1. Jurisdiction_lack of service raised in answer--not a general appearance_reassertion
of jurisdictional defense in subsequent motion_not required
The trial court did not err by granting defendant Honeycutt's motion to dismiss for
insufficient service and lack of personal jurisdiction where he was never served with a summons
and complaint, filed an answer that included the defenses of insufficient service and no personal
jurisdiction, and thereafter filed a motion to tax costs to plaintiff as a result of a prior voluntary
dismissal. Although plaintiff contends that the motion to tax costs was a general appearance,
defendant did not make any motion seeking affirmative relief before he filed his answer and the
answer properly included the defenses of insufficient service and no personal jurisdiction. A
defendant is not required to reassert his jurisdictional defenses in each subsequent motion.
2. Jurisdiction_discovery_not a general appearance_jurisdictional defenses previously
asserted
Participating in discovery does not constitute a general appearance; here, the defendant
had asserted his jurisdictional defenses in his first filed pleading.
3. Statutes of Limitation and Repose_raised in supplemental answer_after summons
had run
The trial court did not abuse its discretion by granting defendant Honeycutt's motion to
supplement his answer to assert the statute of limitations. Honeycutt was never served, all of the
defendants filed a collective answer before the statute of limitations ran, the last alias and pluries
summons directed to Honeycutt expired after the statute of limitations expired, and he filed this
motion.
4. Statutes of Limitation and Repose_expiration of summons_summary judgment
The trial court appropriately granted summary judgment for defendant Honeycutt, a high
school football coach, in an action that arose from the heatstroke death of one of his players.
Although a number of alias and pluries summonses were issued, all expired without service and
any subsequent action would be outside the statute of limitations.
STEELMAN, Judge.
Plaintiff Lynetta Draughon, the personal representative of the
Estate of Max Draughon, appeals from an order dismissing
plaintiff's claims against defendant Honeycutt with prejudice. For
the reasons discussed herein, we affirm.
Plaintiff's intestate was a football player at Triton High
School in Harnett County, North Carolina. He collapsed during
football practice on the morning of 8 August 1998 and died the
following day at UNC Memorial Hospital from complications due to
heatstroke. Defendant Honeycutt was the head football coach for
Triton at that time. A more detailed discussion of the facts of
the case can be found in this Court's earlier opinion, Draughon v.
Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732
(2003), aff'd, 358 N.C. 137, 591 S.E.2d 520 (2004). On 3 August
2000, plaintiff filed a wrongful death action. On 6 July 2001,
plaintiff voluntarily dismissed that action without prejudice.
That same day, plaintiff refiled her claim against Harnett County
Board of Education, Barry Honeycutt, Jackie Samuels, Stephen
Ausley, Jason Spell, Anthony Barbour, Perry Saenz, Don Wilson, Jr.,Raymond McCall, and Brian Strickland in their individual and
official capacities, seeking monetary damages for the wrongful
death of Max Draughon. Previously, this Court affirmed summary
judgment dismissing plaintiff's claims against defendants Stephen
Ausley, Raymond McCall, Jason Spell, and Don Wilson, Jr. Id. at
215, 580 S.E.2d at 737. This Court subsequently affirmed summary
judgment dismissing plaintiff's claims against defendant Brian
Strickland. Draughon v. Harnett Cty Bd. of Educ., 158 N.C. App.
705, 710, 582 S.E.2d 343, 346 (2003), aff'd, 358 N.C. 137, 591
S.E.2d 520 (2004).
This appeal pertains to the trial court's dismissal of all
plaintiff's claims against defendant Honeycutt. The trial court's
order dismissed plaintiff's complaint for insufficient process,
insufficient service of process, and lack of personal jurisdiction
under Rule 12(b)(2), 12(b)(4), and 12(b)(5); for failure to state
a claim upon which relief could be granted under Rule 12(b)(6) of
the Rules of Civil Procedure; as being barred by the statute of
limitations under Rule 12(c) and Rule 56; and for failure to
prosecute under Rule 41(b). The remaining facts of this case will
be discussed in the context of plaintiff's assignments of error.
