Valentine v. Solosko ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-852
Filed: 7 April 2020
Wake County, No. 18 CVS 2501
SHIRLEY VALENTINE, ADMINISTRATOR OF THE ESTATE OF SHANYE
JANISE ROBERTS, DECEASED, Plaintiff,
v.
STEPHANIE SOLOSKO, PA-C; NEXTCARE URGENT CARE; NEXTCARE, INC.;
NEXTCARE, INC. D.B.A. NEXTCARE URGENT CARE; MATRIX OCCUPATIONAL
HEALTH, INC. and MATRIX OCCUPATIONAL HEALTH, INC. D.B.A. NEXTCARE
URGENT CARE, Defendants.
Appeal by Defendants from order entered 18 March 2019 by Judge Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 4 February
2020.
The Law Office of Thomas E. Barwick, PLLC, by Thomas E. Barwick, for
Plaintiff-Appellee.
Lewis Brisbois Bisgaard & Smith, LLP, by Carrie E. Meigs and Justin G. May,
for Defendants-Appellants.
COLLINS, Judge.
Defendants appeal from an order granting Plaintiff’s motion for an extension
of time to serve the summons and complaint and denying Defendants’ motions to
dismiss and for judgment on the pleadings. Defendants argue that the trial court
erred in its application of Rules 4 and 6 of the North Carolina Rules of Civil
Procedure. Because a trial court is afforded discretion under Rule 6(b) to
VALENTINE V. SOLOSKO
Opinion of the Court
retroactively extend the time for service of process of a dormant summons under Rule
4(c) upon a finding of excusable neglect, we discern no legal error by the trial court.
Accordingly, we affirm the trial court’s order.
I. Procedural History
Plaintiff, Shirley Valentine, the administrator of the estate of her deceased
daughter Shanye Janise Roberts, filed a lawsuit in 2015 alleging medical malpractice
and wrongful death against Stephanie Solosko, PA-C; NextCare Urgent Care;
NextCare, Inc.; NextCare, Inc. D.B.A. NextCare Urgent Care; Matrix Occupational
Health, Inc.; and Matrix Occupational Health, Inc. D.B.A. NextCare Urgent Care
(collectively “Defendants”). The action arose out of medical care that Defendants
provided to the deceased on 10 April 2013. The trial court extended the statute of
limitations to 7 August 2015 pursuant to Rule 9(j) of the North Carolina Rules of Civil
Procedure. Plaintiff voluntarily dismissed the lawsuit without prejudice on
24 February 2017.
Plaintiff timely filed a second lawsuit on 23 February 2018 and the Clerk of
Court issued summonses (“the original summonses”) for all Defendants on that day.
Plaintiff served the original summonses on defendant Solosko on 15 May 2018 and
the other defendants on 17 May 2018 (eighty-one and eighty-three days, respectively,
after the original summonses were issued). Plaintiff filed an affidavit of service of
process on 15 June 2018, including the returned registry receipts as exhibits.
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Opinion of the Court
Plaintiff sued out alias or pluries summonses1 for all Defendants on 23 May
2018, eighty-nine days after the original summonses were issued. Plaintiff did not
serve these alias or pluries summonses on Defendants.
On 19 July 2018, Defendants filed an answer and a motion to dismiss on the
following grounds: lack of personal jurisdiction, insufficiency of process, insufficiency
of service of process, failure to state a claim upon which relief can be granted, and the
action being time-barred by the statute of limitations. Defendants also filed a motion
for judgment on the pleadings.
Plaintiff sued out alias or pluries summonses again on 22 August 2018,
ninety-one days after issuance of the previous alias or pluries summonses. Plaintiff
did not serve these alias or pluries summonses. On 28 September 2018, Plaintiff filed
a motion to extend time to issue, file, and serve the summonses, the alias or pluries
summonses, and the complaint.
After conducting a hearing, the trial court entered an order granting Plaintiff’s
motion for extension of time for service of the summonses and complaint, and denying
Defendants’ motions to dismiss and for judgment on the pleadings. Defendants filed
notice of appeal.
1 North Carolina Rule of Civil Procedure 4 appears to use the terms “alias or pluries summons”
and “alias and pluries summons” interchangeably, as do our courts. Throughout this opinion, we use
the term “alias or pluries summons.”
