{ "id": 4161939, "name": "ROBERT E. CARLISLE, Plaintiff v. CSX TRANSPORTATION, INC., Defendant", "name_abbreviation": "Carlisle v. CSX Transportation, Inc.", "decision_date": "2008-11-04", "docket_number": "No. COA08-43", "first_page": "509", "last_page": "520", "citations": [ { "type": "official", "cite": "193 N.C. App. 509" } ], "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": "635 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636802 ], "year": 2006, "pin_cites": [ { "page": "494", "parenthetical": "quoting Strickland v. Jacobs, 88 N.C. App. 397, 399, 363 S.E.2d 229, 230 (1988); and Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 494, 586 S.E.2d 791, 798 (2003)" } ], "opinion_index": 0, "case_paths": [ "/se2d/635/0492-01" ] }, { "cite": "274 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "302 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564415 ], "year": 1981, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0201-01" ] }, { "cite": "44 F.3d 296", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7413258 ], "year": 1995, "pin_cites": [ { "page": "298", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/44/0296-01" ] }, { "cite": "444 U.S. 111", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11305036 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "117" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/us/444/0111-01" ] }, { "cite": "43 F. Supp. 2d 1304", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11616997 ], "year": 1999, "pin_cites": [ { "page": "1311", "parenthetical": "quoting United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 266 (1979)" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/43/1304-01" ] }, { "cite": "325 U.S. 304", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156228 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "314" }, { "page": "1635" } ], "opinion_index": 0, "case_paths": [ "/us/325/0304-01" ] }, { "cite": "339 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "858", "parenthetical": "quoting 51 Am. Jur. 2d Limitations of Actions Section 17 (1970); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 1635 (1945); and Burnett, 380 U.S. at 428, 13 L. Ed. 2d at 945" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522152 ], "year": 1986, "pin_cites": [ { "page": "583", "parenthetical": "quoting 51 Am. Jur. 2d Limitations of Actions Section 17 (1970); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 1635 (1945); and Burnett, 380 U.S. at 428, 13 L. Ed. 2d at 945" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0579-01" ] }, { "cite": "729 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "62", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411676 ], "year": 2000, "pin_cites": [ { "page": "967", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0965-01" ] }, { "cite": "532 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "217-18" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "year": 2000, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0612-01" ] }, { "cite": "391 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "183", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307589 ], "year": 1990, "pin_cites": [ { "page": "554", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0552-01" ] }, { "cite": "586 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956790 ], "year": 2003, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0484-01" ] }, { "cite": "363 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358320 ], "year": 1988, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0397-01" ] }, { "cite": "179 N.C. App. 852", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8240659 ], "year": 2006, "pin_cites": [ { "page": "855", "parenthetical": "quoting Strickland v. Jacobs, 88 N.C. App. 397, 399, 363 S.E.2d 229, 230 (1988); and Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 494, 586 S.E.2d 791, 798 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0852-01" ] }, { "cite": "380 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525353 ], "weight": 13, "year": 1965, "pin_cites": [ { "page": "424" }, { "page": "943" }, { "page": "427" }, { "page": "945" }, { "page": "427-28" }, { "page": "945" }, { "page": "427" }, { "page": "944-45", "parenthetical": "noting that United States Supreme \"Court has expressly held [that] the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it tnay be extended beyond three years.