CHATEAU MERISIER v. LE MUEBLE ARTISANAL

• Decision Date: 03 April 2001
• Docket Number: No. COA00-360.,COA00-360.
• Citation: 544 S.E.2d 815,142 NC App. 684
• Parties: CHATEAU MERISIER, INC., Plaintiff, v. LE MUEBLE ARTISANAL GEKA, S.A., Dominique Mercier, and Gaston Maulin, Defendants.
• Court: North Carolina Court of Appeals

544 S.E.2d 815

142 NC App. 684

CHATEAU MERISIER, INC., Plaintiff, v. LE MUEBLE ARTISANAL GEKA, S.A., Dominique Mercier, and Gaston Maulin, Defendants.

No. COA00-360.

Court of Appeals of North Carolina.

April 3, 2001.

Richard M. Greene, Greensboro, for plaintiff-appellee.

Stephen E. Lawing, High Point, for defendant-appellant.

WALKER, Judge.

Plaintiff is engaged in importing and selling furniture to wholesalers and showrooms. Defendant GEKA is a French company which manufactures furniture in France and distributes its product in the United States. Plaintiff alleges GEKA terminated its distributorship agreement with plaintiff in order to avoid paying commissions on furniture sales for which plaintiff had solicited customers. On 12 February 1997, plaintiff filed a complaint which included claims for breach of contract, quantum meruit, unfair and deceptive trade practices and an accounting. Plaintiff has filed a voluntary dismissal as to defendants Mercier and Maulin.

During the course of discovery, plaintiff alleges that GEKA repeatedly failed to disclose information and documents requested in interrogatories and requests for the production of documents. Plaintiff filed a motion for sanctions on 10 September 1999. The findings of the trial court can be summarized as follows: Plaintiff filed its first set of interrogatories and first request for production of documents on 1 October 1997. GEKA was requested to provide information and documents relating to its sales to Masco Corporation, Beacon Hill, or any of their associates or subsidiaries. GEKA answered the interrogatories and provided the documents requested after a protective order was entered. However, no information regarding sales to Intro-Europe, a subsidiary of Masco Corporation and affiliate of Beacon Hill, was provided. Plaintiff notified GEKA that the documents provided were incomplete and gave GEKA two weeks to produce additional documents. On 8 October 1998, GEKA supplemented its answers; however, no information was provided concerning Intro-Europe.

Further, in April 1999, two officials of Beacon Hill admitted in depositions that GEKA had sold furniture to Intro Europe. Plaintiff then filed its second set of interrogatories and request for production of documents requesting specific information in regard to GEKA's sale of furniture to Intro-Europe. GEKA answered plaintiff's interrogatories on 25 August 1999 but failed to respond to plaintiff's request for production of documents. As a result of GEKA's failure to comply with discovery, the plaintiff's third motion for sanctions was granted in part and denied in part. The trial court ordered that GEKA's answer be stricken, that it pay attorney's fees in the amount of $1,970.00 and that a default judgment be entered in favor of plaintiff as to the issues of breach of contract and quantum meruit. However, the trial court denied plaintiff's motion for sanctions "as to all damage issues."

In its first assignment of error, GEKA contends the trial court lacked jurisdiction because it was not properly served with a summons. The original summons was issued on 12 February 1997, when the complaint was filed; however, the summons was never served and, on 22 July 1997, a second summons was issued and served on GEKA's registered agent. GEKA moved to dismiss for lack of jurisdiction which was denied by the trial court on 9 August 1999. GEKA asserts that plaintiff's failure to comply with the requirements of Rule 4(d) of the N.C. Rules of Civil Procedure rendered the summons invalid and thus did not confer jurisdiction over GEKA.

Service of a summons must be made "within 30 days after the date of the issuance of the summons." N.C.R. Civ.P. 4(c)(1999). If service is not completed within that time it becomes "dormant." Thereafter, the action may be revived or "continued in existence" by either securing an endorsement of the original summons or issuing an alias or pluries summons within ninety days. N.C.R. Civ. P. 4(d)(1999). If the summons is not served within thirty days nor revived within ninety days, the action is discontinued. N.C.R. Civ. P. 4(e)(1999); Shiloh Methodist Church v. Keever Heating & Cooling, 127 N.C.App. 619, 621, 492 S.E.2d 380, 382 (1997); County of Wayne v. Whitley, 72 N.C.App. 155, 323 S.E.2d 458 (1984). If an action is discontinued, a new summons may be issued; however, the action is deemed to have commenced on this later date. Shiloh at 622, 492 S.E.2d at 382. Nevertheless, GEKA contends that under this Court's ruling in Integon General Ins. Co. v. Martin, 217 N.C.App. 440, 490 S.E.2d 242 (1997), the plaintiff was required to seek an extension of the original summons. However, Integon is distinguishable. There, second, third and fourth summonses were issued, each within ninety days of the preceding summons. However, none of these summonses was indicated as alias or pluries summonses and each failed to reference the original summons. This Court held that these omissions broke the "chain of custody" required to continue the original action and that the service of the fourth summons had the "double effect of initiating a new action and discontinuing the original one." Integon at 441, 490 S.E.2d at 244.

In the case at bar, the original summons was issued on 12 February 1997 and was not served within thirty days. Thereafter, plaintiff did not seek an endorsement nor an alias or pluries summons within ninety days. Rather, plaintiff elected to issue a new...