Puma Biotechnology, Inc. v. Hedrick Gardner Kincheloe & Garofalo, L.L.P.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-722

Filed 3 September 2025

Mecklenburg County, No. 23CVS010009-590

Puma Biotechnology, Inc., Plaintiff,

v.

Hedrick Gardner Kincheloe & Garofalo, L.L.P. and David L. Levy, Defendants.

Appeal by Plaintiff from order entered 20 March 2024 by Judge Edwin G.

Wilson Jr. in Mecklenburg County Superior Court. Heard in the Court of Appeals 3

April 2025 in session at Elon University School of Law in the City of Greensboro

pursuant to N.C. Gen. Stat. § 7A-19(a).

Pishko Kalarities, P.A., by David C. Pishko, for Puma Biotechnology, Inc.,

Plaintiff-Appellant.

Mullins Duncan Harrell & Russell PLLC, by Alan W. Duncan, Allison O.

Mullins, Stephen M. Russell, Jr. and Hillary M. Kies, for Hedrick Gardner

Kincheloe & Garofalo, L.L.P., Defendant-Appellee; and Parker Poe Adams &

Bernstein LLP, by Chip Holmes, Jason R. Benton, and Carolina B. Barrineau,

for David L. Levy, Defendant-Appellee.

John Taylor Law Firm, PLLC, by John R. Taylor, for The North Carolina

Advocates for Justice, Amicus Curiae for Plaintiff-Appellant.

Ellis & Winters LLP, by Leslie C. Packer, Dixie T. Wells, and Suraj Vege, for

NC Chamber Legal Institute and North Carolina Association of Defense

Attorneys, Amici Curiae for Defendants-Appellees.

WOOD, Judge.

PUMA BIOTECH., INC. V. HEDRICK GARDNER

Opinion of the Court

This appeal stems from a legal malpractice action filed by Puma Biotechnology,

Inc. (“Plaintiff”) against Hedrick Gardner Kincheloe & Garofalo, L.L.P. (“HG LLP”)

and David L. Levy (“Levy”) (collectively “Defendants”). Levy was a partner at HG

LLP and represented Plaintiff in the underlying defamation case, which is the basis

of the legal malpractice action on appeal.

I. Factual and Procedural Background

On 24 January 2018, Defendants were hired to represent Plaintiff, who was a

defendant in a defamation lawsuit (“Defamation Case”) filed in the United States

District Court for the Eastern District of North Carolina against Plaintiff by Fredric

Eshelman (“Eshelman”) on 16 February 2016. Defendants replaced the prior

attorneys, Wilkinson Walsh + Eskovitz, LLP (“Wilkinson Walsh”). Eshelman alleged

Plaintiff had defamed him by publishing certain information to their shareholders

during a proxy contest. HG LLP assigned Levy to work on the Defamation Case. The

lead attorney from Wilkinson Walsh updated Levy on strategy, provided insight on

Eshelman’s attorneys, and advised that Alan Auerbach, Chief Executive Officer,

President, and Chairman of the Board of Directors of Puma (“Auerbach”), was a very

active client, who needed to be kept up-to-date and involved.

On 20 February 2019, Levy signed a pretrial order containing 146 stipulations

of fact of which Plaintiff contends many were not true or were not relevant to the

issues of the case. Levy did not consult with Auerbach prior to entering the

stipulations. The trial court subsequently entered the pretrial order, establishing the

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Opinion of the Court

truth of the stipulations for the purpose of the trial. Defendants did not review the

stipulations with Auerbach prior to trial, and on cross-examination Auerbach

attempted to deny the truth of the statements and stipulations, damaging his

credibility as a witness. Levy also did not make a motion for judgment as a matter

of law at the conclusion of evidence. The jury returned verdicts in favor of Eshelman.

In total, Eshelman was awarded $26,334,646.58 in compensatory and punitive

damages and pre-judgment interest.

After the verdict, Latham & Watkins was hired “to take over the lead role in

filing post-trial motions and appealing the verdict.” On 22 April 2019, Plaintiff moved

for a new trial or alternatively a reduction in damages. At this time, Levy submitted

an affidavit with this motion explaining “his agreement to the various stipulations in

the Pretrial Order. Among other things, he stated that he understood the topic

headings contained in the stipulations were included for ‘organizational purposes’

and not as factual stipulations.” A second non-party attorney working with Levy on

the case also submitted a similar affidavit.

