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Docket Number

No. 8415SC664

Attorney(S)

McCain Essen, by Grover C. McCain, Jr., and Jeff Erick Essen, for plaintiff-appellant. Yates, Fleishman, McLamb Weyher, by Joseph W. Yates, III and Barbara B. Weyher, for defendant-appellee.

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Smart Summary

Case Summary: Michael Anthony Estrada v. Steven J. Burnham

Factual and Procedural Background

On 18 June 1982 at 4:28 p.m., plaintiff Michael Estrada filed a complaint in Durham County Superior Court alleging defendant Steven J. Burnham was negligent in his care and treatment of the plaintiff during a hospitalization from 17 June 1979 through 7 July 1979, and that the negligence proximately caused amputation of plaintiff's left leg, medical expenses, lost wages, and pain and suffering. A civil summons was issued. Two minutes later, at 4:30 p.m., plaintiff filed a Notice of Dismissal voluntarily dismissing the action without prejudice pursuant to G.S. 1A-1, Rule 41(a)(1).

On 16 June 1983 plaintiff filed a new complaint alleging the same injuries from the same hospitalization period. Defendant was properly served and moved to dismiss under Rule 12(b)(6) on the ground that the action was barred by the three-year statute of limitations. The trial court granted defendant's motion to dismiss. The sole question on appeal was whether the trial court erred in granting defendant's Rule 12(b)(6) motion on statute of limitations grounds. The Court of Appeals reversed.

Legal Issues Presented

Whether a voluntary dismissal under G.S. 1A-1, Rule 41(a)(1), taken immediately after filing a complaint (but with no service attempted), tolls the statute of limitations and triggers the one-year refiling "saving" provision of Rule 41(a)(1).
Whether Rule 41(a) requires that the plaintiff attempt service upon the defendant before the plaintiff may obtain the one-year extension to refile a voluntarily dismissed action.
Whether the trial court properly dismissed the refiled action as time-barred under the three-year statute of limitations.

Arguments of the Parties

Plaintiff-Appellant's Arguments

The opinion records that plaintiff relied on Rule 41(a)(1) as permitting a voluntary dismissal without prejudice and that Rule 3 establishes that an action is commenced by filing a complaint; by filing the complaint and then dismissing, the plaintiff tolled the statute of limitations and obtained the one-year refiling period under Rule 41(a)(1). (See Court's description of Rule 3 and Rule 41(a) application.)

Defendant-Appellee's Arguments

Defendant asserted that plaintiff must serve or attempt service upon defendant before plaintiff can benefit from the Rule 41(a) "saving" provision that allows an action to be refiled within one year after voluntary dismissal.
Defendant relied on several cases (Adams v. Brooks; Wheeler v. Roberts; Hall v. Lassiter) as controlling authority for the proposition that a voluntary dismissal does not provide the one-year extension when the original action is not "kept alive." In Wheeler and Hall, the original actions had been discontinued by operation of law under Rule 4(e) when a voluntary dismissal was attempted; defendant argued those cases required denial of the saving provision here.
Defendant additionally raised contentions regarding Rule 11, which the Court characterized as inapplicable to the facts; the opinion does not detail the precise Rule 11 arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Freight Lines v. Pope, Flynn Co., 42 N.C. App. 285, 256 S.E.2d 522 (1979)	That once an action is timely filed, a notice of voluntary dismissal gives plaintiff an extension of time beyond the general statute of limitations and permits refiling within one year under Rule 41(a).	The Court cited Freight Lines as precedent supporting the proposition that a timely filing followed by voluntary dismissal entitles plaintiff to the one-year refiling period.
Whitehurst v. Transportation Co., 19 N.C. App. 352, 198 S.E.2d 741 (1973)	Same principle: a voluntary dismissal after timely filing allows refiling within one year under Rule 41(a).	The Court relied on Whitehurst to support its holding that a timely-filed action that is voluntarily dismissed without prejudice triggers the Rule 41(a) saving provision.
Hailslip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981)	Federal authority recognizing that voluntary dismissal after timely filing can permit a refiling period under relevant rules.	The Court cited Hailslip as additional authority consistent with the state cases affirming the saving effect of a timely voluntary dismissal.
Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19 (1985)	Case cited by defendant as allegedly controlling on the issue (the opinion does not quote its rule verbatim).	The Court noted defendant's reliance on Adams but treated the case as distinguishable; the opinion does not state Adams controlled the present facts.
Wheeler v. Roberts, 45 N.C. App. 311, 262 S.E.2d 829 (1980)	Holds that when an original action has been discontinued by operation of law (Rule 4(e)) at the time a voluntary dismissal is attempted, the attempted dismissal is a nullity and the one-year Rule 41(a) extension is not available.	The Court distinguished Wheeler, stating that in Wheeler the action was not "alive" when dismissal was attempted; by contrast, in the instant case the original action was "alive" when plaintiff filed the notice of dismissal.
Hall v. Lassiter, 44 N.C. App. 23, 260 S.E.2d 155 (1979)	Similar to Wheeler: attempted voluntary dismissal after action discontinued by operation of law does not invoke the Rule 41(a) saving provision.	The Court distinguished Hall on the same grounds as Wheeler, explaining those decisions are not controlling because the original action here remained viable at the time of dismissal.