We note that plaintiff does not appeal from any of the trial
court's findings of fact, and as such those findings are presumed
to be supported by competent evidence and are binding on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
[1] In plaintiff's first assignment of error she contends the
trial court erred in granting Honeycutt's motion to dismiss forinsufficient service of process and lack of personal jurisdiction.
We disagree.
In order for a court to obtain personal jurisdiction over a
defendant, a summons must be issued and service of process secured
by one of the statutorily specified methods. Grimsley v. Nelson,
342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996); N.C. Gen. Stat. § 1A-
1, Rule 4(j) (2003). If a party fails to obtain valid service of
process, “a court does not acquire personal jurisdiction over the
defendant and the action must be dismissed.” Bentley v. Watauga
Bldg. Supply, Inc., 145 N.C. App. 460, 462, 549 S.E.2d 924, 925
(2001).
Plaintiff does not contest that Honeycutt was never served
with a copy of the summons and complaint in this action. Rather,
plaintiff contends the filing of a Motion for Costs on 15 October
2001 by defendant Honeycutt constituted a general appearance by
Honeycutt, and precluded Honeycutt from asserting the defense of
lack of personal jurisdiction.
Since Honeycutt was never served with the summons and
complaint, the only way the trial court may exercise jurisdiction
over him is if he makes a general appearance in the case. N.C.
Gen. Stat. § 1-75.7(1) (2003). To preserve the defenses of
insufficiency of service, service of process, and lack of personal
jurisdiction, the defendant must assert them in either a motion
filed prior to any responsive pleading or include them in his
answer or other responsive pleading permitted by the Rules of Civil
Procedure. N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2003); Ryals v.Hall-Lane Moving and Storage Co., 122 N.C. App. 242, 247-48, 468
S.E.2d 600, 604, disc. review denied, 343 N.C. 514, 472 S.E.2d 19
(1996). If a defendant makes a general appearance in conjunction
with or after a responsive pleading challenging jurisdiction
pursuant to Rule 12(b), his right to challenge personal
jurisdiction is preserved. Id. at 247-48, 468 S.E.2d at 604; Lynch
v. Lynch, 302 N.C. 189, 197, 274 S.E.2d 212, 219, modified and
affirmed, 303 N.C. 367, 279 S.E.2d 840 (1981) (“[A] general
appearance will waive the right to challenge personal jurisdiction
only when it is made prior to the proper filing of a Rule 12(b)(2)
motion contesting jurisdiction over the person.”) (emphasis added).
Honeycutt obtained an extension of time to respond to
plaintiff's 6 July 2001 complaint. This did not constitute a
general appearance, as a defendant may move for and obtain an
extension of time within which to answer or otherwise plead,
without such action being considered a general appearance. N.C.
Gen. Stat. § 1-75.7(1) (2003). All of the defendants filed a
collective answer on 10 September 2001, which asserted a number of
defenses. The Third Defense stated:
Defendant[] Honeycutt, . . . move[s] the
Court, pursuant to G.S. § 1A-1, Rules
12(b)(2), 12(b)(4), and 12(b)(5), to dismiss
this action for insufficient process,
insufficient service of process, and lack of
personal jurisdiction, on the grounds that
Plaintiff has not served any of these
Defendants in a manner authorized by G.S. §1A-
1, Rule 4, or any other applicable law and
that Plaintiff has failed to prove any proper
service of any adequate process on these
Defendants at any time.
(emphasis added). There is no evidence in the record that
Honeycutt made any motion to the court seeking affirmative relief
before he and the other defendants filed their answer. The answer
properly included the defenses of insufficiency of service, service
of process, and lack of personal jurisdiction. Thus, defendant
Honeycutt properly preserved these issues for later resolution by
the trial court.
