{ "id": 8372915, "name": "KATHERINE M. ROBERTSON, Plaintiff v. GRAHAM H. PRICE, STONE & CHRISTY, P.A., WILLIAM H. CHRISTY AND BRYANT D. WEBSTER, Defendants", "name_abbreviation": "Robertson v. Price", "decision_date": "2007-11-06", "docket_number": "No. COA07-257", "first_page": "180", "last_page": "185", "citations": [ { "type": "official", "cite": "187 N.C. App. 180" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "151 S.E.2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "20", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "268 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563802 ], "year": 1966, "pin_cites": [ { "page": "554", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0552-01" ] }, { "cite": "490 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "244", "parenthetical": "internal citation omitted" }, { "page": "244" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797262 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "441", "parenthetical": "internal citation omitted" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0440-01" ] }, { "cite": "441 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526439, 2527798, 2526937, 2529402, 2527003 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0556-05", "/nc/335/0556-01", "/nc/335/0556-02", "/nc/335/0556-04", "/nc/335/0556-03" ] }, { "cite": "433 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "481" }, { "page": "481", "parenthetical": "holding that defective service of process discontinued plaintiff's original action where plaintiff failed to serve the Rule 3(a) summons and order extending time to file a complaint" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 871", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524503 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "874" }, { "page": "874" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0871-01" ] }, { "cite": "325 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 796", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758339, 4749837, 4759214, 4754262, 4759069 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0796-02", "/nc/312/0796-01", "/nc/312/0796-05", "/nc/312/0796-04", "/nc/312/0796-03" ] }, { "cite": "319 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "332", "parenthetical": "citation omitted" }, { "page": "331" }, { "page": "331" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521629 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "285", "parenthetical": "citation omitted" }, { "page": "283" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0281-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-52", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 } ], "analysis": { "cardinality": 425, "char_count": 11452, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20317671030241533 }, "sha256": "893c04c43191777ae85613b0a9cde58bb7c497f23296b29b8417f59486dc1180", "simhash": "1:04133e0bc8eca85f", "word_count": 1946 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "KATHERINE M. ROBERTSON, Plaintiff v. GRAHAM H. PRICE, STONE & CHRISTY, P.A., WILLIAM H. CHRISTY AND BRYANT D. WEBSTER, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nWhen a defendant is not served with process within the time allowed, the action may be continued by suing out an alias or pluries summons within 90 days where there is \u201can unbroken chain from the first summons to the time of actual service.\u201d Here, because the plaintiff failed to serve the defendants with process within the time allowed and did not create an unbroken chain of summonses referring back to the original summonses, we affirm.\nOn 2 February 2003, Plaintiff Katherine Robertson entered into an Offer to Purchase and Contract with Graham H. Price for the purchase of real property located in Black Mountain, North Carolina. One of the terms of the contract granted Ms. Robertson a right-of-way to 2.42 acres of land which was part of the total land purchase. Ms. Robertson employed Defendants, Stone and Christy, P.A., William A. Christy, and Bryant D. Webster, to examine the title and represent her in the purchase of the property.\nAfter closing on the purchase of the property on 14 March 2003, Ms. Robertson discovered that the right-of-way specified in the contract had not been conveyed to her. She filed suit against the seller, Graham H. Price, and against Defendants for negligence arising out of their representation of Ms. Robertson in the purchase of the Black Mountain property. Ms. Robertson\u2019s claim against Graham H. Price was dismissed and is not the subject of this appeal. Because Defendants\u2019 alleged negligence occurred on or before 14 March 2003, the statute of limitations on Ms. Robertson\u2019s claims barred any action commenced after 14 March 2006. See N.C. Gen. Stat. \u00a7 1-52 (2005).\nOn 14 March 2006, Ms. Robertson filed an application requesting \u201cpermission to file a complaint within twenty (20) days\u201d of the order. On that same day, the Clerk of Court granted the order of extension, and issued a \u201cCivil Summons to be Served with Order Extending Time to File Complaint\u201d to each of the three Defendants.