\"" }, { "page": "428" }, { "page": "945" } ], "opinion_index": 0, "case_paths": [ "/us/380/0424-01" ] }, { "cite": "524 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240749 ], "year": 2000, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0505-01" ] }, { "cite": "198 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553310 ], "year": 1973, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0352-01" ] }, { "cite": "528 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "351 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155921 ], "year": 2000, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0589-01" ] }, { "cite": "347 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "844", "parenthetical": "\"Dismissals entered pursuant to [Rule 41(a)(2)] are within the discretion of the trial court which may, in the further exercise of its discretion, dismiss with or without prejudice.\"" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359625 ], "year": 1986, "pin_cites": [ { "parenthetical": "\"Dismissals entered pursuant to [Rule 41(a)(2)] are within the discretion of the trial court which may, in the further exercise of its discretion, dismiss with or without prejudice.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0672-01" ] }, { "cite": "374 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527291 ], "year": 1988, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0513-01" ] }, { "cite": "514 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "301", "parenthetical": "quoting Wesley v. Bland, 92 N.C. App. 513, 515, 374 S.E.2d 475, 477 (1988)" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11215922 ], "year": 1999, "pin_cites": [ { "page": "61", "parenthetical": "quoting Wesley v. Bland, 92 N.C. App. 513, 515, 374 S.E.2d 475, 477 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0057-01" ] }, { "cite": "45 U.S.C. \u00a7 56", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2007, "opinion_index": 0 }, { "cite": "154 S.E. 847", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "850", "parenthetical": "quoting Richey, Federal Employer's Liability, (2 ed.), ch. 5, p. 33, sec. 20" } ], "opinion_index": 0 }, { "cite": "199 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602034 ], "year": 1930, "pin_cites": [ { "page": "402", "parenthetical": "quoting Richey, Federal Employer's Liability, (2 ed.), ch. 5, p. 33, sec. 20" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0397-01" ] }, { "cite": "470 U.S. 409", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299390 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "411" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/us/470/0409-01" ] }, { "cite": "151 F.3d 164", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11709857 ], "year": 1998, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/f3d/151/0164-01" ] }, { "cite": "45 U.S.C. \u00a7 51", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "538 U.S. 135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030532 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "140" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/us/538/0135-01" ] }, { "cite": "45 U.S.C. \u00a7\u00a7 51-60", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "35 Stat. 65", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 1147, "char_count": 27896, "ocr_confidence": 0.753, "pagerank": { "raw": 4.900072623341285e-08, "percentile": 0.3090765137272482 }, "sha256": "c518f572c262adb2f17564b625831fa641b64a080e19f7fe9cd2c555e0050255", "simhash": "1:ba6b7ff67b048e50", "word_count": 4519 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and JACKSON concur." ], "parties": [ "ROBERT E. CARLISLE, Plaintiff v. CSX TRANSPORTATION, INC., Defendant" ], "opinions": [ { "text": "ARROWOOD, Judge.\nCSX Transportation, Inc. (Defendant) appeals from an order granting Robert Carlisle\u2019s (Plaintiff\u2019s) motion for voluntary dismissal of his claim. We affirm in part and reverse in part.\nThe pertinent facts are summarized as follows: Plaintiff was bom in 1943 and is a resident of Hamlet, North Carolina. He was employed by Defendant railroad as a brakeman and conductor for thirty-seven years, from 1967 until 2004. Plaintiffs employment required him to walk on ballast, which is the base of crushed stone that supports train tracks. Plaintiff was twenty-four years old when he began working for Defendant. In his deposition, Plaintiff testified that as he aged from his 20\u2019s to his 50\u2019s, he found it increasingly uncomfortable to walk on the large and uneven ballast stone used by Defendant. In 1984, he suffered a knee injury that required surgery. In 2000, when he was 57, Plaintiff began experiencing significant knee pain, and consulted a physician. In January 2001 he was diagnosed with permanent damage to his knees caused by long-term exposure to walking on ballast.