Estrada v. Burnham, 338PA85

• Court: North Carolina Supreme Court
• Writing for the Court: MEYER
• Citation: Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (N.C. 1986)
• Decision Date: 02 April 1986
• Docket Number: No. 338PA85,338PA85
• Parties: Michael Anthony ESTRADA v. Steven J. BURNHAM.

Page 538

341 S.E.2d 538

316 N.C. 318

Michael Anthony ESTRADA v. Steven J. BURNHAM.

No. 338PA85.

Supreme Court of North Carolina.

April 2, 1986.

McCain & Essen by Grover C. McCain, Jr. and Jeff Erick Essen, Chapel Hill, for plaintiff-appellee.

Yates, Fleishman, McLamb & Weyher by Joseph W. Yates, III and Barbara B. Weyher, Raleigh, for defendant-appellant.

MEYER, Justice.

Complications arising from surgery to repair a bullet wound in plaintiff's leg resulted in his undergoing a lengthy embolectomy at North Carolina Memorial Hospital. The operation lasted from 6:00 p.m. on 18 June 1979 until 10:00 a.m. the next morning, and was performed by John R. Miles, M.D., a Fellow in the Vascular Surgery Department. During the operation, Dr. Miles telephoned defendant, the attending physician, for assistance and consultation. On at least one occasion, defendant came to the operating room, but did not perform any surgery. The operation was unsuccessful in reestablishing blood flow in plaintiff's lower leg, and on the following day, his left leg was amputated below the knee.

On 18 June 1982 at 4:28 p.m., plaintiff filed with the Durham County Clerk of Superior Court a "bare bones" complaint alleging that the plaintiff was admitted to North Carolina Memorial Hospital for treatment of a "false aneurysm" in his left leg, that Dr. Burnham was negligent in his care and treatment of plaintiff, and that plaintiff was damaged as a proximate result of such negligence. The complaint contained no allegations with respect to the specific manner in which defendant was purportedly negligent. The unverified complaint, numbered 82CVM06216, was signed by plaintiff's attorney Jeff Erick Essen, whose name also appeared as plaintiff's attorney on a civil summons identically numbered and issued simultaneously with the filing of the complaint.

At 4:30 p.m., two minutes after the original complaint was filed, a notice of dismissal, numbered 82CVS01674, was filed with the Durham County Clerk of Superior Court purporting to voluntarily dismiss the action without prejudice pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure. ¹

Plaintiff's counsel has, in complete frankness, conceded that neither he nor anyone else ever attempted to serve the summons and complaint or the notice of dismissal in the June 1982 Durham County action on defendant.

The three-year statute of limitations, as set forth in N.C.G.S. §§ 1-15(c) and 1-52, expired the next day, 19 June 1982. ² Nevertheless, on 16 June 1983, plaintiff filed with the Orange County Clerk of Superior Court a second unverified complaint bearing the signatures of attorneys Jeff Erick Essen and Grover C. McCain, Jr., naming Dr. Burnham as defendant and setting forth a cause of action for medical malpractice arising out of the June 1979 surgical procedures. ³ A summons issued on 16 June 1983 was served on defendant, along with the complaint of the same date, on 14 July 1983.

Upon receipt of the 1983 Orange County summons and complaint, defendant filed a motion to dismiss on 27 July 1983 pursuant to Rule 12(b)(6) of the Rules of Civil Procedure on grounds that the three-year statute of limitations prescribed by N.C.G.S. §§ 1-15(c) and 1-52 barred the action which allegedly accrued on 19 June 1979 and that the complaint failed to allege circumstances making the plaintiff's injuries not readily apparent so as to extend the limitations period under N.C.G.S. § 1-15(c) an additional year. It was not until after this motion had been filed and served that defendant first became aware that a summons had been issued and a complaint filed and voluntarily dismissed in Durham County one year earlier by this same plaintiff for damages arising out of the identical factual circumstances.

A hearing was conducted before Judge Russell G. Walker, Jr., on 2 April 1984 on defendant's motion to dismiss the 1983 Orange County complaint on grounds that the action was time-barred. Judge Walker ordered that defendant's Rule 12(b)(6) motion be allowed and the action be dismissed with prejudice. Plaintiff gave notice of appeal to the North Carolina Court of Appeals on 5 April 1984.

