An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 15 November 2005
PAUL JEFFREY MANESS,
v. Iredell County
No. 04 CVS 00810
WESTFALIA-SURGE, INC. and
MOORES DAIRY EQUIPMENT, INC.,
Appeal by plaintiff from orders entered 8 November 2004 and 15
November 2004 by Judge Kimberly S. Taylor in Iredell County
Superior Court. Heard in the Court of Appeals 10 November 2005.
Hamilton Fay Moon Stephens Steele & Martin, PLLC, by David G.
Redding, for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J.
Garofalo, for defendant-appellee Westfalia-Surge, Inc.
Helms Mulliss & Wicker, L.L.P., by Bradley R. Kutrow and Brian
A. Kahn, for defendant-appellee Moores Dairy Equipment, Inc.
Paul Jeffrey Maness (plaintiff) appeals from orders entered
8 November and 15 November 2004 dismissing his claims against
Westfalia-Surge, Inc. and Moores Dairy Equipment, Inc.
(collectively, defendants). We affirm.
Plaintiff initially filed a lawsuit against defendants on 20
November 2001 claiming negligence, fraud, and unfair and deceptive
trade practices for damages sustained as a result of the purchase
and installation of a milking system. Plaintiff voluntarilydismissed the action without prejudice pursuant to Rule 41(a) of
the North Carolina Rules of Civil Procedure on 1 April 2003. On 31
March 2004, within one year of the dismissal of the prior action,
plaintiff commenced the present action against defendants by filing
a new civil summons and complaint. Plaintiff alleged breach of
contract, breach of express warranty, and negligence claims.
Neither defendant was served with the 31 March 2004 summons. An
alias and pluries summons was issued on 2 July 2004, ninety-three
days after the filing of the original summons. Another alias and
pluries summons was issued on 30 July 2004. Defendants were served
via certified mail on 4 August and 6 August 2004, respectively.
Defendants separately filed motions to dismiss plaintiff's
action pursuant to Rule 12(b)(4)(5), Rule 12(b)(6), and Rule
41(a)(1) of the North Carolina Rules of Civil Procedure.
Defendants asserted that plaintiff's action should be dismissed
because: (1) insufficient process; (2) insufficient service of
process; (3) the action was barred by the applicable statute of
limitations; and (4) plaintiff did not reinstitute a new action
within one year following the voluntary dismissal. By orders
entered 8 November and 15 November 2004, the trial court dismissed
plaintiff's action against both defendants. Plaintiff appeals.
The sole issue on appeal is whether the trial erred by
dismissing plaintiff's claims against defendants.
III. Alias and Pluries Summons
Plaintiff argues the trial court erred in dismissing hisaction. Plaintiff acknowledges this Court's holding in Dozier v.
Crandall, 105 N.C. App. 74, 411 S.E.2d 635, disc. rev. denied, 332
N.C. 480, 420 S.E.2d 826 (1992), but urges this Court to overrule
or abrogate its earlier decisions to relieve plaintiff from a harsh
result and allow him to pursue his claims.
In Dozier, the plaintiff filed a lawsuit before the statute of
limitations on its claim against the defendant expired but did not
obtain service of the original summons within thirty days as
required by Rule 4(c) and did not obtain issuance of an alias
summons within the ninety days after issuance of the original
summons as required by Rule 4(d). 105 N.C. App. at 76, 411 S.E.2d
at 637. The trial court granted the defendant judgment on the
pleadings on the grounds the plaintiff's lawsuit was barred by the
statute of limitations. Id. On appeal, this Court affirmed the
judgment of the trial court holding once the summons expired
because of the passage of ninety days, the action was discontinued
under Rule 4(e). Id. at 78, 411 S.E.2d at 638; see also Russ v.
Hedgecock, 161 N.C. App. 334, 588 S.E.2d 69 (2003), disc. rev.
denied, 358 N.C. 545, 599 S.E.2d 407 (2004).
Here, plaintiff's original summons issued on 31 March 2004
went unserved. Plaintiff had ninety days from 31 March 2004, or 29
June 2004, to have the action continued through endorsement upon
the original summons or issuance of an alias and pluries summons
under Rule 4(d). Plaintiff failed to obtain an endorsement or an
alias and pluries summons on defendants within the ninety day time
period. The issuance of the alias and pluries summons on 2 July2004 resulted in the commencement of an entirely new action from
the date the summons was issued, which was more than one year after
the date on which plaintiff took a voluntary dismissal. Because
discontinuance of the action is mandated under this Court's
decisions in Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638, and
Russ, 161 N.C. App. at 336, 558 S.E.2d at 70, the trial court
properly dismissed plaintiff's action against defendants. This
assignment of error is overruled.
The trial court did not err in dismissing plaintiff's action
against defendants due to plaintiff's failure to obtain an
endorsement or an alias and pluries summons on defendants within
the required ninety day time limit. The orders dismissing
plaintiff's action are affirmed. See In the Matter of Appeal from
, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (Where
a panel of the Court of Appeals has decided the same issue, albeit
in a different case, a subsequent panel of the same court is bound
by that precedent, unless it has been overturned by a higher
court. (citations omitted)).
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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