North Carolina Lawyers Weekly
The trial court could not retroactively extend time for issuance of an alias and pluries summons once an action had been discontinued for failure to perfect service.
On July 31, 2020, plaintiff filed a legal malpractice complaint against defendants, arising from legal services that were provided “in the spring of 2017.” Although the statute of limitations would have normally expired on plaintiff’s claim by May 7, 2020 at the latest, the limitations period was extended by order of the chief justice to July 31. However, plaintiff never perfected service of the summons on defendants. The court clerk issued an alias and pluries summons on November 3, 2020, 95 days after the issuance of the original summons. The alias and pluries summons was eventually received by defendants on November 14.
Defendants moved to dismiss the action, arguing that the timing of the alias and pluries summons constitute a break in the chain such that plaintiff’s action should be deemed as having commenced on November 3, outside of the limitations period. The trial court granted defendants’ motion. Plaintiff appealed, arguing that the trial court should have extended the time for issuance of the alias and pluries summons or alternatively should have applied emergency directives issued by the chief justice to find the alias and pluries summons timely.
We affirm the dismissal of plaintiff’s complaint. We hold that while a trial court has discretion to extend the time for service of a summons after it becomes dormant but before expiration of the case, it cannot retroactively extend the time for issuance of an alias and pluries summons after the action has been discontinued for lack of service. We note that plaintiff’s action was discontinued 90 days after the complaint was filed and that the alias and pluries summons was issued after the discontinuance. Thus, we find that the issuance of the summons constituted the commencement of a new action, rendering plaintiff’s claim untimely under the statute of limitations. Finally, we find that plaintiff had failed to preserve its claim regarding the applicability of the emergency directives for appellate review.
Concurrence
(Allegra Collins, J.): The emergency directive issued in response to the COVID-19 pandemic, by its plain language, only applies to filings, not summonses, and therefore did not support the extension of time for the issuance of a summons to keep the chain of summonses alive for statute of limitations purposes.
Affirmed.
Hedgecock Lumber Company v. Apple (Lawyers Weekly No. 012-105-22, 19 pp.) (Hunter Murphy, J.) (Allegra Collins, J., concurring in the result only) Appealed from Forsyth County Superior Court (Richard S. Gottlieb, J.) R. Thompson Wright for plaintiff; J. Chad Bomar for defendants. 2022-NCCOA-174
