harsh and severe. The trial court in its discretion found “that no other 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. See Smith v. Quinn, 324 N.C. 316, 378 S.E.2d 28 (1989) (plaintiff’s action properly dismissed under Rule 41(b) based upon violation of Rule 4(a) for the purposes of delay and in order to gain an unfair advantage over defendant).

The evidence in the case at bar clearly supports the trial court’s findings of fact and its conclusions of law. Such findings are conclusive on appeal when supported by competent evidence, even if there is evidence to the contrary. Lumbee River Electric Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983).

For the reasons set forth above, we affirm the trial court’s decision.

Affirmed.

Judge Johnson concurs. Judge WELLS concurs in the result.