Wright v Kraus, (03-926) 05/04/2004

Appeal by plaintiff from order entered 9 April 2003 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 April 2004.

Lawrence P. Margolis for plaintiff-appellant.

Golding, Holden & Pope, L.L.P., by R. Michael Chandler and Lisa F. Schwanz, for defendant-appellee.

HUNTER, Judge.

    On 25 July 1998, Ronda F. Wright (“plaintiff”) was operating a postal truck owned and operated by the United States Postal Service when she was rear ended by a vehicle operated by Corey A. Kraus (“defendant”). Plaintiff filed a complaint on 24 July 2001 to recover damages for personal injuries due to defendant's alleged negligence. A civil summons was issued on 25 July 2001 and returned unserved on 20 August 2001. An alias and pluries summons was issued against defendant on 10 September 2002. A second alias and pluries summons was issued against defendant on 18 October 2002. On 22 November 2002, plaintiff's attorney filed an affidavitstating that defendant received a copy of the second alias and pluries summons on 2 November 2002.
    On 14 November 2002, defendant answered the complaint and moved the court for dismissal based on plaintiff's failure to comply with the three year statute of limitations. On 9 April 2003, the trial court dismissed the lawsuit. Plaintiff appeals.
    Plaintiff argues that the trial court erred in dismissing the complaint because defendant failed to contest personal jurisdiction, sufficiency of process or service of process when answering the complaint. Plaintiff contends that because defendant made a general appearance without raising these defenses, the defenses were waived and eliminated any purported defect in service of process. Thus, in effect, plaintiff argues that by making a general appearance, defendant has admitted the statute of limitations does not bar plaintiff's claim. We disagree.
    Under Rule 4(c) of the North Carolina Rules of Civil Procedure, in effect on 24 July 2001, the date this lawsuit was filed, required that a summons had to be served within 30 days of its issuance. See N.C. Gen. Stat. § 1A-1, Rule 4(c) (2001). Although we note that Rule 4(c) was amended by the legislature in August 2001 to now require a summons be served within 60 days of its issuance, that amendment only applies to cases filed on or after 1 October 2001, see 2001 N.C. Sess. Laws 379, thus the current rule as amended does not apply to the present case. Under the version of Rule 4(c) in effect on the date this action was filed, if a summons is not served within 30 days [now 60 days], itloses its vitality and becomes functus officio, and service obtained thereafter does not confer jurisdiction on the trial court over the defendant. See Dozier v. Crandall, 105 N.C. App. 74, 76, 411 S.E.2d 635, 636 (1992). “However, although a summons not served within 30 days [now 60 days] becomes dormant and unserveable, under Rule 4(c) it is not invalidated nor is the action discontinued.” Id. (citation omitted).
        “If the summons is not served within thirty days [now sixty days], Rule 4(d) permits the action to be continued, so as to relate back to the date of issue of the original summons, by an endorsement from the clerk or issuance of an alias or pluries summons within ninety days of the issuance of the last preceding summons. Any such alias or pluries summons, like the original summons, must be served within thirty days [now sixty days] of issuance.”

Id. at 76, 411 S.E.2d at 636-37 (quoting Lemons v. Old Hickory Council, 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988)).
    Here, the alias and pluries summons was not issued until eleven months after the issuance of the preceding summons. Pursuant to Rule 4(e), when an alias and pluries summons is issued after the ninety-day time limit for relating back to the original summons, the action is deemed to have commenced on the date that the alias and pluries summons was issued. Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638. Thus, plaintiff's action is deemed to have commenced 10 September 2002, the date the alias and pluries summons was issued in this case, which was more than three years from the 25 July 1998 date on which the cause of action arose. See N.C. Gen. Stat. § 1-52 (2003) (three year statute of limitations forpersonal injury claims). Accordingly, we conclude that plaintiff's action is barred by the statute of limitations, and the trial court correctly granted defendant's motion to dismiss.
    Affirmed.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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