On 8 July 2019, the trial court granted Defendants’ motion to withdraw as

counsel for Plaintiff. On 2 March 2020, the trial court entered an order denying

Plaintiff’s motion for a new trial. The matter was appealed to the United States Court

of Appeals for the Fourth Circuit which upheld the judgment on the issue of liability

but set aside the award of damages as excessive. Plaintiff ultimately paid Eshelman

$16 million dollars to settle the defamation suit.

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Opinion of the Court

On 17 September 2020, Plaintiff filed a complaint (hereinafter “Initial

Complaint”) against Defendants in Mecklenburg County Superior Court alleging

legal malpractice and negligent representation during the Defamation Case. On 24

August 2022, Plaintiff filed a notice of voluntary dismissal of the Initial Complaint,

pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure. On 6 June

2023, Plaintiff refiled its complaint against Defendants (hereinafter “Refiled

Complaint”) alleging legal malpractice and negligence and a new claim of gross

negligence.

Defendants filed separate motions to dismiss on 22 August 2023, both alleging,

among other things, the Refiled Complaint was barred by the four-year statute of

repose contained in N.C. Gen. Stat. § 1-15(c). HG LLP asserted four grounds for

dismissal under North Carolina Rules of Civil Procedure 12(b)(6), 12(b)(7), 19, and

41(a). Levy also asserted four grounds for dismissal under North Carolina Rules of

Civil Procedure 9, 12(b)(6), 12(b)(7), 19, and 41(a).

On 20 February 2024, arguments were presented to the trial court by all

parties. The trial court considered two main questions, “(1) What was the last act

[by] Defendants that gave rise to the cause of action? and (2) Was the action filed

within the four-year Statute of Repose?” On 20 March 2024, the trial court filed a

written order dismissing Plaintiff’s Refiled Complaint with prejudice under Rule

12(b)(6) because it “was not brought within the statute of repose[.]” Plaintiff filed

notice of appeal on 28 March 2024.

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Opinion of the Court

II. Analysis

Plaintiff contends the trial court erred in granting Defendants’ motion to

dismiss the Refiled Complaint because the savings provision of Rule 41(a)(1) of the

North Carolina Rules of Civil Procedure allows a claim to be refiled within one year

of its voluntary dismissal, and this one-year time period is not cut short by the four-

year statute of repose contained in N.C. Gen. Stat. § 1-15(c). Thus, Plaintiff contends

it properly alleged a sufficient cause of action in the Refiled Complaint that should

not have been dismissed as time barred.

Additionally, Plaintiff argues the trial court incorrectly concluded Defendants’

“last act of negligence was on or before 22 April 2019” because Defendants had not

officially withdrawn as counsel until 8 July 2019, leaving opportunity up until that

date for Defendants to correct their negligent actions.

A. Standard of Review

We review a trial court’s order granting a Rule 12(b)(6) motion to dismiss to

determine “whether, as a matter of law, the allegations of the complaint, treated as

true, are sufficient to state a claim upon which relief may be granted under some

legal theory.” BDM Invs. v. Lenhil, Inc., 264 N.C. App. 282, 291, 826 S.E.2d 746, 756

(2019) (quoting Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987)).

“[T]he complaint is to be liberally construed, and the court should not dismiss

the complaint ‘unless it appears beyond doubt that the plaintiff could prove no set of

facts in support of his claim which would entitle him to relief.’” Locklear v. Lanuti,

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176 N.C. App. 380, 383, 626 S.E.2d 711, 714 (2006) (cleaned up) (quoting Dixon v.

Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)). “On appeal of a 12(b)(6)

motion to dismiss, this Court conducts a de novo review of the pleadings to determine

their legal sufficiency and to determine whether the trial court’s ruling on the motion

to dismiss was correct.” Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231

N.C. App. 70, 74, 752 S.E.2d 661, 663-64 (2013).