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II. Appellate Jurisdiction
The trial court’s order does not dispose of all claims and all defendants, and is
thus an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(a) (2019); Veazey v. City
of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). There is generally no
right to immediate appeal of an interlocutory order—although immediate appeal may
be permitted if the trial court certifies the order under N.C. Gen. Stat. § 1A-1, Rule
54(b), or if the appellant can show that the order affects a substantial right—because
most interlocutory appeals tend to hinder judicial economy by causing unnecessary
delay and expense. Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 145-46 (1982).
Here, the trial court could not certify the order pursuant to Rule 54(b) because
“there has been no adjudication as to any claim(s) or part(ies) within the meaning of
Rule 54(b).” Howze v. Hughes, 134 N.C. App. 493, 495, 518 S.E.2d 198, 199 (1999).
Moreover, contrary to Defendants’ argument that the order affects a substantial right
under N.C. Gen. Stat. § 1-277(b), which allows “the right of immediate appeal from
an adverse ruling as to the jurisdiction of the court over the person or property of the
defendant[,]” our courts have routinely held that that section 1-277(b) is limited to
rulings on minimum contacts questions, and does not apply to rulings based on
procedural issues regarding issuance or service of process, such as the order at issue
in this case. See Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 829 (1984).
Nonetheless, “because the case sub judice is one of those exceptional cases where
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judicial economy will be served by reviewing the interlocutory order, we will treat the
appeal as a petition for a writ of certiorari and consider the order on its merits.”
Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 428, 651 S.E.2d 386, 389
(2007) (citations omitted); N.C. R. App. P. 21(a)(1).
III. Discussion
The central question is whether the trial court may, upon a showing of
excusable neglect, grant an extension of time under these facts to serve a dormant
summons where a second alias or pluries summons was obtained ninety-one days
after the previous alias or pluries summons.
Plaintiff argues that Lemons v. Old Hickory Council, Boy Scouts of America,
Inc., 322 N.C. 271, 367 S.E.2d 655, reh’g denied, 322 N.C. 610, 370 S.E.2d 247 (1988),
and its progeny control the outcome here. Conversely, Defendants contend that
Plaintiff’s failure to timely obtain the second alias or pluries summons effectively
discontinued the action, as was the case in Dozier v. Crandall, 105 N.C. App. 74, 411
S.E.2d 635 (1992).
Rule 4 governs service of process. See N.C. Gen. Stat. § 1A-1, Rule 4 (2019).
Upon the filing of a complaint, summons shall be issued within five days. Id. at
§ 1A-1, Rule 4(a). Rule 4(c) requires that a summons be served within sixty days of
issuance. Id. at § 1A-1, Rule 4(c). A summons not served within sixty days “loses its
vitality and becomes functus officio, and service obtained thereafter does not confer
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jurisdiction on the trial court over the defendant. However, although a summons not
served within [sixty] days becomes dormant and unserveable, under Rule 4(c) it is
not invalidated nor is the action discontinued.” Dozier, 105 N.C. App. at 75-76, 411
S.E.2d at 636 (citations omitted).
If the summons is not served within sixty days of issuance, Rule 4(d) permits
the action to be continued in existence by an endorsement from the clerk or issuance
of an alias or pluries summons within ninety days of the issuance of the preceding
summons. N.C. Gen. Stat. § 1A-1, Rule 4(d). Any such alias or pluries summons
must be served within sixty days of issuance. See Lemons, 322 N.C. at 275, 367 S.E.2d
at 657.
When there is neither an endorsement nor issuance of alias or pluries
summons within the time specified in Rule 4(d), the action is discontinued as to any
defendant who was not served with summons within the time allowed. N.C. Gen.
Stat. § 1A-1, Rule 4(e). Thereafter, endorsement may be obtained or alias or pluries
summons may issue, but, as to any defendant who was not served with summons
within the time specified in Rule 4(d), the action shall be deemed to have commenced
on the date of such issuance or endorsement. Id.
“Rule 4 . . . must be interpreted in conjunction with Rule 6, which addresses
the computation of any time period prescribed by the Rules of Civil Procedure.”