\nOn 11 December 2002, Plaintiff filed a complaint against Defendant in the state court of Virginia, in Portsmouth, Virginia. Plaintiff alleged that Defendant had been negligent in regards to the safety of the train yard work environment, specifically in its use of large and uneven ballast. He sought damages for injuries resulting from his many years of walking on the ballast. In June, 2004, about eighteen months after Plaintiff filed his lawsuit, Defendant moved to transfer the case to Richmond, Virginia. Thereafter, the parties continued to conduct discovery, and a trial date was set for October 2005, almost three years after Plaintiff filed his complaint. Shortly before the trial was to commence, Defendant moved to dismiss Plaintiffs claim for improper venue. On 7 October 2005 the trial court granted Defendant\u2019s motion and entered an order dismissing Plaintiff\u2019s complaint without prejudice. The dismissal order was entered on the condition that, if Plaintiff refiled by 15 December 2005, Defendant would not assert a statute of limitations defense based on time between the dismissal and Plaintiff\u2019s refiling the case.\nOn 29 November 2005 Plaintiff refiled his complaint in Scotland County, North Carolina. The case was scheduled for trial 27 August 2007. On 17 August 2007 Defendant filed a motion for summary judgment. Defendant asserted in relevant part that Plaintiff\u2019s claim had accrued at some time \u201cin the 1980s and 1990s\u201d and that the statute of limitations expired before Plaintiff filed his original complaint in December 2002.\nA hearing was conducted on Defendant\u2019s motion on 27 August 2007. Defendant\u2019s summary judgment argument was based on excerpts from Plaintiff\u2019s deposition wherein Plaintiff testified that he had no trouble walking on the large uneven ballast in his 20\u2019s and 30\u2019s, but that in his 40\u2019s and 50\u2019s it became more difficult and caused an \u201cabnormal\u201d feeling in his knees. Plaintiff\u2019s counsel argued that this testimony showed only that, as Plaintiff aged, he experienced more discomfort. A complicating factor was Plaintiffs traumatic knee injury and surgery in the 1980\u2019s.\nThe trial court took the matter under advisement overnight. The next day Plaintiff asked the trial court \u201cto enter an order allowing us to voluntarily dismiss this case without prejudice pursuant to [N.C. Gen. Stat. \u00a7 1A-1,] Rule 41(a).\u201d The Defendant opposed Plaintiff\u2019s motion. The trial court stated that \u201cthe Court will grant the motion. I believe in people having their day in court whenever possible. So, I\u2019ll grant your motion.\u201d The court\u2019s order, rendered in open court on 28 August 2007, was reduced to writing and filed on 12 December 2007. The order tolled the statute of limitations from the time Plaintiff first filed suit in Virginia, and allowed Plaintiff a year in which to refile. From this order, Defendant has appealed.\nStandard of Review\nPlaintiff filed suit under the \u201cFederal Employers\u2019 Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. \u00a7\u00a7 51-60, [which] makes common carrier railroads liable in damages to employees who suffer work-related injuries caused \u2018in whole or in part\u2019 by the railroad\u2019s negligence.\u201d Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 140, 155 L. Ed. 2d 261, 271 (2003). \u201c[Plaintiff] filed this case in state court under the FELA, 45 U.S.C. \u00a7 51 et seq., which confers concurrent federal and state jurisdiction over FELA claims.\u201d Skives v. CSX Transp., 151 F.3d 164, 166 (4th Cir. 1998).\n\u201cAs a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.\u201d St. Louis S. W. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 84 L. Ed. 2d 303, 306 (1985). \u201c \u2018The decision of the United States Supreme Court upon the proper interpretation, construction, and effect of statutes regulating or affecting interstate and foreign commerce is conclusive upon all other tribunals when the same matters are called in question. And the decisions of the Federal courts are to be followed by the State courts, in the construction of the act.\u2019 \u201d Pyatt v. Southern R. Co., 199 N.C. 397, 402, 154 S.E. 847, 850 (1930) (quoting Richey, Federal Employer\u2019s Liability, (2 ed.), ch. 5, p. 33, sec. 20) (citations omitted).