On 12 September 2001, Honeycutt and the other defendants filed
a motion to tax costs against plaintiff pursuant to Rule 41(b) of
the North Carolina Rules of Civil Procedure. This motion requested
that costs be taxed to plaintiff as a result of taking a voluntary
dismissal in the previous wrongful death action filed on 3 August
2000. Plaintiff contends this constituted a general appearance
since Honeycutt sought affirmative relief on matters unrelated to
the issue of jurisdiction over the person without restating his
challenge to the court's jurisdiction. The record clearly shows
that Honeycutt raised the issues of insufficiency of process,
service of process, and lack of personal jurisdiction prior to the
filing of the motion for costs. As noted above, this preserved
those issues. Furthermore, nowhere in our case law do we require
a defendant to reassert his jurisdictional defenses in each
subsequent motion he files. See Ryals, 122 N.C. App. at 247, 468
S.E.2d at 604 . By asserting his jurisdictional defenses in his
first filed pleading, Honeycutt “fulfill[ed] his obligation to
inform the court and his opponent of possible jurisdictional
defects.” Id. at 248, 468 S.E.2d at 604. Nor does it appear inthe record that Honeycutt ever attempted to withdraw his
jurisdictional or service defenses. See Hall v. Hall, 65 N.C. App.
797, 800, 310 S.E.2d 378, 381 (1984). Thus, Honeycutt's right to
challenge the court's jurisdiction was preserved and the filing of
the motion for costs did not waive that right.
[2] Plaintiff further contends that Honeycutt engaged in
extensive discovery, which constituted a general appearance or a
waiver of the defense of lack of personal jurisdiction. This is
incorrect. This Court has held that it does not constitute a
general appearance for a defendant to file an answer or participate
in discovery. Ryals, 122 N.C. App. at 247, 468 S.E.2d at 604.
This assignment of error is without merit.
[3] In plaintiff's second assignment of error she contends the
trial court erred in granting Honeycutt's motion for summary
judgment which dismissed plaintiff's claims against Honeycutt based
upon the statute of limitations. Our analysis of this issue also
includes plaintiff's fourth assignment of error, in which she
asserts it was error for the trial court to grant Honeycutt's
motion to supplement his answer to assert the statute of
limitations as an affirmative defense.
Rule 15(d) of the Rules of Civil Procedure provides:
Upon motion of a party the court may, upon
reasonable notice and upon such terms as are
just, permit him to serve a supplemental
pleading setting forth transactions or
occurrences or events which may have happened
since the date of the pleading sought to be
supplemented, . . . .
N.C. Gen. Stat. § 1A-1, Rule 15(d) (2003). Motions to allow
supplemental pleadings should ordinarily be granted because by
definition they encompass matters that arose after the date of the
original pleading, unless a substantial injustice would result to
the opposing party. vanDooren v. vanDooren, 37 N.C. App. 333,
337-38, 246 S.E.2d 20, 23-24, cert. denied, 295 N.C. 653, 248
S.E.2d 258 (1978). See also 1 G. Gray Wilson, North Carolina Civil
Procedure § 15-13, at 315-17 (2d ed. 1995).
In this case, at the time Honeycutt filed his answer, on 10
September 2001, the summons directed to Honeycutt had not expired.
However, the summons did subsequently expire on 22 November 2002.
On 3 February 2003, Honeycutt moved the court pursuant to Rule
15(d) of the Rules of Civil Procedure to supplement his answer to
assert the expiration of the summons and that plaintiff's claims
against Honeycutt were barred by the applicable statute of
limitations. The trial court found and the record confirms that
the statute of limitations had not run at the time of the filing of
Honeycutt's answer and that Honeycutt could not have properly
asserted that defense at that time. Upon the expiration of the
summons directed to Honeycutt, it was proper for him to move to
supplement his pleadings. We find the decision of the trial court
granting Honeycutt's motion to supplement his pleadings was a
reasoned one, and the granting of the motion was not an abuse of
discretion.