Lemons, 322 N.C. at 275, 367 S.E.2d at 657. Rule 6 provides:
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When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at
any time in its discretion with or without motion or notice
order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as
extended by a previous order. Upon motion made after the
expiration of the specified period, the judge may permit the
act to be done where the failure to act was the result of
excusable neglect.
N.C. Gen. Stat. § 1A-1, Rule 6 (2019).
In Lemons, our North Carolina Supreme Court concluded that Rule 6
permitted the trial court to grant an extension of time to serve a dormant summons,
and thus revive it, where the alias summons was served on the defendant after the
time for service of process under Rule 4(c) had expired. Lemons, 322 N.C. at 277, 367
S.E.2d at 658. The plaintiff commenced an action against the defendant on
6 February 1986. A summons was also issued that day but was not served. An alias
summons was issued on 2 May of that year and was served on 5 June, more than
thirty days2 after its issuance. On 13 October 1986, the plaintiff filed a motion for
retroactive extension of time, nunc pro tunc, from 2 June until 6 June to serve the
alias summons. Construing Rule 4 in para materia with Rule 6(b), the Court
determined that the General Assembly, by adopting Rule 6(b), gave trial courts the
authority to extend the time provided in Rule 4(c) to serve a summons upon a finding
2 At the time the summons was issued in this case, Rule 4(c) required process to be served
within thirty days. At the time the instant action was commenced, the time allowed under Rule 4(c)
was sixty days.
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of excusable neglect, and thus to “breathe new life and effectiveness into [a dormant
summons] retroactively after it has become functus officio.” Id. at 274-75, 367 S.E.2d
at 657. The Court concluded that Rule 6 permitted an extension of time to serve a
dormant summons and thus revive it where the alias summons was served on the
defendant after the time for service of process under Rule 4(c) had expired. Id. at
277, 367 S.E.2d at 658.
Applying Lemons in Hollowell v. Carlisle, 115 N.C. App. 364, 444 S.E.2d 681
(1994), this Court concluded that Rule 6 permitted the trial court to grant a plaintiff
an extension of time to serve a dormant summons where no alias or pluries summons
was obtained. Id. at 368, 444 S.E.2d at 683. The defendant was served with the
original summons and complaint sometime between sixty-eight and ninety days after
issuance of the summons. Since the defendant “was served with a dormant summons
within the 90-day limit,” this Court held that “the trial court had the authority
pursuant to the language of Rule 6(b) to extend the time for service of process under
Rule 4(c), ‘to permit the act to be done where the failure to do the act was the result
of excusable neglect.’” Id. See also Wetchin v. Ocean Side Corp., 167 N.C. App. 756,
761, 606 S.E.2d 407, 410 (2005) (“The instant case is factually identical to Lemons.
The alias and pluries summons became dormant after sixty days, prior to plaintiffs’
effectuating service on 20 November 2002, but before the expiration of the summons
on 27 November 2002. The summons was merely dormant at the time of service; it
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had not expired and the trial court had the discretion to retroactively extend the time
for service of the alias and pluries summons.”).
By contrast, in Dozier, this Court distinguished Lemons and concluded that
Rule 6(b) does not allow a party to continue an action beyond the ninety-day period
specified in Rule 4(e). Dozier, 105 N.C. App. at 77-78, 411 S.E.2d at 637-38. In Dozier,
the plaintiff filed an action on 15 March 1990 alleging personal injuries. A summons
was issued on that day but returned unserved twelve days later. Ninety-two days
after the issuance of the original summons, an alias or pluries summons was issued;
it was returned unserved eleven days later. The defendant accepted service on
20 August 1990 and filed a motion for judgment on the pleadings asserting the three-
year statute of limitations. The plaintiff moved pursuant to Rule 6 to extend the
period for issuance of the alias or pluries summons.
The Court explained that under Lemons, a trial court, pursuant to Rule 6, may
in its discretion and upon a finding of excusable neglect extend the time provided in
Rule 4(c) to serve a dormant summons and thus revive it. Id. Lemons did not control,
however, because the action before the Dozier Court had been discontinued. The
Court explained:
Rule 4(e) specifically provides that where there is neither
endorsement nor issuance of alias or pluries summons
within 90 days after issuance of the last preceding
summons, the action is discontinued as to any defendant
not served within the time allowed and treated as if it had
never been filed. Under Rule 4(e), either an extension can
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be endorsed by the clerk or an alias or pluries summons
can be issued after the 90 days has run, but the action is
deemed to have commenced, as to such a defendant, on the
date of the endorsement or the issuance of the alias or
pluries summons. Thus, when plaintiff failed to have this
action continued through endorsement or issuance of alias
or pluries summons within 90 days, this action was
discontinued.
