Stokes v. Wilson and Redding Law Firm, 8317SC1220

• Decision Date: 28 December 1984
• Docket Number: No. 8317SC1220,8317SC1220
• Citation: 323 S.E.2d 470,72 N.C.App. 107
• Court: North Carolina Court of Appeals
• Parties: John C. STOKES, Jr. v. WILSON AND REDDING LAW FIRM (Alice E. Patterson).

Page 470

323 S.E.2d 470

72 N.C.App. 107

John C. STOKES, Jr. v. WILSON AND REDDING LAW FIRM (Alice E. Patterson).

No. 8317SC1220.

Court of Appeals of North Carolina.

Dec. 28, 1984.

Ramsey & Grace by Richard D. Ramsey, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by William C. Raper and Michael E. Ray, Winston-Salem, for defendant-appellee.

BECTON, Judge.

From an order dismissing, with prejudice, plaintiff's claim that his North Carolina attorney negligently represented him on an underlying medical negligence claim against a Florida doctor, plaintiff appeals. We reverse.

I Facts and Procedural History

On 11 September 1979, plaintiff, John C. Stokes, Jr., suffered a massive stroke while under the care of a Florida doctor. Plaintiff alleges that, as a result of the stroke caused by the doctor's gross negligence, he suffered "permanent loss or physical impairment, incurred extensive medical and psychological expenses, and was required to undergo surgery for a heart replacement valve."

Between 24 November 1980 and 6 April 1981, the defendant, Attorney Alice Patterson (Attorney Patterson), was retained to represent plaintiff, and she filed, on his behalf, a medical negligence action in the United States District Court for the Middle District of North Carolina on the basis of diversity of citizenship. A voluntary dismissal was taken in that case, and, according to plaintiff, Attorney Patterson told plaintiff "verbally" [orally] that he had one year from the date of dismissal to refile his claim against the doctor, and, further, told him he could do so without a lawyer. On 6 April 1982, plaintiff filed a pro se complaint against the doctor in federal court as he had been advised to do. On 20 July 1982, however, the United States District Court for the Middle District of North Carolina dismissed plaintiff's Complaint as being barred by Florida's two-year statute of limitations, which ran on 11 September 1981.

In his initial, pro se Complaint in this, his legal malpractice case, plaintiff alleges, generally, that he relied on Attorney Patterson's knowledge of the law and that she negligently advised him of his rights in prosecuting his medical negligence case. Plaintiff sought "compensatory damages in an amount exceeding $10,000" as well as other relief. Attorney Patterson filed a motion to dismiss on 23 May 1983, setting forth nine alleged deficiencies in plaintiff's pro se action, including a lack of personal jurisdiction over her. Seeking to overcome the "alleged deficiencies," plaintiff, on 27 June 1983, filed a motion to amend the Complaint and a more detailed and extensive proposed Amended Complaint. In the ad damnum clause of the proposed Amended Complaint, plaintiff included a demand for relief in the amount of three million dollars. On 30 June 1983, Attorney Patterson filed a second motion to dismiss in which she re-alleged "each and every basis for the motion to dismiss dated May 23, 1983 and further move[d] pursuant to Rule 41(b) that this action be dismissed with prejudice on the grounds that plaintiff has violated Rule 8(a)(2) in the amended complaint...." by stating an improper demand for relief in the amount of three million dollars.

The motions were heard before Judge Long on 5 July 1983. Judge Long's order is set forth in its entirety below:

This cause coming on to be heard and being heard by the Undersigned Judge Presiding at the July 5, 1983 Special Civil Session of Surry Superior Court, with the consent of plaintiff and of defendant Patterson that this matter might be ruled upon out of county and out of term, upon plaintiff's Motion To Amend The Complaint and upon defendant Patterson's two Motions to dismiss pursuant to Rule 8(a)(2), 12(b)(2), (4), (5) and (6), and 41(b), and after having heard argument of Plaintiff and of counsel for defendant Patterson, and after having reviewed the file (including the Affidavit filed July 6, 1983), the Court is of the opinion that plaintiff's Complaint, the amendment thereto already having been filed, be deemed amended as set forth in the heretofore filed Amended Complaint; and the Court is further of the opinion that defendant Patterson's Motions should be granted.

Now, therefore, it is ordered adjudged and decreed that defendant Patterson's Motions to dismiss be and the same hereby are granted, and the plaintiff's amended complaint is hereby dismissed with prejudice, with plaintiff to bear his own costs.