\nOur decision in this case requires an understanding of the relationship between FELA and N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (2007), as they pertain to the statute of limitations. The statute of limitations for an action brought under FELA is three years. 45 U.S.C. \u00a7 56 (2007) (\u201cNo action shall be maintained under this act [45 USCS \u00a7\u00a7 51 et seq.] unless commenced within three years from the day the cause of action accrued.\u201d). Defendant argues that in its order granting Plaintiffs motion for voluntary dismissal, the trial court \u201cerred in extending the statute of limitations under [FELA].\u201d We agree in part and disagree in part.\nRule 41(a) states in pertinent part that:\n(1) . . . [An action] may be dismissed by the plaintiff without order of court ... at any time before the plaintiff rests his case[.]... If an action commenced within the time prescribed therefor, ... is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal[.]\n(2) Except as provided in subsection (1) . . . [an action] shall not be dismissed . . . save upon order of the judge and upon such terms and conditions as justice requires. Unless otherwise specified . . . dismissal under this subsection is with- \u2022 out prejudice. If an action commenced within the time prescribed therefor ... is dismissed without prejudice under this subsection, a new action . . . may be commenced within one year after such dismissal unless the judge . . . [specifies] a shorter time.\nThus, under Rule 41, after resting his case, a party loses the unfettered right to a voluntary dismissal available under Rule 41(a)(1). Further:\n\u201cFor purposes of summary judgment motions, this Court holds that the record must show that plaintiff has been given the opportunity at the hearing to introduce any evidence relating to the motion and to argue his position. Having done so and submitted the matter to the [trial court] for determination, plaintiff will then be deemed to have \u2018rested his case\u2019 for the purpose of summary judgment and will be precluded thereafter in dismissing his case pursuant to Rule 41 during the pendency of the summary judgment motion.\u201d\nAlston v. Duke University, 133 N.C. App. 57, 61, 514 S.E.2d 298, 301 (1999) (quoting Wesley v. Bland, 92 N.C. App. 513, 515, 374 S.E.2d 475, 477 (1988)). However, a party may still obtain a voluntary dismissal if ordered by the trial court under Rule 41(a)(2). In the instant case, it is undisputed that Plaintiff moved for dismissal after resting his case; consequently, it is governed under North Carolina law by Rule 41(a)(2).\nThe determination of whether to grant a Rule 41 motion and under what conditions the motion should be granted is in the trial court\u2019s discretion. See, e.g., Smith v. Williams, 82 N.C. App. 672-73, 673, 347 S.E.2d 842, 844 (1986) (\u201cDismissals entered pursuant to [Rule 41(a)(2)] are within the discretion of the trial court which may, in the further exercise of its discretion, dismiss with or without prejudice.\u201d). Accordingly, as a matter of North Carolina common law, a trial court has discretion to effectively extend the period of time available to file beyond the statute of limitations, by granting a plaintiff\u2019s motion for voluntary dismissal without prejudice. See, e.g., Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 594, 528 S.E.2d 568, 571 (2000):\n\u201c[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).\u201d \u201cIf the action was originally commenced within the period of the applicable statute of limitations, it may be recommenced within one year after the dismissal, even though the base period may have expired in the interim.\u201d Thus, . . . under Rule 41, a plaintiff may \u201cdismiss an action that originally was filed within the statute of limitations and then refile the action after the statute of limitations ordinarily would have expired.\u201d\n(quoting Whitehurst v. Virginia Dare Transport. Co., 19 N.C. App. 352, 356, 198 S.E.2d 741, 743 (1973); 2 Thomas J. Wilson, II & Jane M. Wilson, McIntosh North Carolina Practice and Procedure \u00a7 1647, at 69 (Supp. 1970); and Clark v. Visiting Health Prof'ls, 136 N.C. App. 505, 508, 524 S.E.2d 605, 607 (2000)).