{
  "id": 11915328,
  "name": "84 LUMBER COMPANY, Plaintiff v. CHARLES A. BARKLEY and JOEL D. CARPENTER, d/b/a PARADIGM BUILDERS, Defendants",
  "name_abbreviation": "84 Lumber Co. v. Barkley",
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  "casebody": {
    "judges": [
      "Judges LEWIS and JOHN concur."
    ],
    "parties": [
      "84 LUMBER COMPANY, Plaintiff v. CHARLES A. BARKLEY and JOEL D. CARPENTER, d/b/a PARADIGM BUILDERS, Defendants"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nIn granting dismissal of the second action, the trial court ruled that plaintiff\u2019s action was barred because plaintiff failed to refile within one year after plaintiffs previous action had been involuntarily dismissed without prejudice pursuant to Rule 41(b). Plaintiff argues that the second action was timely filed because it was filed within the applicable statute of limitations period. After careful review, we reverse and remand.\nUnder Rule 41(b), a dismissal operates as an adjudication on the merits, unless the judge specifies that the dismissal is without prejudice. G.S. \u00a7 1A-1, Rule 41(b) (1977). Here, the order expressly stated that the 29 June 1992 dismissal was without prejudice. Rule 41(b) states in pertinent part that:\nIf the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal.\nG.S. \u00a7 1A-1, Rule 41(b) (1977). The unambiguous language of Rule 41(b) permits the trial court to affirmatively specify in its order that the action be refiled within a year or less. Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 809, 431 S.E.2d 227, 230 (1993), aff\u2019d, 336 N.C. 599, 444 S.E.2d 233 (1994). The 29 June 1992 order contains no specification whatsoever with regard to the time in which plaintiff may commence a new action based on the same claim. Accordingly, the applicable statute of limitations is controlling with regard to the time in which plaintiff was allowed to refile.\nEven if the order had included language purporting to limit the time in which plaintiff could commence a new action to one year or less, defendant\u2019s argument would fail. The Rule 41(b) language by which the judge may, in his discretion, grant plaintiff an additional one year or less to refile is often referred to as the \u201csavings provision\u201d of Rule 41(b). Clark, 110 N.C. App. at 809, 431 S.E.2d at 230. Although the savings provision of Rule 41(b) is triggered differently than the savings provision of Rule 41(a) in that Rule 41(b) requires the judge to affirmatively grant extra time, the effect of each savings provision once triggered is the same. With respect to Rule 41(a)(1), the extra time granted:\n[I]s an extension of time beyond the general statute of limitation rather than a restriction upon the general statute of limitation. In other words, a party always has the time limit prescribed by the general statute of limitation and in addition thereto they get the one year provided in Rule 41(a)(1). But Rule 41(a)(1) shall not be used to limit the time to one year if the general statute of limitation has not expired.\nWhitehurst v. Virginia Dare Transportation Co., 19 N.C. App. 352, 356, 198 S.E.2d 741, 743 (1973). This same rationale applies to any savings period granted by the judge under Rule 41(b). Accordingly, plaintiff here could refile its action at any time until the expiration of the applicable statute of limitations. The record before us is ambiguous as to the appropriate statute of limitations. Whether plaintiff properly refiled within the time allotted by the applicable statute of limitations is not now before us.\nWe do not reach the issue of what time for refiling, if any, is available to a plaintiff whose case has been dismissed under Rule 41(b) without prejudice and without a specifically granted savings period, but after the applicable statute of limitations has run. We note, however, that generally if a plaintiff wishes to take advantage of the savings provision under Rule 41(b), it is plaintiff\u2019s \u201cresponsibility to convince [the court] to include in the order or opinion a statement specifying that plaintiff had [additional time] to refile.\u201d Clark, 110 N.C. App. at 809, 431 S.E.2d at 230.\nReversed and remanded.\nJudges LEWIS and JOHN concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Harry Pavilack & Associates, by David C. Haar, for plaintiff-appellant.",
      "Henry L. Fowler, III, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "84 LUMBER COMPANY, Plaintiff v. CHARLES A. BARKLEY and JOEL D. CARPENTER, d/b/a PARADIGM BUILDERS, Defendants\nNo. COA94-1133\n(Filed 19 September 1995)\nLimitations, Repose, and Laches \u00a7 139 (NCI4th)\u2014 involuntary dismissal without prejudice \u2014 appropriate time for refiling action\nWhere plaintiff\u2019s action was involuntarily dismissed without prejudice pursuant to N.C.G.S. \u00a7 1A-1, Rule 41(b), plaintiffs second action was not barred because it was not filed within one year of dismissal; rather, if the action was filed within the applicable statute of limitations, then it was timely filed.\nAm Jur 2d, Limitation of Actions \u00a7\u00a7 301-318.\nAppeal by plaintiff from order entered 10 August 1994 by Judge Joyce A. Brown in Gaston County District Court. Heard in the Court of Appeals 29 August 1995.\nOn 18 February 1992, plaintiff filed an action in the Gaston County District Court seeking recovery of an alleged debt. Defendant failed to file an answer, and plaintiff took no further action before the court to prosecute its claim. On 29 June 1992, Judge Daniel J. Walton entered an order dismissing the action because \u201c[t]he plaintiff elected not to prosecute this action, and [because] [defendant has not filed [an] Answer.\u201d In his order, Judge Walton expressly noted that the dismissal was without prejudice.\nOn 2 May 1994, plaintiff filed a second substantially identical action seeking collection of the same debt. Defendant filed an answer and counterclaim on 27 June 1994. Defendant\u2019s answer alleged that Judge Walton\u2019s order of 29 June 1992 was an involuntary dismissal under Rule 41(b) of the North Carolina Rules of Civil Procedure, and that because plaintiff had not refiled within one year of the dismissal, plaintiff\u2019s claim was barred. After hearing, the trial court dismissed plaintiff\u2019s action.\nPlaintiff appeals.\nHarry Pavilack & Associates, by David C. Haar, for plaintiff-appellant.\nHenry L. Fowler, III, for defendant-appellee."
  },
  "file_name": "0271-01",
  "first_page_order": 305,
  "last_page_order": 307
}