Valentine v. Solosko

• Decision Date: 07 April 2020
• Docket Number: No. COA19-852,COA19-852
• Parties: Shirley VALENTINE, Administrator of the Estate of Shanye Janise Roberts, Deceased, Plaintiff, v. Stephanie SOLOSKO, PA-C; NextCare Urgent Care; NextCare, Inc.; NextCare, Inc. d.b.a. NextCare Urgent Care; Matrix Occupational Health, Inc. and Matrix Occupational Health, Inc. d.b.a. NextCare Urgent Care, Defendants.
• Court: North Carolina Court of Appeals

270 N.C.App. 812

842 S.E.2d 621

Shirley VALENTINE, Administrator of the Estate of Shanye Janise Roberts, Deceased, Plaintiff,

v.Stephanie SOLOSKO, PA-C; NextCare Urgent Care; NextCare, Inc.; NextCare, Inc. d.b.a. NextCare Urgent Care; Matrix Occupational Health, Inc. and Matrix Occupational Health, Inc. d.b.a. NextCare Urgent Care, Defendants.

No. COA19-852

Court of Appeals of North Carolina.

Filed: April 7, 2020

The Law Office of Thomas E. Barwick, PLLC, by Thomas E. Barwick, for Plaintiff-Appellee.

Lewis Brisbois Bisgaard & Smith, LLP, Raleigh, by Carrie E. Meigs and Justin G. May, for Defendants-Appellants.

COLLINS, Judge.

Defendants appeal from an order granting Plaintiff's motion for an extension of time to serve the summons and complaint and denying Defendants' motions to dismiss and for judgment on the pleadings. Defendants argue that the trial court erred in its application of Rules 4 and 6 of the North Carolina Rules of Civil Procedure. Because a trial court is afforded discretion under Rule 6(b) to retroactively extend the time for service of process of a dormant summons under Rule 4(c) upon a finding of excusable neglect, we discern no legal error by the trial court. Accordingly, we affirm the trial court's order.

I. Procedural History

Plaintiff, Shirley Valentine, the administrator of the estate of her deceased daughter Shanye Janise Roberts, filed a lawsuit in 2015 alleging medical malpractice and wrongful death against Stephanie Solosko, PA-C; NextCare Urgent Care; NextCare, Inc.; NextCare, Inc. D.B.A. NextCare Urgent Care; Matrix Occupational Health, Inc.; and Matrix Occupational Health, Inc. D.B.A. NextCare Urgent Care (collectively "Defendants"). The action arose out of medical care that Defendants provided to the deceased on 10 April 2013. The trial court extended the statute of limitations to 7 August 2015 pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. Plaintiff voluntarily dismissed the lawsuit without prejudice on 24 February 2017.

Plaintiff timely filed a second lawsuit on 23 February 2018 and the Clerk of Court issued summonses ("the original summonses") for all Defendants on that day. Plaintiff served the original summonses on defendant Solosko on 15 May 2018 and the other defendants on 17 May 2018 (eighty-one and eighty-three days, respectively, after the original summonses were issued). Plaintiff filed an affidavit of service of process on 15 June 2018, including the returned registry receipts as exhibits.

Plaintiff sued out alias or pluries summonses¹ for all Defendants on 23 May 2018, eighty-nine days after the original summonses were issued. Plaintiff did not serve these alias or pluries summonses on Defendants.

On 19 July 2018, Defendants filed an answer and a motion to dismiss on the following grounds: lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and the action being time-barred by the statute of limitations. Defendants also filed a motion for judgment on the pleadings.

Plaintiff sued out alias or pluries summonses again on 22 August 2018, ninety-one days after issuance of the previous alias or pluries summonses. Plaintiff did not serve these alias or pluries summonses. On 28 September 2018, Plaintiff filed a motion to extend time to issue, file, and serve the summonses, the alias or pluries summonses, and the complaint.

After conducting a hearing, the trial court entered an order granting Plaintiff's motion for extension of time for service of the summonses and complaint, and denying Defendants' motions to dismiss and for judgment on the pleadings. Defendants filed notice of appeal.

II. Appellate Jurisdiction

The trial court's order does not dispose of all claims and all defendants, and is thus an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(a) (2019) ; Veazey v. City of Durham , 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). There is generally no right to immediate appeal of an interlocutory order—although immediate appeal may be permitted if the trial court certifies the order under N.C. Gen. Stat. § 1A-1, Rule 54(b), or if the appellant can show that the order affects a substantial right—because most interlocutory appeals tend to hinder judicial economy by causing unnecessary delay and expense. Love v. Moore , 305 N.C. 575, 580, 291 S.E.2d 141, 145-46 (1982).

