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Clark v. Visiting Health Professionals2/1/2000
Appeal by defendant and third-party plaintiffs from order entered 12 November 1998 by Judge Richard L. Doughton in Yancey County Superior Court. Heard in the Court of Appeals 28 October 1999.
Visiting Health Professionals, Inc. (VHP) and John Wells (Wells), defendants and third-party plaintiffs, appeal the trial court's dismissal of their third-party complaint. We reverse.
Plaintiff Clark (Clark) filed a complaint on 18 August 1997 against VHP and Wells for medical malpractice and negligent provision of physical therapy services. On 25 September 1997, VHP and Wells filed an answer along with a third-party complaint seeking contribution from Dr. James J. Hoski (Dr. Hoski), plaintiff's treating physician. Dr. Hoski did not answer the third-party complaint, but moved to dismiss that complaint on 16 October 1997 for failure to state a claim under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (1990) and for failure to comply with N.C. Gen. Stat. § 1A-1, Rule 9(j) (Supp. 1998). On 22 October 1997, VHP and Wells gave notice of voluntary dismissal without prejudice of their third-party complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a) (1990).
On 26 June 1998, VHP and Wells refiled a third-party complaint against Dr. Hoski; Rule 41(a) refers to such a refiling as a "new action based on the same claim." N.C. Gen. Stat. § 1A-1, Rule 41(a). The refiled complaint complied with the requirements of N.C. Gen. Stat. § 1A-1, Rule 9(j); however, VHP and Wells refiled without obtaining leave of court in accordance with N.C. Gen. Stat. § 1A-1, Rule 14 (1990). On 2 September 1998, Dr. Hoski filed his answer to the refiled third-party complaint, then on 24 September 1998 moved to dismiss the third-party complaint for failure to comply with Rule 14.
After hearing Dr. Hoski's motion to dismiss on 9 November 1998, the trial court granted the motion pursuant to Rule 14, on the ground that without obtaining leave of court VHP and Wells refiled the third-party complaint more than forty-five days after the answer to the complaint was served. VHP and Wells, arguing that Rule 41 permits them to refile their third-party complaint within a year of taking a voluntary dismissal without the need for obtaining leave of court, appeal the trial court's dismissal of their third-party complaint.
We begin our analysis with a review of the pertinent Rules of Civil Procedure. Rule 14, dealing with third-party practice, provides in pertinent part:
(a) When defendant may bring in third party. --At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Leave to make the service need not be obtained if the third-party complaint is filed not later than 45 days after the answer to the complaint is served. Otherwise leave must be obtained on motion upon notice to all parties to the action. . . . Any party may move for severance, separate trial, or dismissal of the third-party claim. N.C. Gen. Stat. § 1A-1, Rule 14(a).
The purpose of Rule 14 is to promote judicial efficiency by "provid a mechanism for disposing of multiple claims arising from a single set of facts in one action expeditiously and economically." Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1442, at 291 (1990). The rationale for giving the trial court discretion to allow filing of the third-party claim after forty-five days is to ensure that the claim does not lead to "delay, confusion of the issues or complication of the trial with new issues." 1 G. Gray Wilson, North Carolina Civil Procedu
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