1. Process and Service--time period for filing summons--calculation
of weekends
The trial court erred in a personal injury case arising out of an automobile accident by
holding that plaintiffs' claim violated the statute of limitations based on the trial court's
miscalculation of the allowable time period for the filing of the summons even though seven
calendar days elapsed between the filing of the complaint and issuance of summons, because the
seven days included an intervening weekend which means the calculation results in the summons
being issued in five days. N.C.G.S. § 1A-1, Rule 6(a).
2. Process and Service--finding of improper service--summons
The trial court's additional finding of improper service in a personal injury case is
reversed because although an improper summons amounts to improper service of process, the
Court of Appeals already held the summons was proper.
3. Attorneys--pro hac vice admission--requirements
Although the trial court erred in a personal injury case arising out of an automobile
accident by admitting plaintiffs' attorney pro hac vice where the motion failed to supply the trial
court with three of the five requirements for pro hac vice representation under N.C.G.S. § 84-4.1,
plaintiffs were not prejudiced because they failed to express any concern about the competency
of their attorney during the court proceedings.
Kirk D. Lyons, pro hac vice, Austin, TX, and Norman & Gardner
by Larry E. Norman, Louisburg, NC, for plaintiffs-appellants.
Yates, McLamb and Weyher by John W. Minier for defendants-
appellees.
THOMAS, Judge.
Plaintiffs Ellis Lester Selph, Jr. and Stacy Wade Harris
appeal from a motion to dismiss granted in favor of defendants
Scott Post (Post) and Observer Transportation Company (OTC) basedon the statute of limitations. Plaintiffs assert two assignments
of error.
The facts are as follows: On 31 January 1996, plaintiffs were
allegedly injured when their vehicle collided with a truck driven
by Post. The truck was owned by OTC. Plaintiffs retained Kirk D.
Lyons (Lyons), a Texas attorney, to represent them in a negligence
action against defendants.
On Friday, 29 January 1999, plaintiffs, through Lyons, filed
a complaint against defendants, with a summons being issued for
both defendants on the following Friday, 5 February 1999.
Plaintiffs also filed a motion for pro hac vice admission of Lyons
to represent them, naming Larry Norman (Norman) of Louisburg, North
Carolina as associated local counsel. This motion was granted on
29 January 1999. In July 1999, defendants filed a motion to
dismiss, based inter alia on improper service and a violation of
the statute of limitations. In September 1999, plaintiffs filed a
motion for enlargement of time. Both motions were heard on 13
September 1999. At the hearing, Lyons was present to represent
plaintiffs, but Norman was unavailable. On 20 September 1999, the
trial court granted defendants' motion to dismiss based upon the
plaintiffs' “fail[ure] to effect proper service of process upon
defendants” and plaintiffs' “fail[ure] to commence [the] action
within the statutory limitations period[.]”
Plaintiffs appeal from this order.
[1]/A HREF>By plaintiffs' first assignment of error, they argue the
trial court erred in holding their claim violated the statute of
limitations by miscalculating the allowable time period for thefiling of the summons. We agree and reverse the trial court.
A party must commence an action seeking recovery for personal
injuries from a motor vehicle accident within three years. N.C.
Gen. Stat. § 1-52(16) (2000). An action is commenced by the filing
of a complaint or the issuance of a summons. Roshelli v. Sperry,
63 N.C. App. 509, 305 S.E.2d 218, rev. denied 309 N.C. 633, 308
S.E.2d 716 (1983) (Roshelli II). Under N.C. Gen. Stat. § 1A-1,
Rule 4(a), the summons must be issued within five days of filing a
complaint. When a proper summons is not issued within five days of
the filing of a complaint, the action abates. Roshelli v. Sperry,
57 N.C. App. 305, 291 S.E.2d 355 (1982) (Roshelli I). Under
Roshelli II, an action for negligence is not barred by the statute
of limitations if the complaint is filed within the statute of
limitations period, as long as the summons is proper and issued
within five days of the file date of the complaint, even if the
summons is issued after the three years have passed.
In the instant case, seven calendar days elapsed between the
filing of the complaint and issuance of summons. Nothing else
appearing, the filing of the summons would not relate back to the
date of the filing of the complaint because the summons was not
issued within five days. The action would be deemed commenced on
5 February 1999, the date of the summons issuance, which is outside
the statute of limitations period. However, here, the seven days
included an intervening weekend. Rule 6(a) of the N.C. Rules of
Civil Procedure provides in pertinent part:
In computing any period of time prescribed orallowed by these rules, by order
of court or
any applicable statutes respecting publication
of notices, the day of the act, event, default
or publication after which the designated
period of time begins to run is not to be
included. The last day of the period so
computed is to be included, unless it is a
Saturday, Sunday or a legal holiday, in which
event the period runs until the end of the
next day which is not a Saturday, Sunday or
legal holiday. When the period of time
prescribed or allowed is less than seven days,
intermediate Saturdays, Sundays and legal
holidays shall be excluded from the
computation.
