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Clark v. Visiting Health Professionals2/1/2000
cific. Therefore, the Rules of Civil Procedure must be interpreted as a whole. See Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655 (1988). A similar rule applies when several statutes must be interpreted together. "It is well established that when there are two acts of the legislature applicable to the same subject, their provisions are to be reconciled if this can be done by fair and reasonable intendment, but to the extent that they are necessarily repugnant, the one last enacted shall prevail." Nytco Leasing v. Southeastern Motels, 40 N.C. App. 120, 125-26, 252 S.E.2d 826, 830 (1979) (citing Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967)). These principles and a review of the policies behind Rules 14 and 41 lead us to conclude that VHP and Wells properly refiled their complaint and were not required to seek leave of court. As noted above, the savings provision of Rule 41 has been interpreted broadly by our courts. Were we to adopt the restrictive approach advocated by Dr. Hoski, our courts would be closed to a party that properly filed a third-party complaint within the time limits set out in Rule 14, then properly entered a voluntary dismissal of the third-party complaint, as permitted by Rule 41, then sought to refile more than forty-five days after a responsive pleading had been filed but within a year of dismissal, if the court declined to grant leave. We believe such a result is contrary to the traditional policy of open courts in North Carolina. See N.C. Const. art. I, § 18. Therefore, we hold that a third-party plaintiff who originally files a third-party complaint within the time limits set out in Rule 14 and subsequently enters a voluntary dismissal may, within one year, refile the complaint or an amended complaint without leave of court.
We are aware that this holding means that the trial courts' ability to control the filing of third-party complaints is correspondingly diminished. However, the case at bar illustrates that refiling a complaint need not be burdensome. Third-party plaintiffs refiled their third-party complaint while the original action remained pending. It was still possible, if the original action went to trial, for the third-party complaint to have been heard contemporaneously. In more problematic instances, judges may exercise their discretionary authority under Rules 14(a) and 42(b) to grant motions for severance and separate trials, see N.C. Gen. Stat. § 1A-1, Rule 14(a), Rule 42(b) (1999), to avoid "delay, confusion of the issues or complication of the trial with new issues." Wilson on Civil Procedure § 14-4, at 280. This case is reversed and remanded to the trial court for actions consistent with this opinion.
Reversed and remanded.
Judges MCGEE and HORTON concur.
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