Opinion
[Copyrighted Material Omitted]
Larry M. Coe, Wilmingtom, and Baileys&sDixon, L.L.P. by Gary S. Parsons and John M. Kirby, Raleigh, for plaintiffs-appellants.
Baker, Jenkins, Joness&sDaly, P.A. by R.B. Daly, Jr. and Kevin N. Lewis, Ahoskie, for defendants-appellees John L. Remington, M.D., and Delaney Radiologists, P.A.
Harris, Shieldss&sCreech, P.A. by Thomas E. Harris and R. Brittain Blackerby, New Bern, for defendant-appellee William P. Parker, Jr., M.D.
EAGLES, Judge.
We note at the outset that each defendant's "motion to quash issuance and service of process" fails to cite "the rule number or numbers under which [defendants are] proceeding." General Rules of Practice for the Superior Court, Rule 6 (1985). While this defect itself at times may be fatal, Sherman v. Myers, 29 N.C.App. 29, 30, 222 S.E.2d 749, 750, disc. review denied, 290 N.C. 309, 225 S.E.2d 830 (1976), the trial court in its discretion did not find it so here. We treat each defendant's motion as one challenging the sufficiency of process pursuant to Rule 12, and we review the trial court's ruling accordingly. See Howard v. Ocean Trail Convalescent Center, 68 N.C.App. 494, 494, 315 S.E.2d 97, 98 (1984). We note also that defendants concede in their briefs that we should review their motions to quash as Rule 12(b) motions.
Plaintiff argues that the trial court erred in quashing plaintiff's issuance and service of process. We agree.
G.S. 1A-1, Rule 4, governs the issuance and service of process in civil cases. In Smith v. Starnes, 317 N.C. 613, 617-18, 346 S.E.2d 424, 427 (1986), our Supreme Court applied G.S. 1A-1, Rule 4, under facts similar to the instant case and explained as follows:
We do not believe that a correct interpretation of Rule 4 requires delivery of the summons to the sheriff within thirty days of its issuance in order that the summons may later serve as a basis for the issuance of an alias or pluries summons. Although section (a) provides that the complaint and summons shall be delivered to the sheriff of the county where process is to be made, the rule provides no sanction for a party's failure to make such a delivery. Section (c) expressly provides that the sheriff's failure to make service within the time allowed under the statute shall not invalidate the summons. Nor will the sheriff's failure to return an unserved summons invalidate the summons. N.C.G.S. § 1A-1, Rule 4(c) (1983). Section (e) controls in determining when an action is discontinued. It provides that a summons is discontinued as to any defendant not served within the time allowed when there is "neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d)...." There is no provision in section (e) concerning a party's failure to deliver the summons to the sheriff for service. In light of the clear language of Rule 4(e) on the discontinuance of a summons, there is no justification for construing the rule to require delivery of the summons to the sheriff within thirty days of its issuance to keep the summons alive.
Id. This language is controlling. The Supreme Court makes no mention of any requirement under Rule 4 that plaintiffs must prove good faith, excusable neglect or even give any reason at all to justify their failure to promptly deliver the summons to the Sheriff. In fact, the Starnes court specifically states that Rule 4 "provides no sanction for a party's failure to make such a delivery." Id. at 617, 346 S.E.2d at 427. Accordingly, we find no fatal defect in plaintiff's issuance and service of process pursuant to Rule 4.
Defendants nonetheless argue that Starnes is distinguishable. Specifically, defendants argue that the following dicta limits Starnes' applicability to cases where the trial court made no finding of bad faith:
There is no evidence or contention in this case that the complaint and summons were filed or issued in bad faith or that they were interposed for delay or otherwise subject to dismissal as a sham and false pleading pursuant to Rule 11(a) of the North Carolina Rules of Civil Procedure.... Nor are we presented with a motion for involuntary dismissal for failure of the plaintiff to prosecute an action pursuant to Rule 41(b).
Starnes, 317 N.C. at 615-16, 346 S.E.2d at 426 (citing Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986)). We are not persuaded by defendants' argument, however, because we conclude that this dicta serves only to remind us that a different result may be required where the dispositive motion is one pursuant to either Rule 11(a) or Rule 41(b). It is clear that the "bad faith" referred to in Starnes relates only to the Rule 11(a) good faith standard; it does not create a separate good faith standard under Rule 4. That this interpretation is correct is clear upon reading Estrada (the authority cited by the Starnes court), as Estrada discusses bad faith only in the context of a Rule 11 motion. Estrada v. Burnham, 316 N.C. 318, 324-26, 341 S.E.2d 538, 542-43 (1986)
Defendant's final argument, and the argument erroneously adopted by the trial court, is that the instant case is controlled by Sellers v. High Point Mem. Hosp., 97 N.C.App. 299, 388 S.E.2d 197, disc. review denied, 326 N.C. 598, 393 S.E.2d 882 (1990), instead of Starnes. Here again, we are not persuaded because we conclude that Sellers is distinguishable on its face. In Sellers, we reviewed the trial court's grant of defendant's motion to dismiss pursuant to Rule 41(b). Sellers, 97 N.C.App. at 302-03, 388 S.E.2d at 198-99. Here, no Rule 41(b) motion was ever made and absent a motion pursuant to either Rule 41(b) or Rule 11(a), we conclude that Starnes is controlling. Accordingly, we conclude that the order of the trial court quashing plaintiff's issuance and service of process must be reversed. We need not address plaintiff's remaining assignments of error.
Reversed and remanded.
McGEE, J., concurs.
LEWIS, J., concurs with separate opinion.
LEWIS, Judge, concurring.
While I feel bound by the decision in Starnes to concur, I do not believe the result we reach in this case nurtures good practice. Accordingly, I urge the Supreme Court to reconsider this issue.
Allowing a party to obtain issuance of a summons, make no effort at service, and then obtain a subsequent alias and pluries summons and thereby additional months, makes a mockery of the statutes of limitation. This is true whether the delay be due to negligent oversight or counsel's tactics. In the present case, defendants were served four years and seven months after their alleged negligent acts. Plaintiffs, in effect, tacked on over a year and a half to the original statute of limitations.
This behavior should not be condoned. I would require some reasonable effort at service be made by one of the statutory methods in order to keep a summons viable. Only when such reasonable effort is shown, should an alias and pluries summons be deemed acceptable to extend the time for service. If no effort at service has been undertaken, the summons should expire.