Court's Reasoning and Analysis

The court began by identifying the sole question on appeal: whether the dismissal of the refiled action for being time-barred was correct. The Court analyzed the text of the Rules of Civil Procedure and applicable precedent:

Rule 41(a): The Court recited Rule 41(a)(1) which permits a plaintiff to dismiss an action by filing a notice of dismissal and provides that, unless otherwise stated, such a dismissal is without prejudice and that a new action based on the same claim may be commenced within one year after such dismissal if the original action was commenced within the time prescribed. The Court emphasized the statutory language and saving provision of Rule 41(a)(1).
Rule 3 and Commencement: The Court noted Rule 3 provides an action is commenced by filing a complaint. The Court stated that commencement of an action normally tolls the statute of limitations.
Interpretation of Rule 41(a): The Court reasoned that Rule 41(a) does not require that a plaintiff attempt service upon a defendant before taking a voluntary dismissal and obtaining the Rule 41(a) saving benefit. Nor does Rule 41(a) limit the reasons why plaintiff may take a voluntary dismissal, based on the rule's text and operation.
Precedent Support: The Court relied on prior state appellate decisions (Freight Lines; Whitehurst) and a federal district court decision (Hailslip) that endorse the proposition that once an action is timely filed, a notice of voluntary dismissal gives the plaintiff an extension beyond the general statute of limitations and allows refiling within one year.
Distinguishing contrary cases: The Court addressed defendant's reliance on Adams, Wheeler, and Hall, explaining that Wheeler and Hall involved situations where the original actions had been discontinued by operation of law under Rule 4(e) before a voluntary dismissal was attempted; in those circumstances an attempted voluntary dismissal was a nullity and the one-year extension was unavailable. The instant case was distinguishable because the original action was "alive" when plaintiff voluntarily dismissed it two minutes after filing; no intervening time period had elapsed that required plaintiff to take additional steps to keep the action viable.
Conclusion of analysis: Because the original action had been timely filed and remained viable when plaintiff filed a notice of dismissal, the filing and immediate voluntary dismissal tolled the statute of limitations and invoked the one-year refiling period under Rule 41(a)(1).
Rule 11 contentions: The Court briefly stated defendant's contentions regarding Rule 11 were inapplicable to the facts; the opinion does not elaborate further.

Holding and Implications

Holding: The Court reversed the trial court's judgment granting defendant's Rule 12(b)(6) motion to dismiss. The Court's decision rests on the conclusion that by filing a timely complaint, having a summons issued, and immediately taking a voluntary dismissal without prejudice under G.S. 1A-1, Rule 41(a)(1), the plaintiff tolled the statute of limitations and obtained the one-year extension to commence a new action based on the same claim.

REVERSED.

Implications: The direct effect of the decision is that the dismissal of plaintiff's refiled complaint as time-barred was improper and the refiled action may proceed under the Rule 41(a)(1) saving provision. The Court acknowledged that this result may be harsh to the defendant because it leaves the defendant subject to suit without notice for an additional year, and the Court observed that any modification of the Rules of Civil Procedure to address such policy concerns would be within the province of the Legislature. The opinion did not purport to create broader statutory amendments; it applied existing rules and precedent to the facts presented.