\nHowever, a different rule applies to cases filed under FELA. The leading case on this subject is Burnett v. New York Central R. Co., 380 U.S. 424, 13 L. Ed. 2d 941 (1965). In Burnett, the plaintiff filed a FELA action \u201cin the Common Pleas Court of Hamilton County, Ohio\u201d which was dismissed on the defendant\u2019s motion for improper venue. Id. at 424, 13 L. Ed. 2d at 943. The plaintiff promptly filed an identical claim in the proper federal court; however, although his original suit was timely, by the time his claim was dismissed for improper venue and then refiled, the statute of limitations had expired. The federal district court judge dismissed plaintiff\u2019s claim, and the United States Supreme Court reversed.\nIn Burnett, the Supreme Court observed that it previously had \u201cexpressly held [that] the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. . . . [T]he basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.\u201d Id. at 427, 13 L. Ed. 2d at 945. The Court held that the plaintiffs timely filing of a FELA claim had tolled the statute of limitations during the pendency of that action:\nIn order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, [and] the Act itself[.] . . . [We] conclude that it effectuates the basic congressional purposes in enacting this humane and remedial Act ... to hold that when a plaintiff begins a timely FELA action in a state court of competent jurisdiction ... and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action.\nId. at 427-28, 13 L. Ed. 2d at 945.\nThe Court rejected the plaintiffs argument that the FELA statute of limitations incorporated the Ohio Saving Statute, holding that \u201c[t]o allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States.\u201d\nIn sum, when a trial court enters an order allowing voluntary dismissal of a FELA claim, the court cannot incorporate the saving provision of Rule 41. However, the trial court may equitably toll the statute of limitations when appropriate, without needing to rely on Rule.41.\nAgainst this backdrop, we consider the order entered in the present case, which states that:\n. . . Plaintiff, with the Defendant\u2019s objection noted, hereby voluntarily dismisses this action, pursuant to Rule 41(a) of the Rules of Civil Procedure, without prejudice. The parties agree that this is the first dismissal of these claims for purposes of Rule 41. The court rules that any statute of limitations for the plaintiff\u2019s claims in this cause are tolled from the date of the institution of the suit filed in the Circuit Court for the City of Portsmouth, Virginia, on December 11, 2002, Law No. 02-3623, provided the plaintiff refiles his Complaint in this cause within one year of the date that this Order is entered. Any statute of limitations defenses previously filed herein that existed at the time suit was filed in the Circuit Court of the City of Portsmouth, Virginia Law 02-3623, are preserved.\nDefendant does not argue that the trial court abused its discretion in its general decision to grant Plaintiffs motion for a dismissal, and we find no abuse of discretion. We next evaluate the trial court\u2019s rulings on the statute of limitations.\nThe court\u2019s order tolls the statute of limitations for a time period that is best analyzed in four segments:\n1. The time period between December 2002, when Plaintiff filed suit in Virginia, until the case was dismissed for improper venue.\n2. The time period between the dismissal of the Virginia case and refiling in North Carolina.\n3. The time that the case was pending in North Carolina until the trial court allowed Plaintiff\u2019s motion for voluntary dismissal without prejudice.\n4. The additional year from the date the trial court entered its order allowing dismissal.\nWe first consider the period between the initial filing of Plaintiff\u2019s claim and its dismissal for improper venue. Burnett held that, where a plaintiff files a FELA action that is later dismissed for improper venue, the FELA statute of limitations may be equitably tolled during the pendency of the original action. As that is Plaintiff\u2019s situation, we conclude that under Burnett the trial court properly tolled the statute of limitations from the date that Plaintiff first filed suit in Virginia until the date the case was dismissed in Virginia for improper venue. Accordingly, this part of the trial court\u2019s order should be affirmed.\nThe Virginia trial court\u2019s order dismissing Plaintiff\u2019s action for improper venue was conditioned on Defendant\u2019s not raising a statute of limitations defense for the period between the dismissal and Plaintiff\u2019s refiling his case. Defendant does not argue that this was improper. We conclude that this part of the trial court\u2019s also order should be affirmed.