The Court of Appeals reversed Judge Walker's judgment dismissing the action, reasoning that N.C.G.S. § 1A-1, Rule 41(a)(1) does not require that a plaintiff serve or attempt to serve process upon a defendant prior to taking a voluntary dismissal of the action without prejudice, thus benefitting the plaintiff with the "saving" provision of that rule allowing the action to be refiled within one year after such dismissal. The Court of Appeals reasoned that plaintiff's 1982 Durham County action had not been discontinued by failure to attempt service and was still therefore "alive" at the time plaintiff took his Rule 41(a)(1) dismissal. In other words, prior to taking the dismissal, "no time period had lapsed during which plaintiff was required ... to take further steps to keep his action viable." Estrada v. Burnham, 74 N.C.App. at 559, 328 S.E.2d at 612. The Court of Appeals held that by his actions (filing the 1982 Durham County complaint and having summons simultaneously issued, then instantly dismissing the complaint), plaintiff "tolled the statute of limitations and effectively obtained the one year extension within which to commence a new action based on the same claim pursuant to Rule 41(a)(1)." Id. Because plaintiff's 1983 Orange County complaint was filed within one year of the 1982 Durham County voluntary dismissal, the Court of Appeals reversed the order dismissing plaintiff's 1983 Orange County action.

We reverse and remand for reinstatement of the order of Judge Walker dismissing the 1983 Orange County action.

N.C.G.S. § 1A-1, Rule 41(a), ⁴ provides in pertinent part:

(a) Voluntary dismissal; effect thereof.--

(1) By Plaintiff; ...-- Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case.... If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal....

The Court of Appeals' opinion seems to assume that Rule 41(a)(1) may be applied in isolation. This assumption is erroneous. Rule 41(a)(1) must be applied in conjunction with the rules for drafting and certification of pleadings. It was unnecessary for the Court of Appeals to reach the question of whether a Rule 4 requirement of service or attempted service of process is engrafted on Rule 41(a)(1), because the complaint filed by plaintiff in Durham County at 4:28 p.m. on 18 June 1982 and dismissed two minutes later was a sham pleading subject to being stricken and disregarded pursuant to Rule 11(a).

We disagree with the Court of Appeals' conclusion that "[d]efendant's contentions regarding Rule 11 are ... inapplicable to the facts of this case." On the contrary, we find Rule 11(a) dispositive. Rule 11(a) provides in pertinent part:

(a) Signing by attorney.--Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.... The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served. (Emphasis added.)

In his briefs before the Court of Appeals and before this Court, plaintiff has candidly conceded that the 1982 Durham County "lawsuit was filed with the intention of dismissing it in order to avoid the lapse of the statute of limitations." Indeed, during oral argument before this Court in reference to his filing the 1982 Durham County complaint, plaintiff's counsel admitted, "We did not intend at that point in time to prosecute a legal action against the doctor [defendant, Burnham]." Again during oral argument before this Court, plaintiff's counsel stated, "Clearly there was an intention on our part not to prosecute that [1982 Durham County] action, and we concede that."

The dispositive question is whether a plaintiff may file a complaint within the time permitted by the statute of limitations for the sole purpose of tolling the statute of limitations, but with no intention of pursuing the prosecution of the action, then voluntarily dismiss the complaint and thereby gain an additional year pursuant to Rule 41(a)(1). We conclude that an affirmative response to this question would amount to an endorsement of a violation of the spirit as well as the letter of the North Carolina Rules of Civil Procedure.

We do not agree with plaintiff's implied assumption (and apparently that of the panel below) that Rule 41(a)(1) may be construed and applied in isolation. The Rules of Civil Procedure represent a carefully drafted scheme, modeled after the Federal Rules of Civil Procedure, "designed to eliminate the sporting element from litigation.... [T]he rules should be construed as a whole, giving no one rule disproportionate emphasis over another applicable rule." W. Shuford, North Carolina Civil Practice and Procedure § 1-3 (2d ed. 1981) (footnotes omitted). Although it is true that Rule 41(a)(1) does not, on its face, contain an explicit prerequisite of a good-faith filing with the intent to pursue the action, we find such a requirement implicit in the general spirit of the rules, as well as in the mandates of Rule 11(a). Construing the rules as a whole, we hold that Rules 41(a)(1) and 11(a) must be construed in pari materia to require that, in order for a...