Opinion
No. COA14–945.
04-21-2015
Jack FOWLER and Janice Frohman, Individually and as Co–Trustees of a Protective Trust by and on behalf of Mildred and Buford Fowler, Plaintiffs, v. Norman C. RIDDLE and Norman C. Riddle, P.A., Defendants.
Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Paul I. Klein, for plaintiffs. Roberts & Stevens, P.A., by Wyatt S. Stevens and Ann–Patton Hornthal, for defendants.
Cranford, Buckley, Schultze, Tomchin, Allen & Buie, P.A., by Paul I. Klein, for plaintiffs.
Roberts & Stevens, P.A., by Wyatt S. Stevens and Ann–Patton Hornthal, for defendants.
McCULLOUGH, Judge.
Plaintiffs Jack Fowler and Janice Frohman, individually and as co-trustees of a protective trust by and on behalf of Mildred and Buford Fowler (decedents), appeal from an order of the trial court, dismissing their action against defendants Norman C. Riddle and Norman C. Riddle, P.A. Based on the reasons stated herein, we affirm the order of the trial court.
I. Background
Plaintiffs Jack Fowler and Janice Frohman, individually and as co-trustees of a protective trust by and on behalf of Mildred and Buford Neal (decedents), re-filed a complaint against defendants Norman C. Riddle and Norman C. Riddle, P.A., on 8 January 2014, following a voluntary dismissal without prejudice of the underlying action on 3 January 2014.
The 8 January 2014 complaint alleged that plaintiffs were co-trustees, as well as beneficiaries, of a trust. Decedents were clients of defendants. Defendant Riddle was an attorney and the protective trust was prepared by defendants. Plaintiffs alleged that because defendants provided professional services negligently, plaintiffs had been deprived of all their benefits under the trust.
On 21 January 2014, the trial court filed an “Order Taxing Costs Against Plaintiffs.” Defendants were entitled to recover $3,214.71 from plaintiffs.
On 4 February 2014, defendants filed a “Motion to Compel Payment of Costs and to Stay.” Defendants moved the trial court for an order compelling plaintiffs to comply with the 21 January 2014 order and staying the 8 January 2014 action until costs had been paid.
On 11 February 2014, defendants filed a “Motion to Dismiss and Answer.” Defendants moved to dismiss plaintiff's complaint pursuance to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and N.C. Gen.Stat. § 1–15(c). Defendants argued that under the statute of limitations and repose, plaintiffs' claims against defendants were barred because they were not brought within three (3) years of the execution of the trust or within one (1) year after they discovered the alleged injury or damage.
On 17 February 2014, an “Order Compelling Payment of Costs and Staying Action” was filed. Plaintiffs were ordered to pay the costs incurred in the previous action within thirty (30) days and the trial court stayed the 8 January 2014 action until those costs were paid.
On 21 March 2014, defendants filed a “Motion to Dismiss for Failure to Pay Costs.” Defendants alleged that plaintiffs did not make payment to the clerk of court until 20 March 2014, thirty-one (31) days after entry of the 17 February 2014 order. Pursuant to Rule 41(d) of the North Carolina Rules of Civil Procedure, defendants argued that plaintiffs' action should be dismissed.
On 23 April 2014, the trial court entered an “Order Dismissing Action.” The trial court dismissed plaintiffs' 8 January 2014 action with prejudice pursuant to Rule 41(d) for failure to pay costs incurred within thirty (30) days and for failure to comply with the trial court's 17 February 2014 order.
On 21 May 2014, plaintiffs appealed from the 23 April 2014 order.
II. Discussion
On appeal, plaintiffs argue that the trial court erred by dismissing their 8 January 2014 action pursuant to Rule 41(d) of the North Carolina Rules of Civil Procedure because (A) they complied with the 17 February 2014 order; (B) neither Rule 41(d) or the 17 February 2014 order mandated dismissal; and, (C) the trial court did not consider lesser sanctions.
A.
In their first argument, plaintiffs contend they complied with the 17 February 2014 order when they mailed their payment of costs for voluntarily dismissing their previous action within thirty (30) days of the order. Specifically, plaintiffs argue that the trial court erred in its interpretation of Rule 41(d) by determining that the “critical event” is the mailing rather than the receipt of costs within thirty (30) days. We disagree.
“An alleged error in statutory interpretation is an error of law, and thus our standard of review for this question is de novo.” Armstrong v. N.C. State Bd. Of Dental Examiners, 129 N.C.App. 153, 156, 499 S.E.2d 462, 466 (1998) (citations omitted). “In our review, we must give a statute its plain meaning where the language of the statute is clear; however, where a statute is ambiguous or unclear as to its meaning, we must interpret the statute to give effect to the legislative intent.” N.C. Dep't of Revenue v. Hudson,196 N.C.App. 765, 767, 675 S.E.2d 709, 711 (2009) (citation omitted).