Id. at 78, 411 S.E.2d at 638 (internal quotation marks, emphasis, and citations
omitted).
Accordingly, “[w]hile Rule 6 under the Lemons case gives the trial court
discretion upon a showing of excusable neglect to permit an act to be done,” the Court
found “no authority in the rule or in Lemons to overrule the express language of Rule
4(e) as to the effect of failing to have an endorsement or alias or pluries summons
issued ‘within the time specified in Rule 4(d) . . . .’” Id.
Lemons and its progeny control this case, while Dozier involves a factual
situation which materially differs from that presented here. Unlike the defendant in
Dozier who was served some five months after the original summons was issued with
an alias summons that was issued outside the ninety-day time period prescribed by
Rule 4(d), Defendants in this case were served with the original summonses eighty-
one and eight-three days after issuance of the summonses. As in Hollowell,
Defendants were served with dormant summonses within the ninety-day limit
prescribed by Rule 4(d). Under Lemons, the trial court had the authority under Rule
6(b) to extend the time provided in Rule 4(c) to serve the summonses upon a finding
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of excusable neglect, and thus to “breathe new life and effectiveness” into the dormant
summonses retroactively after they had become functus officio. Lemons, 322 N.C. at
274-75, 367 S.E.2d at 657. Accordingly, “the trial court had the authority pursuant
to the language of Rule 6(b) to extend the time for service of process under Rule 4(c),
‘to permit the act to be done where the failure to do the act was the result of excusable
neglect.’” Hollowell, 115 N.C. App. at 368, 444 S.E.2d at 683.
As the trial court found that Plaintiff’s service of the original summonses
outside the sixty-day period prescribed in Rule 4(c) was a result of excusable neglect,3
and the trial court had the authority to invoke its discretion to retroactively extend
the time for Plaintiff to serve the summonses and complaint to 23 May 2018 and to
explicitly deem service of process timely under Rule 4, the trial court did not err in
granting Plaintiff’s motion for an extension of time to serve the summonses and
complaint.4 Moreover, as service of process was deemed timely under Rule 4, the trial
court obtained personal jurisdiction over Defendants. See Fender v. Deaton, 130 N.C.
3 This finding is not challenged and is thus binding upon us. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The trial court’s finding that Plaintiff’s failure to renew the alias
or pluries summons resulted from excusable neglect is not germane to this appeal, as the trial court
did not extend the time for suing out the second alias or pluries summons.
4 The trial court also found that “Plaintiff’s failure to renew her Alias and Pluries Summons
prior to the hearing of these Motions were the result of excusable neglect.” To the extent the trial
court’s order granting “Plaintiffs Motion to Extend the Time to Issue[], File and Serve Summonses and
Complaint” allowed Plaintiff an extension of time to renew her Alias and Pluries Summons, such
extension was erroneous under Dozier. See Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638 (There is
“no authority in the rule or in Lemons to overrule the express language of Rule 4(e) as to the effect of
failing to have an endorsement or alias or pluries summons issued ‘within the time specified in Rule
4(d) . . . .’”).
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App. 657, 659, 503 S.E.2d 707, 708 (1998) (“[I]t is well established that a court may
only obtain personal jurisdiction over a defendant by the issuance of summons and
service of process by one of the statutorily defined methods.”). Accordingly, Plaintiff’s
action was not barred by the statute of limitations. Thus, the trial court did not err
by denying Defendants’ motions to dismiss and for judgment on the pleadings.
IV. Conclusion
Because the trial court had the authority to exercise discretion under Rule 6(b)
to extend the time for Plaintiff to serve dormant summonses under Rule 4(c) upon a
finding of excusable neglect, we discern no legal error by the trial court. Accordingly,
we affirm the trial court’s order.
AFFIRMED.
Judges STROUD and BERGER concur.
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