Opinion
No. 8023DC144
Filed 5 August 1980
Limitation of Actions 18.1; Rules of Civil Procedure 41.1 — statute of limitations — judgment on pleadings — voluntary dismissal — failure to reinstitute action within one year In an action to recover damages for personal injuries allegedly caused by defendant's negligence, the trial court properly granted defendant's motion for judgment on the pleadings based on the three-year statute of limitations where the pleadings showed that the present action was not filed within three years after the accident and that plaintiff had previously taken a voluntary dismissal without prejudice but failed to reinstitute his action within one year from the date of the voluntary dismissal prescribed in G.S. 1A-1, Rule 41(a)(2). The question of when the one-year period under Rule 41(a)(2) begins if there was an appeal from the order allowing the voluntary dismissal is not properly before the appellate court where the record fails to show that an appeal was taken from plaintiff's voluntary dismissal.
APPEAL by plaintiff from Kilby, Judge. Order entered 19 October 1979 in District Court, WILKES County. Heard in the Court of Appeals 10 June 1980.
Vannoy, Moore and Colvard, by J. Gary Vannoy and Michael E. Helms, for plaintiff appellant.
Womble, Carlyle, Sandridge Rice, by Allan R. Gitter and Keith W. Vaughn, for defendant appellee.
Judge HEDRICK dissenting.
Plaintiff filed a complaint in this action on 28 November 1978, seeking damages for personal injuries sustained as a result of the alleged negligence of defendant. Plaintiff alleged he was an invitee upon the commercial premises of defendant on 25 July 1974 when the accident occurred. In its answer defendant, among other defenses, asserted the three-year statute of limitations, N.C.G.S. 1-52. Defendant sought dismissal of plaintiff's action on the grounds that previously plaintiff had taken a voluntary dismissal without prejudice of his action but had failed to reinstitute his action within one year from the date of the voluntary dismissal, 15 September 1977. Defendant then filed a motion for judgment on the pleadings, which was granted by the court. Plaintiff appeals from this order.
In his brief plaintiff appellant presents the question for our review as follows: Did the trial court err in allowing the defendant's motion for judgment on the pleadings based upon the three-year statute of limitations? On the record before us in this case, we must answer this question in the negative.
The date of the filing of the complaint is 28 November 1978. The date of the alleged accident is 25 July 1974. The face of the complaint itself discloses that the applicable three-year period for bringing negligence actions has expired. We discover, however, from defendant's answer that on 15 September 1977 plaintiff took a voluntary dismissal without prejudice, but again the complaint reveals that this action was not brought within the one-year period prescribed in N.C.G.S. 1A-1, Rule 41(a)(2). Clearly, based upon the pleadings, the court correctly dismissed plaintiff's action.
In his oral argument counsel for appellant sharpened the question for review as follows: When does the one-year period under Rule 41(a)(2) commence if there has been an appeal taken from the order allowing the voluntary dismissal? Because we hold that this narrower question is not properly before the Court at this time, we decline to answer it.
Appellant informs us in his brief and in oral argument that in response to Judge Kivett's signing an order allowing plaintiff's voluntary dismissal on 15 September 1977, defendant appealed from that order, and that the Court of Appeals filed an opinion affirming the order 17 October 1978. He argues that by instituting this case on 28 November 1978, only forty-two days after that filing date, plaintiff timely filed his complaint under Rule 41(a)(2).
Appellant's crucial problem is that the record in this case fails to disclose such subsequent history of the prior action. There is not the slightest hint in the record that an appeal was taken from the voluntary dismissal. In fact, the only mention of the voluntary dismissal itself is made by the defendant, not the plaintiff appellant. The Court of Appeals can judicially know only what appears of record. In re Sale of Land of Warrick, 1 N.C. App. 387, 161 S.E.2d 630 (1968). Appellant's brief is not a part of the record on appeal. Civil Service Bd. v. Page, 2 N.C. App. 34, 162 S.E.2d 644 (1968). Matters discussed in a brief but not found in the record will not be considered by this Court. Warrick, supra. It is incumbent upon the appellant to see that the record is properly made up and transmitted to the appellate court. Mooneyham v. Mooneyham, 249 N.C. 641, 107 S.E.2d 66 (1959).
Although this defect in the record on appeal was repeatedly pointed out to appellant's counsel at oral argument, he failed to move the Court either to amend the record or to take judicial notice of such facts contained in our records which might support appellant's argument. The matters appellant argues simply are not before us.
The trial court properly granted defendant's motion for judgment on the pleadings.
Affirmed.
Judge MARTIN (Robert M.) concurs.
Judge HEDRICK dissents.