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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1717


Filed: 2 October 2007


    v.                        Gaston County
                            No. 06 CVS 3145

    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- appellant.

    Parker Poe Adams & Bernstein, LLP, by John W. Francisco, for defendant-appellee.

    BRYANT, Judge.

    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, as follows:
        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 dismissal.

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 without merit.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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