“A statute of limitations or repose defense may be raised by way of a motion to

dismiss if it appears on the face of the complaint that such a statute bars the claim.”

Hargett v. Holland, 337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994). However, “[a]

12(b)(6) dismissal based on the statute of repose would only be appropriate if the

complaint otherwise alleges facts conclusively showing that it was not filed within

the applicable statute of repose[]” as “a plaintiff has no burden at the pleading stage

to allege facts showing that its complaint was filed within the applicable statute of

repose.” Gaston Cnty. Bd. of Educ. v. Shelco, LLC, 285 N.C. App. 80, 84, 877 S.E.2d

316, 319-20 (2022).

While our legislature does not define the four-year outer limit from the date of

the “last act of the defendant giving rise to the cause of action” within N.C. Gen. Stat.

§ 1-15(c) as a statute of repose, our Courts have consistently defined it as such.

Hargett, 337 N.C. at 652, 447 S.E.2d at 786; Black v. Littlejohn, 312 N.C. 626, 632,

325 S.E.2d 469, 474-75 (1985) (“The majority of the jurisdictions with malpractice

statutes of limitations provide some absolute statutory outer limit similar to that

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Opinion of the Court

contained in our statute [N.C. Gen. Stat. § 1-15(c)]. This outer limit is more precisely

referred to as a period of repose.”). Regardless of whether prior cases have referred

to this four-year outer limit as a statute of repose, we shall treat and refer to it as

such.

B. Last Act of Negligence

We first address the date of the “last act of the defendant giving rise to the

cause of action.” N.C. Gen. Stat. § 1-15(c). Plaintiff contends the trial court erred in

granting Defendants’ motion to dismiss because 8 July 2019, the date Defendants’

motion to withdraw as counsel for Plaintiff in the Defamation Case was granted, is

the correct date from which the “last act of the defendant giving rise to the cause of

action[]” accrues. N.C. Gen. Stat. § 1-15(c). The statute for professional malpractice

cases states, in relevant part:

(c) Except where otherwise provided by statute, a cause of

action for malpractice arising out of the performance of or

failure to perform professional services shall be deemed to

accrue at the time of the occurrence of the last act of the

defendant giving rise to the cause of action: . . . Provided

nothing herein shall be construed to reduce the statute of

limitation in any such case below three years. Provided

further, that in no event shall an action be commenced

more than four years from the last act of the defendant

giving rise to the cause of action . . . .

N.C. Gen. Stat. § 1-15(c) (emphasis added).

When determining the last act of alleged negligence, we may also consider

when the last omission of an act by a defendant has occurred that may give rise to a

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Opinion of the Court

cause of action. Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 225 N.C. App. 656,

661-62, 738 S.E.2d 766, 770-71 (2013). To determine the last act or omission by a

defendant, this Court looks to “factors such as the contractual relationship between

the parties, when the contracted-for services were complete, and when the alleged

mistakes could no longer be remedied.” Id. at 661, 738 S.E.2d at 771.

In North Carolina, statutes of repose are not considered to be an affirmative

defense, but rather a condition precedent. Unlike statutes of limitation which are

listed as an affirmative defense and must be affirmatively pleaded, conditions

precedent do not need to be specially pleaded by the defendant. N.C. Gen. Stat. § 1A-

1, Rule 8(c); Whittaker v. Todd, 176 N.C. App. 185, 187, 625 S.E.2d 860, 862 (2006);

Gaston Cnty., 285 N.C. App. at 85, 877 S.E.2d at 320. The plaintiff has the burden to

prove that their action is not barred by the statute of repose, but because it is not an

affirmative defense, it does not need to be specially pleaded by the defendant.

Whittaker, 176 N.C. App. at 187, 625 S.E.2d at 862.

This Court in Whittaker clarified that the statute of repose is a condition

precedent, thus a defendant does not waive their right to raise the issue when not

specially pleaded. Id. Furthermore, this Court more recently emphasized in Gaston

that the statute of repose is not listed as an affirmative defense under Rule 8 of the

North Carolina Rules of Civil Procedure but is instead governed by Rule 9(c) as a

condition precedent. Gaston Cnty., 285 N.C. App. at 85, 877 S.E. at 320.

