RALPH WARREN MABRY, SR.,
Plaintiff
v
.
PATRICIA GALE HUNEYCUTT, Executor of the Estate of Mabon Furr
Kimrey, Deceased,
Defendant
Poyner & Spruill, L.L.P., by E. Fitzgerald Parnell, III,
Rebecca B. Wofford and Megan L. Tedrick; Morton, Grigg and
Phillips, LLP, by Ernest H. Morton, Jr., for plaintiff-
appellant.
John W. Webster and Morris York Williams Surles & Barringer,
LLP, by John P. Barringer, for defendant-appellee.
HUNTER, Judge.
Ralph Warren Mabry, Sr. (“plaintiff”) appeals the trial
court's 9 April 2001 order dismissing this action as barred by the
applicable statute of limitations. We hold that this action is not
barred by the applicable statute of limitations, and we therefore
reverse and remand for further proceedings.
In reviewing the grant of a motion to dismiss pursuant to Rule
12(b)(6) of the North Carolina Rules of Civil Procedure (“Rule
12(b)(6)”), the allegations in the complaint are treated as true.
Cage v. Colonial Building Co., 337 N.C. 682, 683, 448 S.E.2d 115,
116 (1994). Plaintiff's complaint and the record present the
following facts. On 27 June 1997, Mabon Furr Kimrey (“Mr. Kimrey”) was
operating a motor vehicle and negligently caused the vehicle to
strike plaintiff causing injuries to plaintiff. Mr. Kimrey
subsequently died on 7 November 1997 from causes unrelated to the
accident. Mr. Kimrey's widow, Bertha H. Kimrey (“Mrs. Kimrey”),
filed an application for probate and petition for summary
administration of Mr. Kimrey's estate pursuant to N.C. Gen. Stat.
§ 28A-28-1 (1999). On 26 November 1997, the Clerk of Superior
Court for Stanly County issued an order for summary administration
to Mrs. Kimrey.
On 26 June 2000, plaintiff filed a complaint against Mrs.
Kimrey individually, and as the personal representative of Mr.
Kimrey's estate, seeking damages for injuries sustained in the car
accident. On 25 August 2000, Mrs. Kimrey filed an answer in which
she specifically denied that she was the personal representative of
Mr. Kimrey's estate. Plaintiff then filed a “Notice of Dismissal
Without Prejudice” on 18 October 2000 pursuant to Rule 41 of the
North Carolina Rules of Civil Procedure.
Also on 18 October 2000, upon application by plaintiff,
Patricia Gale Huneycutt (“defendant”) was issued Letters
Testamentary in the matter of the estate of Mr. Kimrey. Two days
later, on 20 October 2000, plaintiff filed the present action
against defendant as Executrix of the Estate of Mr. Kimrey. The
complaint was served upon defendant on 24 October 2000. On 27
December 2000, defendant filed an answer, including a motion to
dismiss plaintiff's claim as barred by the applicable statute oflimitations. On 23 March 2001, after a hearing on the motion to
dismiss, the trial court entered an order dismissing the claim
pursuant to Rule 12(b)(6) as barred by the statute of limitations.
Plaintiff appeals. On appeal, plaintiff aptly argues, and we
agree, that a proper construction and application of the pertinent
statutes leads to the clear conclusion that plaintiff's claim is
not barred by the statute of limitations.
Personal injury actions are governed by the three-year statute
of limitations set forth in N.C. Gen. Stat. § 1-52 (1999). See,
e.g., Lassiter v. Faison, 111 N.C. App. 206, 208, 432 S.E.2d 373,
374, disc. review denied, 335 N.C. 176, 436 S.E.2d 381 (1993).
However, when the person against whom a personal injury action may
be brought dies prior to the running of this three-year period,
N.C. Gen. Stat. § 1-22 (1999) may become applicable. See id. That
statute provides, in pertinent part:
If a person against whom an action may be
brought dies before the expiration of the time
limited for the commencement thereof, and the
cause of action survives, an action may be
commenced against his personal representative
or collector after the expiration of that
time; provided, the action is brought or
notice of the claim upon which the action is
based is presented to the personal
representative or collector within the time
specified for the presentation of claims in
G.S. 28A-19-3.
N.C. Gen. Stat. § 1-22. N.C. Gen. Stat. § 1-22 is an enabling
statute in the sense that, if the conditions of the statute are
satisfied, the statute allows an action to be commenced despite the
fact the generally applicable three-year period has expired. See
Lassiter, 111 N.C. App. at 208, 432 S.E.2d at 374. The statute referenced in N.C. Gen. Stat. § 1-22, namely N.C.
Gen. Stat. § 28A-19-3, requires that a claim against a decedent's
estate, which arose before the death of the decedent, must be
“presented to the personal representative or collector . . . by the
date specified in the general notice to creditors as provided for
in G.S. 28A-14-1(a).” N.C. Gen. Stat. § 28A-19-3(a) (1999).
N.C. Gen. Stat. § 28A-14-1(a) (1999) provides, in pertinent
part:
Every personal representative and collector
after the granting of letters shall notify all
persons, firms and corporations having claims
against the decedent to present the same to
such personal representative or collector, on
or before a day to be named in such notice,
which day must be at least three months from
the day of the first publication or posting of
such notice.
N.C. Gen. Stat. § 28A-14-1(a).
In the present case, the accident and alleged personal
injuries in question occurred on 27 June 1997. N.C. Gen. Stat. §
1-52 would bar a personal injury action arising out of this
accident after three years, or as of 27 June 2000. However, Mr.