\nWe next examine the trial court\u2019s tolling of the statute of limitations during the pendency of the case in North Carolina. As discussed above, although Rule 41 could not be used to toll the FELA statute of limitations for the time that Plaintiffs case was pending in North Carolina, the trial court had the authority to toll the FELA statute of limitations if appropriate. See Burnett, 380 U.S. at 427, 13 L. Ed. 2d at 944-45 (noting that United States Supreme \u201cCourt has expressly held [that] the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it tnay be extended beyond three years.\u201d).\nIn the instant case, the court did not state the reason for its order or make findings of fact. However, \u201c[t]his Court has stated, \u2018absent a specific request made pursuant to Rule 52(a)(2), a trial court is not required to either state the reasons for its decision or make findings of fact showing those reasons.\u2019 When \u2018there is no suggestion in the record that defendant asked for findings of fact or conclusions of law to be included in the trial court\u2019s order, the court\u2019s failure to do so is not reversible error.\u2019 \u201d Couch v. Bradley, 179 N.C. App. 852, 855, 635 S.E.2d 492, 494 (2006) (quoting Strickland v. Jacobs, 88 N.C. App. 397, 399, 363 S.E.2d 229, 230 (1988); and Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 494, 586 S.E.2d 791, 798 (2003)).\nMoreover, where \u201ca trial court has reached the correct result, the judgment will not be disturbed on appeal even where a different reason is assigned to the decision.\u201d Eways v. Governor\u2019s Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990) (citations omitted). \u201cWhere no findings are made, proper findings are presumed, and our role on appeal is to review the record for competent evidence to support these presumed findings.\u201d Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217-18 (2000). Accordingly, we uphold a trial court\u2019s order if it can be sustained on a valid legal basis for which the record contains competent evidence. In the instant case, we conclude that the record contains evidence supporting the presumed findings of fact necessary to support equitable tolling of the FELA statute of limitations for the period when Plaintiff\u2019s case was pending in North Carolina.\nAs discussed above, we apply federal law to the issue of whether equitable tolling of the FELA statute of limitations was appropriate:\nThe three-year limitations period in the FELA is a condition of liability constituting a substantial part of the right created. Hence,. federal law controls the application of the limitations period.\nNoakes v. AMTRAK, 312 Ill. App. 3d 965, 967, 729 N.E.2d 59, 62 (2000) (internal quotation marks and citations omitted). In Burnett, supra, the Court set out its rationale for equitable tolling of the FELA statute of limitations:\nStatutes of limitations are primarily designed to assure fairness to defendants. . . . This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiffs rights. . . . [There are considerations in favor of tolling the federal statute of limitations in this case[.] . . . Petitioner here did not sleep on his rights but brought an action within the statutory period in a state court of competent jurisdiction. . . . Respondent could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy[.]\nThis Court has applied the reasoning of Burnett-.\n\u201cThe primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend.\u201d . . . \u201cStatutes of limitation . . . are practical and pragmatic devices to spare the courts from litigation of stale claims.\u201d They stimulate activity, punish negligence and promote repose by giving security and stability to human affairs. However, this policy of repose is often outweighed \u201cwhere the interests of justice require vindication of the plaintiffs rights.\u201d\nBruce v. Bruce, 79 N.C. App. 579, 583, 339 S.E.2d 855, 858 (1986) (quoting 51 Am. Jur. 2d Limitations of Actions Section 17 (1970); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 1635 (1945); and Burnett, 380 U.S. at 428, 13 L. Ed. 2d at 945)) (other citation omitted). Examination of the record reveals the presence of the considerations identified by the Burnett Court as warranting equitable tolling of the statute of limitations.\nFirst, Plaintiff did not \u201csit on his rights.