Rule 41(d) provides as follows:
Costs.—A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 daysand shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.
N.C. Gen.Stat. § 1A–1, Rule 41(d) (2015) (emphasis added).
Here, the 17 February 2014 order provided that
Plaintiffs shall pay to the Clerk of Court the sum of $3,214.71 in full satisfaction of the January 21, 2014 Order entered in the underlying action. This action shall be stayed until Plaintiffs make that payment. If Plaintiffs fail to make that payment within thirty (30) days of the date of this Order, this action will be subject to further order of this Court, including dismissal.
The record indicates that on 18 March 2014, plaintiffs cut a check for $3,214.71 made payable to the Clerk of Superior Court of Buncombe County. On the same date, the check and a letter from plaintiffs' counsel were mailed to the Clerk of Superior Court of Buncombe County. An affidavit of Kathryn Hansen, the Deputy Clerk of Buncombe County Superior Court, stated that on 20 March 2014, she received a letter and envelope from plaintiffs' counsel with the time stamp of 20 March 2014 at 11:50 a.m., thirty-one (31) days after entry of the 17 February 2014 order. Enclosed was a check in the amount of $3,214.71 from plaintiffs' counsel. In the 23 April 2014 order, the trial court held that plaintiffs had failed to pay the costs within thirty (30) days of the 17 February 2014 order.
Plaintiffs fail to cite to any direct authority for their proposition that mailing payment to the clerk of court within thirty (30) days, rather than receipt by the clerk of court, satisfies their obligation under Rule 41(d). Instead, plaintiffs attempt to analogize Rule 41(d) to provisions of the Workers' Compensation Act, particularly N.C. Gen.Stat. § 97–18(g). Plaintiffs cite to two cases for their argument: Felmet v. Duke Power Company, Inc., 131 N.C.App. 87, 504 S.E.2d 815 (1998) and Morrison v. Public Service Company of North Carolina, Inc., 182 N.C.App. 707, 643 S.E.2d 58 (2007).
Felmetinvolves N.C. Gen.Stat. § 97–18(g) which imposes a ten percent (10%) late payment penalty “upon any party that fails to pay benefits within fourteen days after they become due.” Felmet, 131 N.C.App. at 89, 504 S.E.2d at 816. The claimant in Felmet received the employer's settlement check within twenty-seven (27) days after the Deputy Commissioner faxed his order to the employer. Id.at 88, 504 S.E.2d at 815. Our Court held that because the employer had thirty-nine (39) days to make the settlement payment to the claimant, the employer was not subject to the ten percent (10%) penalty. Id.at 91–92, 504 S.E.2d at 817. The issue before our Court in Felmetdid not involve whether the receipt of payment or mailing of payment was critical in determining if the parties had met the statutory deadline. Therefore, plaintiffs' reliance on Felmetis misplaced.
In Morrison,the parties stipulated that the defendants would make a workers' compensation settlement payment to the plaintiff within a twenty-four (24) day period that expired on 1 June 2014. Morrison, 182 N.C.App. at 708, 643 S.E.2d at 60. The defendants mailed two checks to plaintiff's counsel on 1 June 2004 and the checks were received on 2 June 2004 and 3 June 2004, respectively. Id.Because the plaintiff did not receive the settlement payment by 1 June 2014, the plaintiff sought a ten percent (10%) late fee pursuant to N.C. Gen.Stat. § 97–18. Id.Our Court noted that combining N.C. Gen.Stat. § 97–18(e), which stated that the first installment of compensation “shall become due 10 days from the day following expiration of the time for appeal from the award,” and § 97–18(g), which stated that “[i]f any installment of compensation is not paid within 14 days after it becomes due, there shall be added” a ten percent (10%) penalty, resulted in a requirement that a payment of a compromise settlement must be made within twenty-four (24) days to avoid imposition of a late penalty. Id.at 709–10, 643 S.E.2d at 61. Based on the holding in Carroll v. Living Centers Southeast, Inc., 157 N.C.App. 116, 577 S.E.2d 925 (2003), which used the terms “tendered” and “made” interchangeably when referring to when a payment made pursuant to a compromise settlement agreement must be “made” to avoid being subject to a late penalty, our Court held that “payment pursuant to a compromise settlement agreement must be tendered within twenty-four days to avoid a late payment penalty.” Id.at 710, 577 S.E.2d 925, 643 S.E.2d at 61. Our Court “decline[d] to provide a comprehensive set of circumstances by which payment is tendered pursuant to the late payment provision” and stated that “tendering payment [ ] may include depositing the payment, properly addressed to the payee, with the United States Postal Service[.]”Id.at 710–11, 643 S.E.2d at 61–62. Because the defendants mailed the checks on 1 June 2004, our Court held that they had “tendered or made payment within the twenty-four day period” and were not subject to the imposition of a late payment penalty. Id.at 714, 643 S.E.2d 58, 643 S.E.2d at 63. Further, the MorrisonCourt noted that their holding was in accord with the plain meaning of the statutory language and legislative intent of the statutory provision. Id.at 711, 643 S.E.2d at 62. The statute used the word “paid,” which centered around the verb to “give,” and to “give” means to deliver, tender, offer. Id.
