Statutes of Limitation and Repose--statute of limitations--improper retroactive extension of
time to issue alias and pluries summons
The trial court did not err by granting defendant's motion for summary judgment on the
basis of the expiration of the statute of limitations in an action where plaintiffs alleged they had
obtained a judgment against defendant, that the judgment had not been paid, and that this action
was not barred by the statute of limitations, because: (1) the first trial judge did not have the
authority to retroactively extend the time to issue the alias and pluries summons under N.C.G.S.
§ 1A-1, Rule 6(b) when the action was discontinued and plaintiffs failed to obtain an
endorsement or issuance of an alias and pluries summons within the ninety-day time period; and
(2) a second trial judge did not lack authority to overrule or ignore the first trial judge's order
when the first judge's order was a nullity and the statute of limitations was a positive bar to
plaintiffs' claims.
Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harold L.
Kennedy, III, and Harvey L. Kennedy, for plaintiff-appellants.
Allman Spry Leggett & Crumpler, P.A., by Jeffrey B. Watson,
for defendant-appellee.
EAGLES, Chief Judge.
Plaintiffs filed this action 18 January 2002 alleging that
they had obtained a judgment against the defendant on 20 January
1992, that the judgment had not been paid and that this action was
not barred by the statute of limitations. A summons in this action
was issued 18 January 2002 and returned unserved on 21 March 2002.
On 14 May 2002, an alias and pluries summons was issued (116 daysafter the issuance of the original summons) and was returned served
on 21 May 2002.
On 17 May 2002, plaintiffs filed a motion asking for a
retroactive extension of time for the issuance of the alias and
pluries summons to 15 May 2002 (three days after the plaintiffs had
already caused the alias and pluries summons to be issued). On 24
May 2002, after a hearing, Judge L. Todd Burke concluded that the
plaintiffs had shown excusable neglect in failing to have the alias
and pluries summons issued within 90 days of the issuance of the
original summons and entered an order retroactively extending the
time for the issuance of the alias and pluries summons to and
including 15 May 2002. On 23 May 2002, (the day before the hearing
before Judge Burke), the defendant filed a motion to dismiss, a
motion for summary judgment on the basis of the statute of
limitations, and an answer to the complaint in which he asserted
the statute of limitations as a bar to plaintiffs' claims. On 28
June 2002, Judge Richard L. Doughton granted defendant's 23 May
2002 motion for summary judgment. Plaintiffs appeal from this
order.
Plaintiffs argue that the trial court erred in granting
defendant's motion for summary judgment because: (1) Judge Burke
had the authority to retroactively extend the time to issue the
alias and pluries summons pursuant to N.C.R. Civ. P. 6(b) and (2)
Judge Doughton lacked the authority to modify, overrule or change
Judge Burke's order.
Plaintiffs contend that Rule 6(b) allows the trial court to
exercise its discretion to retroactively extend the ninety-day timeperiod provided in N.C.R. Civ. P. 4(d) for issuance of an alias and
pluries summons or for an endorsement upon the original summons to
effectuate service on defendant and to prevent a discontinuance of
the action. We disagree.
Rule 6(b) gives our trial courts the discretion, upon a
finding of “excusable neglect,” to retroactively extend the time
provided in N.C.R. Civ. P. 4(c) for serving a summons after it has
become dormant. Lemons v. Old Hickory Council, 322 N.C. 271, 276,
367 S.E.2d 655, 658 (1988). However, this Court held in Dozier v.
Crandall, 105 N.C. App. 74, 411 S.E.2d 635, disc. review denied as
improvidently allowed, 332 N.C. 480, 420 S.E.2d 826 (1992), that
trial courts do not have discretion pursuant to Rule 6(b) to
prevent a discontinuance of an action under N.C.R. Civ. P. 4(e)
where there is neither an endorsement of the original summons nor
issuance of an alias and pluries summons within ninety days after
issuance of the last preceding summons. Id. at 78, 411 S.E.2d at
638. While Lemons permits the extension of time to serve a dormant
summons, Dozier controls if the action has become discontinued.
Here because this action was discontinued, we are bound by
Dozier. Plaintiffs had the original summons issued on 18 January
2002. The summons was returned unserved on 21 March 2002.
Plaintiffs had ninety days from 18 January 2002 to have the alias
and pluries summons issued under Rule 4(d). Plaintiffs failed to
obtain an endorsement or an alias and pluries summons on the
defendant within the ninety-day time period. The plaintiffs'
attempt to retroactively extend the time period for issuing the
alias and pluries summons is not allowed by Rule 6(b). Under Rule4(e), the alias and pluries summons issued on 14 May 2002 resulted
in the commencement of an entirely new action, outside of the
statutory limitations period. Because discontinuance of the action
is mandated under this Court's decision in Dozier, the trial court
erred in allowing plaintiffs' motion to retroactively extend the
time period for issuing an alias and pluries summons. Plaintiffs'
assignment of error fails.
Plaintiffs argue that Judge Doughton, in granting defendant's
motion for summary judgment, in effect overruled Judge Burke's
order retroactively extending the time for the issuance of the
alias and pluries summons. Pursuant to N.C.R. Civ. P. 56(c),
summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). A
defendant moving for summary judgment bears the burden of showing
that no triable issue of fact exists on the record before the court
or that the plaintiff's claim is fatally flawed. Caldwell v.
Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). In deciding
whether to grant or deny the motion, the trial court must draw all
inferences of fact against the moving party and in favor of the
party opposing summary judgment. Id. On appeal from a ruling by
the trial court on a motion for summary judgment, the question for
our determination is whether the court's conclusions of law were
correct. Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481
(1987). Here, the plaintiffs' action had been discontinued because the
plaintiffs failed to obtain an endorsement or issue an alias and
pluries summons within the time period specified in Rule 4(d). The
summons issued on 14 May 2002 began a new action, one that was
commenced outside the statute of limitations. On 24 May 2002, the
trial court was without jurisdiction to issue an order that
retroactively extended the time for issuing an alias and pluries
summons in this action. “An order is void ab initio only when it
is issued by a court that does not have jurisdiction. Such an
order is a nullity and may be attacked either directly or
collaterally, or may simply be ignored.” State v. Sams, 317 N.C.
230, 235, 345 S.E.2d 179, 182 (1986)(emphasis in original), citing
Manufacturing Co. v. Union, 20 N.C. App. 544, 202 S.E.2d 309, cert.
denied, 285 N.C. 234, 204 S.E.2d 24 (1974). Judge Doughton was
correct in granting summary judgment in the matter because Judge
Burke's order was a nullity and the statute of limitations was a
positive bar to the plaintiffs' claims.
Affirmed.
Judges ELMORE and GEER concur.
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