Upchurch v. Harp Builders ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-301
No. COA21-472
Filed 3 May 2022
New Hanover County, No. 18 CVS 4345
FARRON JEROME UPCHURCH, Plaintiff,
v.
HARP BUILDERS, INC. and VALENTINE JOSEPH CLEARY, Defendants.
Appeal by Defendant from order entered 22 April 2021 by Judge Phyllis
Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 9
February 2022.
Ennis, Baynard, Morton, Medlin & Brown, PA, by Maynard M. Brown, for
Plaintiff-Appellee.
Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Andrew J. Hanley, for
Defendants-Appellants.
JACKSON, Judge.
¶1 Defendant Valentine Joseph Cleary (“Defendant”) appeals from an order
granting Plaintiff Farron Jerome Upchurch’s (“Plaintiff”) motion for summary
judgment on Defendant’s counterclaim and dismissing his counterclaim with
prejudice. After careful review, we affirm.
I. Background
¶2 This case involves a motor vehicle accident that occurred between the parties
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on 19 December 2015 in New Hanover County off Interstate 40. On 19 December
2018, Plaintiff filed a complaint alleging that Defendant was at fault and seeking
damages for personal injuries sustained in the accident. On 20 December 2018,
Defendant filed an answer and counterclaim alleging that Plaintiff was at fault and
seeking damages for personal injuries sustained in the accident. On 13 September
2019, Defendant filed an amended answer and counterclaims. On 27 February 2020,
Plaintiff answered, asserting the defenses of contributory negligence and gross
negligence. On 7 December 2020, Plaintiff filed an amended answer to Defendant’s
amended counterclaim, moving to dismiss the counterclaim pursuant to N.C. Gen.
Stat. § 1-52(16) on the ground it was barred by the three-year statute of limitations.
¶3 On 18 December 2020, Plaintiff moved for judgment on the pleadings, or in the
alternative, for summary judgment on the ground that Defendant’s counterclaim was
filed after the statute of limitations had run. On 5 January 2021, the Honorable R.
Kent Harrell ruled on Plaintiff’s motion, denying judgment on the pleadings and
finding that Plaintiff was required to seek leave of court to file the amended reply
that asserted the statute of limitations defense. On 19 January 2021, Plaintiff moved
to amend his answer. This motion was allowed on 23 February 2021 by the Honorable
Phyllis Gorham. On 26 February 2021, Plaintiff filed an amended answer to
Defendant’s counterclaim. On 4 March 2021, Plaintiff filed another motion for
judgment on the pleadings, or in the alternative, for summary judgment on the
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ground that the counterclaim was filed after the statute of limitations had run. On
22 March 2021, Defendant filed a second amended answer.
¶4 On 22 April 2021, the Honorable Phyllis Gorham entered an order granting
Plaintiff’s motion for summary judgment on Defendant’s counterclaim and dismissed
Defendant’s counterclaim with prejudice.
On 29 April 2021, Defendant timely filed notice of appeal.
II. Analysis
¶5 The sole issue on appeal is whether the trial court erred in granting Plaintiff’s
motion for summary judgment on the ground that Defendant’s counterclaim was
barred by the three-year statute of limitations provided in N.C. Gen. Stat. § 1-52(16).
¶6 We review a trial court’s grant of summary judgment de novo. Summey v.
Barker, 357 N.C. 492, 497, 586 S.E.2d 247, 249 (2003).
¶7 North Carolina General Statute § 1-52(16) establishes a three-year statute of
limitations “for personal injury or physical damage to claimant’s property[.]” N.C.
Gen. Stat. § 1-52(16) (2021). The cause of action in such cases begins to accrue when
“bodily harm to the claimant or physical damages to his property becomes apparent
or ought reasonably to have become apparent to the claimant, whichever event first
occurs.” Id. The parties seemingly agree that the cause of action in the instant case
began to accrue on the day of the accident, 19 December 2015, and claims must have
been filed by 19 December 2018 to be within the three-year statute of limitations
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delineated by N.C. Gen. Stat. § 1-52(16).
¶8 Defendant argues that his counterclaim filed on 20 December 2018 should be
deemed to relate back to the filing of the original complaint by Plaintiff on 19
December 2018, and thus should be considered timely filed within the three-year
statute of limitations. In doing so, Defendant contends that we should decline to
follow our Court’s holding in PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594
S.E.2d 148, dis. rev. denied, 358 N.C. 733 (2004).
