An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1060
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


BARBIE NADINE SAWYER


      V.                                       Perquimans County
                                               No. 07 CVS 25
STEPHEN ANTHONY RUIZ



      Appeal by plaintiff from order entered 25 March 2013 by

Judge Cy A. Grant, Sr. in              Perquimans     County Superior Court.

Heard in the Court of Appeals 19 February 2014.


      Joseph H. Forbes, Jr. for plaintiff-appellant.

      Donald C. Prentiss for defendant-appellee.


      HUNTER, Robert C., Judge.

      Plaintiff Barbie Nadine Sawyer appeals the order granting

defendant Stephen Ruiz’s motion to dismiss after the trial court

concluded that plaintiff’s action was barred by the statute of

limitations.       Plaintiff argues on appeal that the trial court

erred in granting defendant’s motion to dismiss because: (1)

plaintiff’s voluntary dismissal of her claim entitled her to a

one   year    tolling    of   the    statute    of   limitations      under    Rule
                                            -2-
41(a)(1);     and      (2)     plaintiff          timely      served       defendant      by

publication.

    After careful review, we affirm the trial court’s order.

                                          Background

    This      action    arises      out     of    a   claim      for     personal    injury

damages     allegedly        sustained      by     plaintiff        in    an   automobile

collision with defendant on 10 December 2000.                           On 7 April 2003,

plaintiff     filed     suit       in   Perquimans         County        Superior    Court.

Plaintiff     attempted       to    serve     defendant       by    sheriff,        but   the

summons was returned unserved with a notation indicating that

defendant no longer lived at the address on the summons and his

whereabouts were “unknown.”

    After the initial summons was returned, plaintiff had the

clerk issue twelve alias and pluries summonses at least every 90

days,   the    last    of     which     was      issued     on     18     November    2005.

Defendant was never served with any of the twelve alias and

pluries summonses.

    On 8 February 2006, plaintiff filed a voluntary dismissal

without prejudice in Perquimans County.                          On 7 February 2007,

within one year of taking the voluntary dismissal, plaintiff

refiled her complaint (the “2007 complaint”).                          Plaintiff did not

attempt to serve defendant personally with the 2007 complaint;
                                            -3-
instead, plaintiff attempted to serve defendant by publication.

Plaintiff filed an affidavit from the newspaper attesting to

plaintiff’s publication of the notice of service by publication

with    the       trial    court.         However,    plaintiff     never    filed    an

affidavit as required by Rule 4(j1) showing the circumstances

that warranted the use of service by publication.

       On     8     February        2012,      defendant’s    automobile        insurer

intervened in this action and filed motions to dismiss for lack

of jurisdiction and expiration of the three year statute of

limitations.         The matters came on for hearing on 18 March 2013.

At the hearing, plaintiff offered to file the affidavit required

by Rule 4(j1), but the trial court denied her request.

       On   25     March     2013,    the    trial    court   granted       defendant’s

motion to dismiss for failure to obtain personal jurisdiction

over    defendant         and     expiration    of   the   three-year       statute   of

limitations.         Plaintiff timely appealed.

                                            Arguments

       Plaintiff          first    argues   that     the   trial    court     erred    in

granting defendant’s motion to dismiss because she was entitled

to a one year tolling of the statute of limitations under Rule

41(a)(1)      after       filing    the   voluntary     dismissal.       Accordingly,

since   she       filed     the    2007   complaint     within     one   year   of    the
                                          -4-
voluntary dismissal, her claim was not barred by the statute of

limitations.        We disagree.

       Rule 41(a)(1) provides in relevant part that: “If an action

commenced     within    the   time   prescribed      therefor,      or    any     claim

therein, 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.C.   Gen.    Stat.    §    1A-1,     Rule

41(a)(1)      (2013).         However,      this   Court      has       limited     the

application of Rule 41(a)(1) to those cases in which proper

service has been accomplished prior to a                     plaintiff filing a

voluntary dismissal. Specifically, in Hall v. Lassiter, 44 N.C.

App. 23, 26-27, 260 S.E.2d 155, 157 (1979), this Court held that

a voluntarily-dismissed suit based on defective service does not

toll the statute of limitations                 under Rule 41(a)(1).              Later

cases have held that not only does defective service prevent the

tolling of the statute of limitations under Rule 41(a)(1), but

also   that    “a    plaintiff     must   obtain    proper    service      prior    to

dismissal in order to toll the statute of limitations for a

year” under Rule 41(a)(1).            Camara v. Gbarbera, 191 N.C. App.

394, 397, 662 S.E.2d 920, 922 (2008); Lawrence v. Sullivan, 192

N.C. App. 608, 621, 666 S.E.2d 175, 182 (2008).                    In other words,

our caselaw is clear that a plaintiff is not entitled to the one
                                            -5-
year tolling under Rule 41(a)(1) if service of the defendant was

defective or did not occur at all.

      Plaintiff argues that subsequent cases have misinterpreted

the holding in Hall and asks us to “overrule” them.                              However,

“a panel of the Court of Appeals is bound by a prior decision of

another panel of the same court addressing the same question,

but in a different case, unless overturned by an intervening

decision from a higher court.”                    See In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989).                         As a result, we are

bound   by    Camara     and     Lawrence     where       this   Court    held    that    a

plaintiff     who   does    not     serve    a    defendant       prior    to    taking   a

voluntary dismissal is not entitled to the one year tolling of

the statute of limitations under Rule 41(a)(1).

      Here, since it is undisputed that plaintiff never served

defendant prior to taking the voluntary dismissal, plaintiff was

not entitled to a one year tolling of the statute of limitations

under Rule 41(a)(1).             Consequently, the statute of limitations

ran   on   her   action     10    December        2003,    three       years    after   the

accident, prior to her filing the 2007 complaint.                                Although

plaintiff kept her original action alive by having alias and

pluries      summonses     issued    every        90   days,     her    filing    of    the

voluntary dismissal discontinued her action; when she refiled
                                      -6-
her complaint over six years after the incident giving rise to

the   claim,      the   three-year   statute     of   limitations   had   run.

Therefore, the trial court did not err in dismissing her 2007

complaint based on the statute of limitations.

      Plaintiff next argues that she properly served defendant

with the 2007 complaint by publication.               However, as discussed,

the statute of limitations ran on her action prior to filing the

2007 complaint.         Accordingly, we need not address this argument

on appeal.

                                     Conclusion

      For   the    following   reasons,     we   affirm   the   trial   court’s

order.



      AFFIRMED.

      Judges GEER and McCULLOUGH concur.

      Report per Rule 30(e).