[4] It was also appropriate for the trial court to grant
Honeycutt's motion for summary judgment. Rule 4 of the Rules ofCivil Procedure provides for service of process. N.C. Gen. Stat.
§ 1A-1, Rule 4 (2003). This rule requires that a summons be served
within sixty days from the date it was issued. N.C. Gen. Stat. §
1A-1, Rule 4(c). If the plaintiff fails to effectuate service of
the summons within this time period, Rule 4(d) permits the action
to be continued. The continuance will relate back to the date the
original summons was issued, if the summons is endorsed by the
clerk or if an alias or pluries summons is issued within ninety
days of the issuance of the last preceding summons. Id. The
endorsement or the alias or pluries summons must be served within
sixty days of issuance. Id. However, when neither an endorsement
or an alias or pluries summon is issued within this ninety day
period, the action is discontinued as to any defendant who was not
served within the allotted time. N.C. Gen. Stat. § 1A-1, Rule
4(e). A party may still obtain an endorsement or alias or pluries
summons, but it will not relate back to the date of the prior
summons; issuance of the new summons commences an entirely new
action. Id.; Lemons v. Old Hickory Council, Boy Scouts, Inc., 322
N.C. 271, 275, 367 S.E.2d 655, 657 (1988). See also Johnson v.
City of Raleigh, 98 N.C. App. 147, 148-49, 389 S.E.2d 849, 851,
disc. review denied, 327 N.C. 140, 394 S.E.2d 176 (1990).
The trial court found as facts: (1) the original summons
directed to Honeycutt in this action was issued on 6 July 2001; (2)
plaintiff procured a number of alias and pluries summonses directed
to Honeycutt in this action, the last being issued on 23 August
2002; (3) Honeycutt included his jurisdictional and serviceobjections in his answer; (4) no alias and pluries summons were
issued after 23 August 2002; and (5) no return of service has been
filed with the court showing Honeycutt had ever been served with a
copy of the summons or complaint in this action. Thus, when
plaintiff failed to have this action continued as to defendant
Honeycutt through endorsement or issuance of alias or pluries
summons before the expiration of her last summons on 22 November
2002, this action was discontinued as to Honeycutt on that date.
See N.C. Gen. Stat. § 1A-1, Rule 4(e); Lemons, 322 N.C. at 275, 367
S.E.2d at 657; Russ v. Hedgecock, 161 N.C. App. 334, 336-37, 588
S.E.2d 69, 70-71 (2003), disc. review denied, 342 N.C. 896, 467
S.E.2d 905 (2004).
The statute of limitations for plaintiff's wrongful death
action expired two years after the date of the death of plaintiff's
intestate on 8 August 2000. N.C. Gen. Stat. § 1-53(4) (2003).
When the final summons in the present action expired on 22 November
2002, the present action was discontinued and any subsequent
endorsement of the summons would have constituted a new action,
commenced after the expiration of the statute of limitations.
Plaintiff contends it was improper for the court to grant
summary judgment in favor of Honeycutt because he had made a
general appearance prior to the expiration of the final alias and
pluries summons on 22 November 2002, and thus she did not need to
effectuate service on Honeycutt. This argument is identical to the
one asserted by plaintiff in her first assignment of error. As we
stated above, Honeycutt preserved his right to challenge thecourt's jurisdiction since he filed his responsive pleading
challenging jurisdiction before he made a general appearance and
thus, the trial court never obtained jurisdiction over him. Since
plaintiff neglected to effectuate proper service on Honeycutt, the
trial court properly found that plaintiff's action for wrongful
death against Honeycutt was barred by the applicable statute of
limitations. It was thus proper for the trial court to grant
Honeycutt's motion for summary judgment. These assignments of
error are without merit.
Since we have affirmed the trial court's grant of summary
judgment in favor of defendant Honeycutt based upon the statute of
limitations, it is unnecessary for us to address plaintiff's third
assignment of error.
AFFIRMED.
Judges CALABRIA and ELMORE concur.
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