Here, the trial court could not certify the order pursuant to Rule 54(b) because "there has been no adjudication as to any claim(s) or part(ies) within the meaning of Rule 54(b)." Howze v. Hughes , 134 N.C. App. 493, 495, 518 S.E.2d 198, 199 (1999). Moreover, contrary to Defendants' argument that the order affects a substantial right under N.C. Gen. Stat. § 1-277(b), which allows "the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant[,]" our courts have routinely held that that section 1-277(b) is limited to rulings on minimum contacts questions, and does not apply to rulings based on procedural issues regarding issuance or service of process, such as the order at issue in this case. See Berger v. Berger , 67 N.C. App. 591, 595, 313 S.E.2d 825, 829 (1984). Nonetheless, "because the case sub judice is one of those exceptional cases where judicial economy will be served by reviewing the interlocutory order, we will treat the appeal as a petition for a writ of certiorari and consider the order on its merits." Carolina Bank v. Chatham Station, Inc. , 186 N.C. App. 424, 428, 651 S.E.2d 386, 389 (2007) (citations omitted); N.C. R. App. P. 21(a)(1).

III. Discussion

The central question is whether the trial court may, upon a showing of excusable neglect, grant an extension of time under these facts to serve a dormant summons where a second alias or pluries summons was obtained ninety-one days after the previous alias or pluries summons.

Plaintiff argues that Lemons v. Old Hickory Council, Boy Scouts of America, Inc. , 322 N.C. 271, 367 S.E.2d 655, reh'g denied , 322 N.C. 610, 370 S.E.2d 247 (1988), and its progeny control the outcome here. Conversely, Defendants contend that Plaintiff's failure to timely obtain the second alias or pluries summons effectively discontinued the action, as was the case in Dozier v. Crandall , 105 N.C. App. 74, 411 S.E.2d 635 (1992).

Rule 4 governs service of process. See N.C. Gen. Stat. § 1A-1, Rule 4 (2019). Upon the filing of a complaint, summons shall be issued within five days. Id. at § 1A-1, Rule 4(a). Rule 4(c) requires that a summons be served within sixty days of issuance. Id. at § 1A-1, Rule 4(c). A summons not served within sixty days "loses its vitality and becomes functus officio , and service obtained thereafter does not confer jurisdiction on the trial court over the defendant. However, although a summons not served within [sixty] days becomes dormant and unserveable, under Rule 4(c) it is not invalidated nor is the action discontinued." Dozier , 105 N.C. App. at 75-76, 411 S.E.2d at 636 (citations omitted).

If the summons is not served within sixty days of issuance, Rule 4(d) permits the action to be continued in existence by an endorsement from the clerk or issuance of an alias or pluries summons within ninety days of the issuance of the preceding summons. N.C. Gen. Stat. § 1A-1, Rule 4(d). Any such alias or pluries summons must be served within sixty days of issuance. See Lemons , 322 N.C. at 275, 367 S.E.2d at 657.

When there is neither an endorsement nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant who was not served with summons within the time allowed. N.C. Gen. Stat. § 1A-1, Rule 4(e). Thereafter, endorsement may be obtained or alias or pluries summons may issue, but, as to any defendant who was not served with summons within the time specified in Rule 4(d), the action shall be deemed to have commenced on the date of such issuance or endorsement. Id.

" Rule 4 ... must be interpreted in conjunction with Rule 6, which addresses the computation of any time period prescribed by the Rules of Civil Procedure." Lemons , 322 N.C. at 275, 367 S.E.2d at 657. Rule 6 provides:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect.

N.C. Gen. Stat. § 1A-1, Rule 6 (2019).

In Lemons , our North Carolina Supreme Court concluded that Rule 6 permitted the trial court to grant an extension of time to serve a dormant summons, and thus revive it, where the alias summons was served on the defendant after the time for service of process under Rule 4(c) had expired.

Lemons , 322 N.C. at 277, 367 S.E.2d at 658. The plaintiff commenced an action against the defendant on 6 February 1986. A summons was also issued that day but was not served. An alias summons was issued on 2 May of that year and was served on 5 June, more than thirty days² after its issuance. On 13 October 1986, the plaintiff filed a motion for retroactive extension of time, nunc pro tunc, from 2 June until 6 June to serve the alias summons. Construing Rule 4 in para materia with Rule 6(b), the Court determined that the General Assembly, by adopting Rule 6(b), gave trial courts the authority to extend the time provided in Rule 4(c) to serve a summons upon a finding of excusable neglect, and thus to "breathe new life and effectiveness into [a dormant summons] retroactively after it has become functus officio ." Id. at 274-75, 367 S.E.2d at 657. The Court concluded that Rule...