\nOn 3 April 2006, Ms. Robertson filed a complaint and caused Civil Summonses to be issued against Defendants. The record indicates that Ms. Robertson did not serve Defendants with either the \u201cCivil Summons to be Served with Order Extending lime to File Complaint\u201d issued on 14 March or the Civil Summonses issued on 3 April 2006. Moreover, none of the 3 April summonses stated that they were alias or pluries summonses, nor did they refer back to the 14 March summonses.\nOn 12 June 2006, Ms. Robertson caused additional summonses to be issued against Defendants. The summons issued against Stone & Christy, P.A. was designated as an alias and pluries summons and referred to 3 April 2006 as the \u201cDate Last Summons Issued.\u201d The summons issued against William A. Christy also referred to 3 April 2006 as the \u201cDate Last Summons Issued.\u201d The summons issued against Bryant D. Webster did not refer to the 3 April 2006 summons. On 20 June 2006, Defendants were served with copies of the 12 June 2006 summonses and Ms. Robertson\u2019s complaint. Attached to Ms. Robertson\u2019s complaint were the application and order extending time to file complaint filed 14 March 2006.\nOn 29 June 2006, Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted and lack of jurisdiction. The trial court conducted a hearing on 1 November 2006 and entered an Order granting Defendants\u2019 motion to dismiss on 1 December 2006.\nMs. Robertson now appeals, arguing that the trial court erred by dismissing her action. We disagree.\nIt is well settled that the \u201csummons, not the complaint, constitutes the exercise of the power of the State to bring the defendant before the court.\u201d Childress v. Forsyth Cty. Hosp. Auth., Inc., 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984) (citation omitted), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985). \u201cThe purpose of a summons is to give notice to a person to appear at a certain place and time to answer a complaint against him.\u201d Latham v. Cherry, 111 N.C. App. 871, 874, 433 S.E.2d 478, 481 (1993), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994). \u201cIn order for a summons to serve as proper notification, it must be issued and served in the manner prescribed by statute.\u201d Id.\nRule 3(a) of our North Carolina Rules of Civil Procedure provides that an action may be commenced by the issuance of a summons when \u201c[a] person makes an application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 3(a) (2005). Rule 3 then provides that \u201c[t]he summons and the court\u2019s order [extending time] shall be served in accordance with the provisions of Rule 4.\u201d Id. Rule 4(c) of our North Carolina Rules of Civil Procedure requires personal or substituted service of a summons \u201cwithin 60 days after the date of the issuance of the summons.\u201d Id. at Rule 4(c). However, Rule 4(d) allows for an extension of time for service in a civil action where a plaintiff obtains \u201can endorsement upon the original summons\u201d or \u201csue[s] out an alias or pluries summons returnable in the same manner as the original process . . . within 90 days after the date of issue of the last preceding summons in the chain of summonses.\u201d Id. at Rule 4(d)(2).\nThe statute\u2019s reference to a \u201cchain of summonses\u201d has been interpreted as \u201can implicit requirement that an alias or pluries summons contain a reference in its body to indicate its alleged relation to the original.\u201d Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 441, 490 S.E.2d 242, 244 (1997) (internal citation omitted). The issuance of an alias or pluries summons without an indication of its relation to the original summons \u201chas the double effect of initiating a new action and discontinuing the original one.\u201d Id. Our Supreme Court has held that an improperly issued alias or pluries summons may still be sufficient as an original summons. Webb v. Seaboard Air Line R.R. Co., 268 N.C. 552, 554, 151 S.E.2d 19, 20 (1966) (citation omitted). \u201cBut when it is desired that the action shall date from the date of issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.\u201d Id.\nHere, Defendants\u2019 alleged negligence occurred on or before 14 March 2003. Therefore, the statute of limitations on Ms. Robertson\u2019s claims barred any action commenced after 14 March 2006. See N.C. Gen. Stat. \u00a7 1-52. Ms. Robertson properly initiated her action against Defendants on 14 March 2006, by causing three \u201cCivil Summons to be Served with Order Extending Time to File Complaint\u201d to be issued and obtaining an \u201cApplication and Order Extending Time To File Complaint.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 3(a). However, Ms. Robertson never served Defendants with the 14 March 2006 summonses and Defendants were not served with the Application and Order Extending Time to File Complaint until 20 June 2006.