\u201d At the hearing on Defendant\u2019s summary judgment motion, Plaintiff argued that the cause of action accrued in January 2001, when he was diagnosed with osteoarthritis caused by years of walking on large ballast. Plaintiff filed his claim in December 2002. Assuming, arguendo, that Plaintiff accurately identified when the statute of limitations began to run, his claim was timely filed. Further, Plaintiff promptly refiled his case following dismissal for improper venue. Nor did he seek a voluntary dismissal in response to an unsuccessful attempt to continue the case.\nIndeed, it is Defendant\u2019s dismissal motions that have delayed the resolution of Plaintiff\u2019s claims. For example, Defendant\u2019s summary judgment motion, which is based on a June 2005 deposition, asserts that the statute of limitations began to run in \u201cthe 1980s or 1990\u2019s.\u201d However, Defendant delayed filing its motion until just before trial, more than four years after Plaintiff filed suit and over two years after Plaintiff was deposed. Additionally, there is a relationship between Defendant\u2019s motion to dismiss for improper venue and its motion for summary judgment:\n1. Plaintiff filed suit in December 2002. Eighteen months later, Defendant moved to transfer the case to Richmond. Thereafter, Plaintiff might reasonably believe that the trial would be conducted in Virginia.\n2. In October 2005, less than a month before trial and almost three years after Plaintiff filed suit, Defendant moved to dismiss Plaintiff\u2019s case for improper venue.\n3. Plaintiff promptly refiled suit in North Carolina, but Defendant did not move for summary judgment until August 2007, just before the trial was to start and more than four and a half years after Plaintiff filed suit.\n4. Defendant\u2019s summary judgment motion was based on excerpts from Plaintiff\u2019s deposition. The deposition would not have been admissible in Virginia, where the case was originally scheduled for trial.\nThus, Defendant\u2019s summary judgment motion was only possible because it waited until after discovery was completed in Virginia before moving for dismissal for improper venue, then filed the summary judgment motion in a jurisdiction where the deposition would be admissible.\nMoreover, Plaintiff explicitly raised the issue of the admissibility of Plaintiff\u2019s deposition. Plaintiff\u2019s counsel told the trial court that the Plaintiff\u2019s deposition was taken in Virginia, where a deposition cannot be used as the basis for a summary judgment motion. Because Plaintiff\u2019s counsel expected the trial to be conducted in Virginia, he had not examined Plaintiff to clarify Plaintiff\u2019s responses to some of Defendant\u2019s questions. The trial court told the parties it was \u201cconcerned about this statute argument they\u2019re making because of the deposition testimony\u201d asking Plaintiff\u2019s counsel if it were not true that he \u201canticipated that not being used in trial?\u201d Plaintiff\u2019s counsel, stated:\n[T]he rules in Virginia are clear that a deposition such as this one, a Discovery deposition, cannot be used to attack the lawsuit itself. It\u2019s prohibited. So, when defense counsel finishes examining your plaintiff, we normally do not ask that plaintiff any questions!)]\nIf we had, at that time, known that [the Virginia trial judge] was going to throw the case out and rule that it should be in North Carolina, and knowing your rules here, we certainly would have asked [Plaintiff] . . . [\u201c]Did you know what was causing the pain to your knees?\u201d\nI would ask the Court to at least consider that and let [Plaintiff] be heard since all of these questions were defense cross-examination basically, aimed at one thing.\nThus, regardless of whether Defendant intended to mislead Plaintiff about the trial\u2019s venue, the effect of Defendant\u2019s last minute dismissal motion was to provide it with ammunition for a later summary judgment motion. The statute of limitations \u201cexists \u2018to encourage the prompt presentation of claims\u2019 against [Defendant].\u2019 It does not exist to reward the [defendant] for deft legal maneuvering. [Defendant] was put on notice to defend against this action in [December] of [2002] and at all times since the filing of the complaint . . . has been aware that [Plaintiff] was pursuing his legal rights.\u201d Stanfill v. United States, 43 F. Supp. 2d 1304, 1311 (M.D. AL 1999) (quoting United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 266 (1979)).