Opinion
No. COA05-400
Filed 15 November 2005 This case not for publication
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.
Iredell County No. 04 CVS 00810
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.
I. Background
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 voluntarily dismissed 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.
II. Issue
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 his action. 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 2003 went unserved. Plaintiff had ninety days from 31 March 2003, or 29 June 2003, 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 July 2003 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.
IV. Conclusion
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 Civil Penalty, 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)).
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).