\nMs. Robertson filed her complaint on 3 April 2006, within the 20-day extension of time, and caused additional Civil Summonses to be issued against Defendants. However, Ms. Robertson did not refer to the original 14 March 2006 summonses on the face of the 3 April 2006 summonses, nor were the 3 April 2006 summonses designated as alias or pluries.\nOn 12 June 2006, Ms. Robertson caused additional summonses to be issued against Defendants. One of the three summonses was designated as alias and pluries, and two of the three 12 June 2006 summonses referred to 3 April 2006 as the \u201cdate the last summons issued.\u201d Defendants were served with the 12 June 2006 summonses, Ms. Robertson\u2019s complaint, and the order extending time to file complaint on 20 June 2006.\nAlthough the 12 June 2006 summonses referred to the 3 April 2006 summonses, because the 3 April 2006 summonses were not alias or pluries and did not refer back to the 14 March 2006 summonses, Ms. Robertson failed to create \u201can unbroken chain from the first summons to the time of actual service.\u201d Childress, 70 N.C. App. at 283, 319 S.E.2d at 331. Ms. Robertson\u2019s issuance of the 3 April 2006 summonses without an indication of their relation to the original 14 March 2006 summonses had \u201cthe double effect of initiating a new action and discontinuing the original one.\u201d Integon, 127 N.C. App. at 441, 490 S.E.2d at 244; see also Latham, 111 N.C. App. at 874, 433 S.E.2d at 481 (holding that defective service of process discontinued plaintiff\u2019s original action where plaintiff failed to serve the Rule 3(a) summons and order extending time to file a complaint). The new action initiated on 3 April 2006 was outside of the three-year statute of limitations period. Accordingly, Defendants were not served with appropriate process within the statute of limitations. We affirm.\nAffirmed.\nJudges HUNTER and JACKSON concur.\n. Childress v. Forsyth Cty. Hosp. Auth., Inc., 70 N.C. App. 281, 283, 319 S.E.2d 329, 331 (1984); N.C. Gen. Stat. \u00a7 1A-1, Rule 4(d)(2) (2005).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Kelly & Rowe, P.A., by James Gary Rowe, for plaintiff-appellant.", "Long, Parker, Warren & Jones, PA., by W. Scott Jones, for defendants-appellees." ], "corrections": "", "head_matter": "KATHERINE M. ROBERTSON, Plaintiff v. GRAHAM H. PRICE, STONE & CHRISTY, P.A., WILLIAM H. CHRISTY AND BRYANT D. WEBSTER, Defendants\nNo. COA07-257\n(Filed 6 November 2007)\nProcess and Service; Statutes of Limitation and Repose\u2014 chain of summonses \u2014 issuance of alias or pluries summons without indication of relation to original summons\nThe trial court did not err in a negligence case arising out of the representation of plaintiff in the purchase of property by dismissing plaintiff\u2019s action based on plaintiff\u2019s failure to serve defendants with process within the time allowed, because: (1) the issuance of an alias or pluries summons without an indication of its relation to the original summons has the double effect of initiating a new action and discontinuing the original one; (2) when it is desired that the action shall date from the issuance of the original summons, or when it is necessary for it to do so, the successive writs must show their relation to the original process in order to toll the statute of limitations; (3) plaintiff never served defendants with the 14 March 2006 summonses and defendants were not served with the application and order extending time to file complaint until 20 June 2006; (4) although plaintiff filed her complaint on 3 April 2006 within the 20-day extension of time and caused additional civil summonses to be issued against defendants, she did not refer to the original 14 March 2006 summonses on the face of the 3 April 2006 summonses, nor were the 3 April 2006 summonses designated as alias or pluries; (5) although the 12 June 2006 summonses referred to the 3 April 2006 summonses, plaintiff failed to create an unbroken chain from the first summonses to the time of actual service since the 3 April 2006 summonses were not alias or pluries and did not refer back to the 14 March 2006 summonses; and (6) plaintiffs issuance of the 3 April 2006 summonses without an indication of their relation to the original 14 March 2006 summonses had the double effect of initiating a new action and discontinuing the original one, making the new action initiated on 3 April 2006 outside of the three-year statute of limitations period.\nAppeal by Plaintiff from order entered 1 December 2006 by Judge Robert D. Lewis, in Superior Court, Buncombe County. Heard in the Court of Appeals 18 September 2007.\nKelly & Rowe, P.A., by James Gary Rowe, for plaintiff-appellant.\nLong, Parker, Warren & Jones, PA., by W. Scott Jones, for defendants-appellees." }, "file_name": "0180-01", "first_page_order": 210, "last_page_order": 215 }