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MICHAEL ANTHONY ESTRADA v. STEVEN J. BURNHAM

Rules of Civil Procedure 41 — voluntary dismissal before service attempted on defendant By filing his complaint, having summons issued, and taking a voluntary dismissal two minutes later, plaintiff tolled the statute of limitations and effectively obtained the one year extension within which to commence a new action based on the same claim pursuant to G.S. 1A-1, Rule 41 (a)(1) even though no service on defendant was attempted.

The sole question presented on this appeal is whether the court erred in granting defendant's motion to dismiss pursuant to Rule 12 (b)(6) on the basis that the action was barred by the three year statute of limitations.

PARKER, Judge.

On 18 June 1982, at 4:28 p.m., a complaint styled "Michael Estrada v. Steven J. Burnham" was filed in Durham County Superior Court, and a civil summons was issued. The complaint alleged that defendant was negligent in his care and treatment of plaintiff during a 17 June 1979 through 7 July 1979 hospitalization at North Carolina Memorial Hospital, and that as a proximate result of defendant's negligence, plaintiff had to undergo amputation of his left leg and sustained medical expenses, lost wages, and pain and suffering. Two minutes after the complaint was filed, at 4:30 p.m., plaintiff filed a Notice of Dismissal, voluntarily dismissing the action without prejudice pursuant to G.S. 1A-1, Rule 41 (a)(1).

On 16 June 1983 plaintiff filed his complaint in this action against defendant alleging injuries resulting from defendant's negligence during the same 17 June 1979 through 7 July 1979 hospitalization. Defendant was properly served with process and filed a motion to dismiss which is the issue on this appeal.

General Statute 1A-1, Rule 41 provides:

(a) Voluntary Dismissal; effect thereof.

(1) By Plaintiff; by Stipulation. — Subject to the provisions of Rule 23 (c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim. 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 unless a stipulation filed under (ii) of this subsection shall specify a shorter time.

There is no contention by defendant that the original complaint was not timely filed. Rather, defendant asserts that plaintiff must serve or attempt service upon defendant before plaintiff can benefit from the "saving" provision of Rule 41 (a) allowing an action to be refiled within one year after a voluntary dismissal. We do not agree.

Rule 41(a) does not require that plaintiff attempt service upon defendant before plaintiff can voluntarily dismiss his action. Nor does Rule 41(a) limit the reasons why plaintiff may take a voluntary dismissal. Rule 3 of the Rules of Civil Procedure provides that an action is commenced by filing a complaint. The commencement of an action normally tolls the statute of limitations.

This Court has previously held that once an action is timely filed, the giving of a notice of voluntary dismissal gives plaintiff an extension of time beyond the general statute of limitation and allows plaintiff an additional year from the date the notice was given to refile an action based on the same claim. Freight Lines v. Pope, Flynn Co., 42 N.C. App. 285, 256 S.E.2d 522 (1979); Whitehurst v. Transportation Co., 19 N.C. App. 352, 198 S.E.2d 741 (1973); See also Hailslip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981).

Defendant contends that the cases of Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19 (1985), Wheeler v. Roberts, 45 N.C. App. 311, 262 S.E.2d 829 (1980) and Hall v. Lassiter, 44 N.C. App. 23, 260 S.E.2d 155 (1979), are controlling on the issue. These cases are distinguishable for the reason that plaintiffs in these cases failed to keep their original actions "alive." In Wheeler and Hall, the original actions had already been discontinued by operation of law under Rule 4 (e) at the time plaintiff attempted to take a voluntary dismissal. The attempted voluntary dismissal was a nullity, and the one year extension under Rule 41 (a) was not available. In the instant case, the original action was "alive" at the time of plaintiff's voluntary dismissal. Before plaintiff took his voluntary dismissal, no time period had lapsed during which plaintiff was required by the Rules of Civil Procedure to take further steps to keep his action viable. Plaintiff's original action ended when he filed his notice of voluntary dismissal.

By filing his complaint, having the summons issued, and taking the voluntary dismissal without prejudice, plaintiff tolled the statute of limitations and effectively obtained the one year extension within which to commence a new action based on the same claim pursuant to Rule 41 (a)(1).

While the result may be harsh as to defendant because defendant is left subject to suit without notice for an additional year, modification, if any, of the Rules of Civil Procedure is within the province of the Legislature.

Defendant's contentions regarding Rule 11 are, in our judgment, inapplicable to the facts of this case.

The judgment appealed from is

Reversed.

Judges ARNOLD and EAGLES concur.

ESTRADA v. BURNHAM