Kimrey died on 7 November 1997, at which time the three-year
limitations period had not yet expired. Plaintiff's cause of
action against Mr. Kimrey survived Mr. Kimrey's death, see N.C.
Gen. Stat. § 28A-18-1 (1999), and thus, pursuant to N.C. Gen. Stat.
§ 1-22, plaintiff is permitted to commence this cause of action
against Mr. Kimrey's personal representative or collector, provided
that either (1) it is brought within the time specified for the
presentation of claims in N.C. Gen. Stat. § 28A-19-3, or (2) noticeof the claim upon which the action is based is presented to the
personal representative or collector within the time specified for
the presentation of claims in N.C. Gen. Stat. § 28A-19-3.
As noted above, N.C. Gen. Stat. § 28A-19-3(a) requires that a
claim against a decedent's estate which arose before the death of
the decedent must be “presented to the personal representative or
collector . . . by the date specified in the general notice to
creditors as provided for in G.S. 28A-14-1(a),” and N.C. Gen. Stat.
§ 28A-14-1(a) provides that the absolute earliest “deadline” date
which may be specified by the personal representative or collector
in the general notice to creditors is “three months from the day of
the first publication or posting of such notice.” N.C. Gen. Stat.
§ 28A-14-1(a).
In the first place, we note that the record does not establish
whether defendant has ever published or posted a general notice to
creditors. Where an administrator or executor fails to establish
that she has complied with the notice requirements set forth in
N.C. Gen. Stat. § 28A-14-1, the administrator or executor may not
plead the statute of limitations in N.C. Gen. Stat. § 28A-19-3(a)
as a bar because “[t]he time limitations for presentation of claims
provided in G.S. 28A-19-3(a) will not aid an executor or
administrator who fails to observe its requirements.” Anderson v.
Gooding, 300 N.C. 170, 174, 265 S.E.2d 201, 204 (1980); see also
Lee v. Keck, 68 N.C. App. 320, 329-30, 315 S.E.2d 323, 329, disc.
review denied, 311 N.C. 401, 319 S.E.2d 271 (1984). Thus,
defendant's failure to establish in the record that she compliedwith the requirements of N.C. Gen. Stat. § 28A-18-3(a) regarding
general notice to creditors precludes defendant from relying upon
the statute of limitations as a bar.
Furthermore, although the record fails to disclose if or when
defendant published or posted notice to creditors, the earliest
date at which she could have published or posted such notice would
be the day she qualified as the personal representative of Mr.
Kimrey's estate, which was 18 October 2000. Assuming arguendo that
she did publish or post notice to creditors on this date, the
earliest “deadline” date which she could have specified in such
notice would have been 18 January 2001 (or three months from 18
October 2000), pursuant to N.C. Gen. Stat. § 28A-14-1(a).
Plaintiff filed this complaint on 20 October 2000, and
defendant was served with the complaint on 24 October 2000, both
dates clearly falling before the earliest possible “deadline” date
of 18 January 2001. Further, both dates were within three years of
Mr. Kimrey's death, thus complying with the outside time limitation
established by N.C. Gen. Stat. § 28A-19-3(f) (all claims barrable
under subdivisions (a) and (b) are barred if first publication or
posting of general notice to creditors under N.C. Gen. Stat. § 28A-
14-1 does not occur within three years from death of decedent).
Thus, plaintiff satisfied the time requirements established by N.C.
Gen. Stat. § 28A-19-3 and N.C. Gen. Stat. § 28A-14-1(a), and,
therefore, plaintiff complied with the conditions established by
N.C. Gen. Stat. § 1-22. As a result, plaintiff's claim is notbarred by the statute of limitations, and the trial court erred in
dismissing the claim on this basis.
Without citing any authority, defendant appears to argue that
this action was properly dismissed because: (1) the Clerk of
Superior Court for Stanly County issued an order for summary
administration to Mrs. Kimrey on 26 November 1997; (2) the deadline
for plaintiff to have presented his claim should be calculated from
this date; (3) plaintiff failed to present a claim within the
permissible period as calculated from this date; and (4) plaintiff
voluntarily dismissed the first action against Mrs. Kimrey. We
disagree.
All of the statutes discussed above (N.C. Gen. Stat. §§ 1-22,
28A-19-3(a), and 28A-14-1(a)) refer to the actions of the “personal
representative” or “collector” of the estate. As astutely
explained by plaintiff in his brief, when a court enters an order
that a surviving spouse is entitled to summary administration
pursuant to N.C. Gen. Stat. § 28A-28-1, the surviving spouse does
not necessarily thereby attain the status of the personal
representative or collector of the decedent's estate. The
statutory scheme clearly contemplates that these roles are separate
and distinct. See N.C. Gen. Stat. §§ 28A-28-2(a)(8), 28A-28-3,
28A-28-7 (1999). Thus, the fact that the clerk of superior court
entered an order that Mrs. Kimrey was entitled to summary
administration did not thereby result in Mrs. Kimrey becoming the
personal representative of Mr. Kimrey's estate. Moreover, Mrs. Kimrey in her answer to plaintiff's original
complaint specifically denied that she was the personal
representative of Mr. Kimrey's estate. As a result, plaintiff
prudently dismissed his original complaint against Mrs. Kimrey,
and, after the court issued Letters Testamentary to defendant upon
plaintiff's application, plaintiff timely filed the present action
against defendant, who specifically admitted in her answer that she
is the personal representative of Mr. Kimrey's estate. For these
reasons, we reject defendant's argument.
We reverse and remand for further proceedings.
Reversed and remanded.
Judges WALKER and BRYANT concur.
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