\nWe also find no indication that equitable tolling of the statute of limitations prejudiced Defendant. Significantly, unless the FELA statute of limitations is equitably tolled for the period of time that the case was pending in North Carolina, Plaintiff will lose, not only his \u201cday in court\u201d to determine the substantive issues raised in his complaint, but also the opportunity to meet Defendant\u2019s summary judgment motion with testimony or affidavits that clarify some of Plaintiff\u2019s deposition responses and address the issue of the onset of his condition.\n\u201cThe doctrine of equitable tolling preserves a plaintiff\u2019s claims when strict application of the statute of limitations would be inequitable.\u201d Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995) (citation omitted). In the instant case, we conclude that the evidence supports equitable tolling of the statute of limitations during the time the case was pending in North Carolina, and that this part of the trial court\u2019s order should be affirmed.\nFinally, we consider the trial court\u2019s ruling tolling the statute of limitations for up to a year after the entry of its order. We discern no basis for this part of the court\u2019s order other than the application of Rule 41. Accordingly, the trial court erred by tolling the statute of limitations after its order became final, and this part of the trial court\u2019s ruling must be reversed.\nThe \u201cdefendant\u2019s action in taking an appeal from the dismissal order tolled the running of the [statute of] limitation[s] until final appellate action was taken[.]\u201d West v. Reddick, Inc., 302 N.C. 201, 204, 274 S.E.2d 221, 224 (1981). N.C.R. App. P. 32 provides in pertinent part that:\n(a) . . . [T]he mandate of the court consists of certified copies of its judgment and of its opinion].] ... The mandate is issued by its transmittal from the clerk of the issuing court to the clerk ... of the tribunal from which appeal was taken to the issuing court.\n(b) Unless a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk.\nWe conclude that the record supports the equitable tolling of the statute of limitations during the time that Plaintiff\u2019s case was pending in North Carolina, and that it continues to be tolled until the issuance of our mandate in this case. Thereafter, the statute of limitations begins to run again. For the reasons discussed above, we conclude that the trial court\u2019s order must be\nAffirmed in part and reversed in part.\nJudges BRYANT and JACKSON concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "Moody, Strople, Kloeppel, Basilone & Higginbotham, Inc., by Claude W. Anderson, Jr., and Willard J. Moody, Sr., Pro Hac Vice; Moser, Gamer, Bmner & Wansker, P.A., by Jerry L. Bmner; and Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Plaintiff-Appellee.", "Millberg, Gordon & Stewart, P.L.L.C., by Frank J. Gordon and Seth C. Turner, for Defendant-Appellant." ], "corrections": "", "head_matter": "ROBERT E. CARLISLE, Plaintiff v. CSX TRANSPORTATION, INC., Defendant\nNo. COA08-43\n(Filed 4 November 2008)\nRailroads\u2014 negligence action \u2014 voluntary dismissal \u2014 tolling of statute of limitations\nThe trial court erred in part by granting a voluntary dismissal without prejudice in a negligence action by a railroad employee arising from a workplace injury. The action was filed first in Virginia, dismissed without prejudice for improper venue, and refiled in North Carolina. Under the Federal Employees Liability Act (FELA), the court cannot incorporate the saving provision of N.C.G.S. \u00a7 1A-1, Rule 41, but may equitably toll the statute of limitations when appropriate without needing to rely on Rule 41. Here, the court erred by tolling the statute of limitations for a year after entry of the voluntary dismissal order with no basis other than the application of Rule 41. Tolling the statute of limitations for other periods (such as the pendency of the original Virginia action or subsequent N.C. action) was proper under FELA.\nAppeal by Defendant from order entered 12 December 2007 by Judge Karl Adkins in Scotland County Superior Court. Heard in the Court of Appeals 10 September 2008.\nMoody, Strople, Kloeppel, Basilone & Higginbotham, Inc., by Claude W. Anderson, Jr., and Willard J. Moody, Sr., Pro Hac Vice; Moser, Gamer, Bmner & Wansker, P.A., by Jerry L. Bmner; and Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson, for Plaintiff-Appellee.\nMillberg, Gordon & Stewart, P.L.L.C., by Frank J. Gordon and Seth C. Turner, for Defendant-Appellant." }, "file_name": "0509-01", "first_page_order": 541, "last_page_order": 552 }