84 Lumber Co. v. Barkley , 120 N.C. App. 271 ( 1995 )

461 S.E.2d 780 (1995)

84 LUMBER COMPANY, Plaintiff,
v.
Charles A. BARKLEY and Joel D. Carpenter, d/b/a Paradigm Builders, Defendants.

No. COA94-1133.

Court of Appeals of North Carolina.

September 19, 1995.

Harry Pavilack & Associates by David C. Haar, for plaintiff-appellant.

Henry L. Fowler, III, for defendant-appellee.

EAGLES, Judge.

In granting dismissal of the second action, the trial court ruled that plaintiff's action was barred because plaintiff failed to refile within one year after plaintiff's previous action had been involuntarily dismissed without prejudice pursuant to Rule 41(b). Plaintiff argues that the second action was timely filed because it was filed within the applicable statute of limitations period. After careful review, we reverse and remand.

Under Rule 41(b), a dismissal operates as an adjudication on the merits, unless the judge specifies that the dismissal is without prejudice. G.S. § 1A-1, Rule 41(b) (1977). Here, the order expressly stated that the 29 June 1992 dismissal was without prejudice. Rule 41(b) states in pertinent part that:

If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal.

G.S. § 1A-1, Rule 41(b) (1977). The unambiguous language of Rule 41(b) permits the trial court to affirmatively specify in its order that the action be refiled within a year or less. Clark v. Velsicol Chemical Corp., 110 N.C.App. 803, 809, 431 S.E.2d 227, 230 (1993), aff'd, 336 N.C. 599, 444 S.E.2d 223 (1994). The 29 June 1992 order contains no specification whatsoever with regard to the time in which plaintiff may commence a new action based on the same claim. Accordingly, the applicable statute of limitations is controlling with regard to the time in which plaintiff was allowed to refile.

Even if the order had included language purporting to limit the time in which plaintiff could commence a new action to one year or less, defendant's argument would fail. The Rule 41(b) language by which the judge may, in his discretion, grant plaintiff an additional one year or less to refile is often referred to as the "savings provision" of Rule 41(b). Clark, 110 N.C.App. at 809, 431 S.E.2d at 230. Although the savings provision of Rule 41(b) is triggered differently than the savings provision of Rule 41(a) in that Rule 41(b) requires the judge to affirmatively grant extra time, the effect of each savings provision once triggered is the same. With respect to Rule 41(a)(1), the extra time granted:

[I]s an extension of time beyond the general statute of limitation rather than a restriction upon the general statute of limitation. In other words, a party always has the time limit prescribed by the general statute of limitation and in addition thereto they get the one year provided in Rule 41(a)(1). But Rule 41(a)(1) shall not be used to limit the time to one year if the general statute of limitation has not expired.

Whitehurst v. Virginia Dare Transportation Co., 19 N.C.App. 352, 356, 198 S.E.2d 741, 743 (1973). This same rationale applies to any savings period granted by the judge under Rule 41(b). Accordingly, plaintiff here could refile its action at any time until the expiration of the applicable statute of limitations. The record before us is ambiguous as to the appropriate statute of limitations. Whether plaintiff properly refiled within the time allotted by the applicable statute of limitations is not now before us.

We do not reach the issue of what time for refiling, if any, is available to a plaintiff whose case has been dismissed under Rule 41(b) without prejudice and without a specifically granted savings period, but after the applicable statute of limitations has run. We note, however, that generally if a plaintiff wishes to take advantage of the savings provision under Rule 41(b), it is plaintiff's "responsibility to convince [the court] to include in the order or opinion a statement specifying that plaintiff had [additional time] to refile." Clark, 110 N.C.App. at 809, 431 S.E.2d at 230.

Reversed and remanded.

LEWIS and JOHN, JJ., concur.