N.C. Gen. Stat. § 1A-1, Rule 6(a) (2000). (Emphasis added).
Accordingly, the calculation results in the summons being issued in
five days because Saturday and Sunday are statutorily excluded.
Defendants, however, argue the language of Rule 4(a) requiring
summons to be issued “in any event within five days” negates the
application of Rule 6(a) regarding the calculation of time. Rule
6(a) explicitly applies to “any period of time prescribed or
allowed by [the Rules of Civil Procedure.]” We thus reject this
argument, holding the cut-off date was met precisely, and
plaintiffs' action was timely commenced. Therefore, as to
plaintiffs' first assignment of error, we agree and reverse the
trial court.
[2]Plaintiffs further contend the trial court's additional
rationale of improper service of process was erroneously mentioned
in the order, stating that in the motion to dismiss hearing, there
was no discussion about improper service. In the transcript of the
motion to dismiss hearing, the trial judge specifically stated he
based the grant of the motion to dismiss on the ruling in the
Roshelli I case. As aforementioned, that case held an action willabate if the proper summons is not issued within five days of the
filing of the complaint. We find an improper summons amounts to
improper service of process and was correctly mentioned in the
order. However, as we have already held the summons was indeed
proper, the finding of improper service is likewise reversed.
[3]By plaintiffs' second assignment of error, they argue the
trial court erred in admitting plaintiffs' attorney pro hac vice
with plaintiffs not being properly represented by counsel at the
hearing to dismiss. We agree, but find no prejudicial error.
N.C. Gen. Stat. § 84-4.1 delineates the requirements which
govern the admission of out-of-state attorneys to practice pro hac
vice.
Any attorney domiciled in another state, and
regularly admitted to practice in the courts
of record of that state and in good standing
therein, having been retained as attorney for
a party to any civil or criminal legal
proceeding pending in the General Court of
Justice of North Carolina . . . may, on
motion, be admitted to practice in that forum
for the sole purpose of appearing for a client
in the litigation.
(1999). The statute further provides five requirements for pro hac
vice representation to be granted: 1) the attorney's full name,
address, bar number and status; 2) the client's address, along with
a statement that the client has retained the attorney for
representation; 3) the attorney's statement to represent the client
until a final determination is made (unless allowed to withdraw
sooner) and to be subject to N.C. orders and disciplinary actions
as if the attorney were a member of the N.C. State Bar in good
standing; 4) a statement that the state from which the attorneycomes grants like privileges to N.C. attorneys in good standing;
and 5) a statement that the moving attorney is associated with a
local attorney who will accept service, etc. on behalf of the
moving attorney. In the instant case, Lyons, in his motion to
appear pro hac vice, failed to supply the trial court with the
second, third and fourth requirements in section 84-4.1. We note
Lyons repeated identical mistakes in his motion to appear pro hac
vice before this Court despite plaintiffs' argument in their brief
about the inadequacy of the motion in the trial court. This Court,
accordingly, denied without prejudice his motion to appear before
us. Lyons later satisfied the requirements of N.C. Gen. Stat. §
84-4.1 regarding the appeal and his motion to appear pro hac vice
was granted.
Where attorneys neither licensed by the North Carolina State
Bar nor authorized to appear in court in compliance with section
84-4.1 purport to represent litigating parties, the attorneys are
not considered to be participating attorneys. State v. Daughtry,
8 N.C. App. 318, 174 S.E.2d 76 (1970). However, we have also held
that where there is non-compliance with the statutory requirement
of section 84-4.1, some showing of prejudice must be made to
reverse on this issue because the pro hac vice statute was not
designed to protect a party from his own attorney. See Pope v.
Jacobs, 51 N.C. App. 374, 276 S.E.2d 487, (1981); State v.
Scarboro, 38 N.C. App. 105, 247 S.E.2d 273, (1978), review denied
295 N.C. 652, 248 S.E.2d 256, cert. denied, 440 U.S. 938, 59 L. Ed.2d 497 (1979). In Scarboro, we held the defendant could n
ot
complain where he did not express concern regarding the competency
of his attorney during the proceedings. Moreover, we held section
84-4.1 “does not vest in [a defendant] rights to counsel other than
what he would ordinarily possess in the absence of [section 84-
4.1.]” Scarboro, 38 N.C. App. at 107-08, 247 S.E.2d at 274. The
Scarboro Court concluded that “any error resulting from non-
compliance with G.S. 84-4.1 on these facts is found to be
harmless.” Likewise, in the instant case, plaintiff has not noted
any expression of concern during the proceedings. We therefore
hold any error is not prejudicial and reject this assignment of
error.
For the reasons discussed herein, we reverse in part as to the
dismissal based on the statute of limitations and improper service
and remand for trial. We affirm in part as to the pro hac vice
motion.
REVERSED AND REMANDED IN PART, AFFIRMED IN PART.
Judges WYNN and McGEE concur.
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