NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
JEFFREY W. CAVENDER,
v. Gaston County
No. 06 CVS 3145
DUKE POWER COMPANY, LLC,
Appeal by plaintiff from an order entered 20 September 2006 by
Judge Clarence E. Horton, Jr., in Gaston County Superior Court.
Heard in the Court of Appeals 24 September 2007.
Karen Zaman & Associates, by Karen Zaman, for plaintiff-
Parker Poe Adams & Bernstein, LLP, by John W. Francisco, for
Jeffrey W. Cavender (plaintiff) appeals from the trial court's
order dismissing his civil action. On 27 August 2001, plaintiff,
while working as a television cable installer, was injured after
coming into contact with a power line. On 26 August 2004,
plaintiff filed an action for personal injury against Duke Power
Company, LLC (defendant) one day before the expiration of the
applicable three-year statute of limitations. On 12 July 2005, the
trial court involuntarily dismissed plaintiff's action on the
grounds that plaintiff had failed to prosecute the lawsuit by
properly or timely serving a copy of the original or subsequent
summonses and complaint upon defendant as required by Rule 4 of theNorth Carolina Rules of Civil Procedure. While the trial court's
order dismissing the action stated that the dismissal was without
prejudice, the order did not provide for any extra time for
refiling the action as permitted by Rule 41(b) of the North
Carolina Rules of Civil Procedure.
One year later, on 11 July 2006, plaintiff filed a new civil
action alleging the same claims as in the original action.
Defendant moved to dismiss the new complaint on the grounds that
the prior order dismissing the action without prejudice did not
contain a savings provision as specified by Rule 41(b) and that
plaintiff's action was time-barred by the applicable statute of
limitations. On 20 September 2006, the trial court allowed
defendant's motion to dismiss and ordered that the action
be dismissed with prejudice. Plaintiff now appeals this dismissal.
Plaintiff contends that the trial court erroneously dismissed
his new civil complaint on the grounds that the statute of
limitations had expired. He asserts that the 12 July 2005 order
dismissing his first action without prejudice entitled him to an
additional year within which to refile his complaint. The basis of
plaintiff's argument is his interpretation of North Carolina Rule
of Civil Procedure 41(b). Rule 41(b) provides, in pertinent part,
Involuntary Dismissal; Effect Thereof. . . .
Unless the court in its order for dismissal
otherwise specifies, a dismissal under this
section and any dismissal not provided for in
this rule, other than a dismissal for lack of
jurisdiction, for improper venue, or forfailure to join a necessary party, operates as
an adjudication upon the merits. If the court
specifies that the dismissal of an action
commenced within the time prescribed therefor,
or any claim therein, is without prejudice, it
may also specify in its order that a new
action based on the same claim may be
commenced within one year or less after such
N.C. Gen Stat. § 1A-1, Rule 41(b) (2005) (emphasis added).
Plaintiff contends the italicized language above entitles him to an
automatic one-year period from the date of the dismissal within
which to refile his action where the trial court fails to expressly
provide for any additional time. Despite plaintiff's lengthy
argument in support of his interpretation of Rule 41(b) and his
assertion that this case presents an issue of first impression,
plaintiff's argument has been both addressed and clearly rejected
by this Court.
In 84 Lumber Co. v. Barkley
, this Court specifically held that
where the order dismissing a plaintiff's action without prejudice
contain[ed] no specification whatsoever with regard to the time in
which plaintiff may commence a new action based on the same claim,
the plaintiff must refile within the applicable statute of
limitations. 84 Lumber Co. v. Barkley
, 120 N.C. App. 271, 272, 461
S.E.2d 780, 782 (1995). Further, we have held that to benefit from
the savings provision of Rule 41(b), it is the [plaintiff's]
responsibility to convince the . . . courts to include in the order
or opinion a statement specifying that plaintiff had an additional
year to refile. Clark v. Velsicol Chem. Corp.
, 110 N.C. App. 803,
809, 431 S.E.2d 227, 230 (1993), aff'd per curiam
, 336 N.C. 599,444 S.E.2d 223 (1994). Thus, absent a specific provision granting
a plaintiff additional time, the plaintiff must refile within the
applicable statutory period. See also Harter v. Vernon
, 139 N.C.
App. 85, 89, 532 S.E.2d 836, 839 (specifying that where a civil
action had been dismissed without prejudice, pursuant to well
established case law plaintiffs would not be entitled to
additional time to refile where the order did not so specify),
appeal dismissed and disc. review denied
, 353 N.C. 263, 546 S.E.2d
97 (2000), cert. denied
, 532 U.S. 1022, 149 L. Ed. 2d 757 (2001);
Jarman v. Washington
, 93 N.C. App. 76, 78, 376 S.E.2d 252, 253
(1989) (holding that where no additional time for refiling is
specified in the order, a dismissal under Rule 41(b) does not
extend any applicable statute of limitation).
In light of this well-established case law, we conclude that
plaintiff's argument that he was entitled to an extension of the
applicable statute of limitations for refiling his action is
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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