¶9 In PharmaResearch, a defendant filed counterclaims in a shareholders
agreement dispute and argued the filing should relate back to the date the plaintiff
filed its original complaint. 163 N.C. App. at 426, 594 S.E.2d at 153. The Court
concluded that “counterclaims do not ‘relate back’ to the date the plaintiff’s action
was filed[,]” and that the counterclaims were barred by the applicable statute of
limitations. Id. at 427, 594 S.E.2d at 153. The Court followed our Supreme Court’s
intervening analysis in Burcl v. North Carolina Baptist Hospital, Inc., 306 N.C. 214,
293 S.E.2d 85 (1982), “that if application of the [North Carolina] Rules of Civil
Procedure dictates a result different from that arrived at in a pre-rules case, the Rules
should be applied[.]” 163 N.C. App. at 426, 594 S.E.2d at 153. Therefore, the Court
concluded “that the pertinent Rule of Civil Procedure, Rule 13, does not support
defendant’s assertion that his counterclaim should be deemed to ‘relate back’ to the
date that plaintiff filed its original action.” Id. at 427, 594 S.E.2d at 153. The Court
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specifically declined to follow our Supreme Court’s much earlier decision Brumble v.
Brown, 71 N.C. 513 (1874), which held the opposite—that a counterclaim “refers to
the commencement of the action . . . [a]nd if not barred by the statute at that time, it
does not become so afterwards during the pending of the action.” 71 N.C. at 516.
¶ 10 Defendant argues that we should decline to follow PharmaResearch for several
reasons, most significantly because the Court in PharmaResearch erroneously
overruled a previous decision of our Court, In re Gardner 20 N.C. App. 610, 202 S.E.2d
318 (1974), in violation of In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).
¶ 11 The Court in In re Gardner adopted the rule in Brumble and held that the
counterclaim at issue related back and was therefore not barred by the applicable
statute of limitations. 20 N.C. App. at 618, 202 S.E.2d at 324. The Court did so
despite the new, amended Rules of Civil Procedure becoming effective on 1 January
1970, prior to the filing of the original complaint on 16 June 1971. Id. at 617-18, 202
S.E.2d at 323-24. While we acknowledge the conflicting holdings, we are unable to
overrule PharmaResearch in favor of In re Gardner. “Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been overturned by a higher
court.” In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.
Thus, In re Civil Penalty stands for the proposition that,
where a panel of this Court has decided a legal issue, future
panels are bound to follow that precedent. This is so even
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if the previous panel’s decision involved narrowing or
distinguishing an earlier controlling precedent—even one
from the Supreme Court—as was the case in In re Civil
Penalty. Importantly, In re Civil Penalty does not
authorize panels to overrule existing precedent on the basis
that it is inconsistent with earlier decisions of this Court.
State v. Gonzalez, 263 N.C. App. 527, 531, 823 S.E.2d 886, 888-89 (2019).
¶ 12 The Supreme Court “has authorized us to disregard our own precedent in
certain rare situations[,]” such as “when two lines of irreconcilable precedent develop
independently—meaning the cases never acknowledge each other or their conflict[.]”
Id. at 531, 823 S.E.2d at 889. This exception does not apply to the case at bar. The
Court in PharmaResearch specifically acknowledged In re Gardner and determined
its holding did not apply as it “was super[s]eded by the adoption of our Rules of Civil
Procedure.” PharmaResearch, 163 N.C. App. at 427 n.1, 594 S.E.2d at 153 n.1.
¶ 13 Accordingly, we hold that the rule delineated in PharmaResearch—that
counterclaims do not relate back to the date the plaintiff’s action was filed—applies
to this case. Therefore, Defendant’s counterclaim filed on 20 December 2018 was
barred by the three-year statute of limitations provided in N.C. Gen. Stat. § 1-52(16).
III. Conclusion
¶ 14 For the foregoing reasons, we affirm the trial court’s order granting Plaintiff’s
motion for summary judgment on Defendant’s counterclaim and dismissing the
counterclaim with prejudice.
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AFFIRMED.
Judge DIETZ concurs.
Judge MURPHY concurs in result only.