Unlike in Morrisonwhere the parties stipulated to the due date of the settlement payment, in the present case, the trial court entered an order requiring plaintiffs to make payment within thirty (30) days based on Rule 41(d). Payment in Morrisonwas due to the plaintiff while the payment here was due to the Clerk of Court. In addition, the plain language of the applicable statute in Morrisonused the term “paid” while in the current case, the plain language term of “payment” is critical.
As previously stated, “[s]tatutory interpretation properly begins with an examination of the plain words of the statute, because [t]he legislative purpose of a statute is first ascertained by examining the statute's plain language.” Wind v. City of Gastonia,––– N.C.App. ––––, ––––, 738 S.E.2d 780, 784 (2013) (citations and quotation marks omitted). The plain language of Rule 41(d) requires “payment of such costs by the plaintiff within 30 days.” We note that N.C. Gen.Stat. § 1A–1, Rule 41 does not define “payment.” “Nothing else appearing, the Legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning. In the absence of a contextual definition, courts may look to dictionaries to determine the ordinary meaning of words within a statute.” Perkins v. Arkansas Trucking Servs., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (citations omitted).
Black's Law Dictionary defines “payment” as
1. Performance of an obligation, usu. by the delivery of money. • Performance may occur by delivery and acceptance of things other than money, but there is a payment only if money or other valuable things are given and accepted in partial or full discharge of an obligation. 2. The money or other valuable thing so delivered in satisfaction of an obligation.
Black's Law Dictionary 1150 (7th ed.1999). Thus, according to the ordinary meaning of the term “payment,” a plaintiff who voluntarily dismisses an action or claim must perform by delivering money, specifically the costs of the action, within thirty (30) days. “Payment” only occurs if the costs are “given and accepted” in full discharge of an obligation. Because plaintiffs failed to deliver the costs of the voluntarily dismissed action to defendants within thirty (30) days of the 17 February 2014 order, we affirm the 23 April 2014 order of the trial court dismissing plaintiffs' 8 January 2014 action.
B.
In their second argument, plaintiffs assert that neither Rule 41(d) nor the trial court's 17 February 2014 order mandated dismissal of plaintiffs' 8 January 2014 action. We disagree.
The pertinent part of Rule 41(d) states that
[i]f a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.
N.C. Gen.Stat. § 1A–1, Rule 41(d) (emphasis added).
It has been previously held that “[t]he language of Rule 41(d) constitutes a mandatory directive to the trial court.” Sims v. Oakwood Trailer Sales Corp., 18 N.C.App. 726, 728, 198 S.E.2d 73, 75 (1973) (citation omitted); see Sanford v. Starlite Disco, Inc., 66 N.C.App. 470, 471–72, 311 S.E.2d 67, 68 (1984). The trial court was mandated to dismiss the present action since there was no payment of costs taxed in the first action within thirty (30) days of the 17 February 2014 order. In addition, we note that the trial court's 17 February 2014 “Order Compelling Payment of Costs and Staying Action” specifically stated that “[i]f Plaintiffs fail to make that payment within thirty (30) days of the date of this Order, this action will be subject to further order of this Court, including dismissal.” Based on the foregoing, we reject plaintiffs' arguments.
C.
In their last argument on appeal, plaintiffs argue that the trial court erred by failing to consider lesser sanctions than dismissal.
Plaintiffs fail to cite to any authority to support their contention. As discussed above, the language of Rule 41(d) imposed upon the trial court, the mandatory directive to dismiss plaintiffs' 8 January 2014 action. Rule 41(d) provided only one sanction, dismissal. The trial court was not required to consider lesser sanctions according to the language of Rule 41(d). Accordingly, plaintiffs' argument fails.
III. Conclusion
We affirm the 23 April 2014 order of the trial court, dismissing plaintiffs' 8 January 2014 action with prejudice in accordance with Rule 41(d) of the North Carolina Rules of Civil Procedure.
AFFIRMED.
Chief Judge MCGEE and Judge CALABRIA concur.
Report per Rule 30(e).
Opinion
Appeal by plaintiffs from order entered 23 April 2014 by Judge Gary Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals 5 January 2015.