II

Contentions of the Parties (First Series of Arguments)

A. In his brief on appeal, plaintiff's counsel ingeniously concedes and stipulates the existence of insufficiency of process, insufficiency of service of process, and "lack of personal jurisdiction over [Attorney Patterson] ... and, further stipulates and concedes that the trial court correctly decided that it did not have personal jurisdiction over her." Seeking, thus, to pare his case down to narrower and more defensible issues, plaintiff first argues that: (1) the trial court had no jurisdiction or authority to enter any order except a dismissal for lack of personal jurisdiction over Attorney Patterson; and (2) that, therefore, the trial court's action (a) in allowing plaintiff's motion to amend, (b) in granting Attorney Patterson's motion to dismiss under Rules 8 and 12(b)(6) of our Rules of Civil Procedure, and (c) in entering judgment of dismissal with prejudice under Rule 41(b) of our Rules of Civil Procedure, should be vacated because those portions of the Orders are void.

B. Contending that neither the record facts nor law supports plaintiff's first series of arguments, defendant counters by contending that: (1) the trial court's Order does not state that dismissal is for lack of jurisdiction over Attorney Patterson, but, rather, merely states that "Patterson's motions to dismiss be, and the same hereby are granted, ..."; (2) "when there are multiple grounds asserted for the dismissal of an action and it does not appear from the record which of the grounds constitutes the foundation for the order of dismissal, the reviewing court will presume that the order is based upon the grounds that are sufficient to support it"; and (3) the trial court had personal jurisdiction over Attorney Patterson since "a proper summons was issued, directed to and served upon Patterson [on 2 May 1983] ... [and revived and commenced] a new action on the date of its issuance."

Analysis

A. Service of Process and Personal Jurisdiction

Although the trial court specifically listed six of the nine bases upon which Attorney Patterson sought to have plaintiff's Amended Complaint dismissed, the trial court simply ordered, without specifying the basis or bases upon which it relied, that "the plaintiff's Amended Complaint is hereby dismissed with prejudice...." Generally speaking, a trial court's failure to set forth a basis for its decision hampers the appellate review process and sometimes requires appellate courts to rely on certain presumptions. Indeed, attorney Patterson, as appellee, has cited London v. London, 271 N.C. 568, 157 S.E.2d 90 (1967), for the proposition that when there are multiple grounds asserted for the dismissal of an action and it does not appear from the record which of the grounds constitutes the foundation for the order of dismissal, the reviewing court will presume that the order is based upon the grounds that are sufficient to support it. Reliance on the London Court's general statement regarding the presumption in favor of the correctness of the trial court's order, only provides attorney Patterson with a hollow victory in this case, as we first find London factually distinguishable, and as we further find no sufficient grounds to support the order dismissing plaintiff's claim with prejudice in this case.

The original Complaint was filed on 1 April 1983, and no properly issued summons was served on attorney Patterson until 2 May 1983. Although N.C.Gen.Stat. § 1A-1, Rule 4(a) (1983) is clear and unambiguous in its requirement that "upon the filing of the complaint, summons shall be issued forthwith, and in any event, within five days," our Court has recognized that a properly issued and served second summons can revive and commence a new action on the date of its issuance. For example, in Roshelli v. Sperry, 57 N.C.App. 305, 291 S.E.2d 355 (1982), plaintiff filed a Complaint on 27 March 1981 against the owner of a car, based on the negligent acts of the owner's daughter, who was driving the car. The summons was issued that same day in the name of the owner's daughter, rather than the owner. On 7 April 1983, a second summons was issued in the owner's name and was served on him on 13 April 1983. In affirming the trial court's order denying defendant's motion to dismiss on grounds of lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process, this Court said:

When proper summons was not issued within five days of the filing of the complaint on 27 March 1981, the action was subject to dismissal upon motion by the defendant before the issuance of the second summons for service on the defendant. The motion to dismiss was made after the issuance and service of the second summons. The action abated upon failure to issue proper summons within five days of filing the complaint, but the action revived upon the issuance and service of summons on defendant. Therefore, the effect of the second summons, issued on 7 April 1981 for service on the named defendant and served on 13 April 1981, was to revive and commence a new action on the date of issue.

Roshelli, 57 N.C.App. at 308, 291 S.E.2d at 357. In this case, as in Roshelli, Attorney Patterson made no motion to dismiss prior to being served with the second summons. Therefore, the second summons issued and served on her on 2 May 1983 revived and commenced a new action on the date of issue.

B. Propriety of the Rule 41(b) Dismissal With Prejudice

Having disposed of pla...