In determining whether it is appropriate to grant a 12(b)(6) motion to dismiss

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based on the statute of repose, our Court has expressed

it is generally inappropriate to grant a defendant’s Rule

12(b)(6) motion to dismiss a complaint merely because it

failed to allege facts showing that it was filed within the

applicable statute of repose. A Rule 12(b)(6) dismissal

based on the statute of repose would only be appropriate if

the complaint otherwise alleges facts conclusively showing

that it was not filed within the applicable statute of repose.

Id. at 84, 877 S.E.2d at 319-20. In Gaston, this Court deemed granting a 12(b)(6)

motion inappropriate because the plaintiff did not “allege both the dates when any

Defendant performed its last ‘specific last act’ and the ‘substantial completion of the

improvement[.]’” Id. at 84, 877 S.E.2d at 320. “[B]ased on our jurisprudence, a

plaintiff has no burden at the pleading stage to allege facts showing that its complaint

was filed within the applicable statute of repose.” Id. at 84, 877 S.E.2d at 319.

Similarly, sub judice, Plaintiff did not allege a specific last act of negligence by

Defendants, but it does allege a timeline of events that leaves open the door to

conjecture as to what facts could have been alleged or do exist that would conclusively

determine the last act of negligence by Defendants.

Here, Plaintiff alleges the following relevant facts in its Refiled Complaint.

Plaintiff was represented by three law firms over the life of the Defamation Case.

Wilkinson Walsh first represented Plaintiff, then Defendant HG LLP, and lastly

Latham & Watkins. Plaintiff hired Defendant HG LLP to replace Wilkinson Walsh

in the Defamation Case on or about 24 January 2018 prior to trial. Plaintiff

acknowledges transition of lead representation from Defendants to Latham &

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Opinion of the Court

Watkins by stating in its Refiled Complaint, “[a]fter the verdict [was returned 15

March 2019], [Plaintiff] engaged Latham & Watkins to take over the lead role in filing

post-trial motions and appealing the verdict.” On 22 April 2019, Plaintiff moved for

a new trial and Levy “submitted an affidavit explaining his agreement to the various

stipulations” in support of the motion. Plaintiff makes no mention of what occurred

between the filing of the affidavit and the granting of the motion to withdraw on 8

July 2019.

As the trial court points out, “[t]he complaint is fairly silent as to what

Defendants did or did not do during the intervening period between late April and

the formal conclusion of Defendants’ representation in July” when their motion to

withdraw as counsel was officially granted. As stated above, “statutes of repose are

conditions precedent and [] the plaintiff has the burden at trial of proving that the

claim is brought within the applicable statute of repose.” Richland Run Homeowners

Ass’n, Inc. v. CHC Durham Corp., 123 N.C. App. 345, 352, 473 S.E.2d 649, 654 (1996)

(Greene, J., dissenting), rev’d, 346 N.C. 170 (1997) (reversing for reasons consistent

with Judge Greene’s dissent). However, assuming, without deciding, the trial court

correctly determined that the date of the last negligent act of Defendants was 22 April

2019, we focus our attention on whether the matter is time-barred by the statute of

repose.

C. Statute of Repose and the Savings Provision of Rule 41

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Opinion of the Court

This case poses a question of law that has not been explicitly answered by our

Courts. We are tasked with determining how the four-year statute of repose,

contained in N.C. Gen. Stat. § 1-15(c), and the one-year time period contained in the

savings provision of Rule 41(a)(1) interact. Plaintiff contends its Refiled Complaint

is not barred by the statute of repose because it was filed within one year of its

voluntary dismissal of the Initial Complaint pursuant to the savings provision of Rule

41(a)(1). In contrast, Defendants contend the savings provision does not allow a claim

to be filed after the statute of repose has expired, even if refiled within one year after

the filing of a voluntary dismissal pursuant to Rule 41(a)(1). N.C. Gen. Stat. § 1A-1,

Rule 41(a)(1).

First, we summarize the relevant dates and issue presented. On 17 September

2020, Plaintiff filed its Initial Complaint. On 24 August 2022, Plaintiff voluntarily

dismissed the Initial Complaint pursuant to Rule 41(a)(1). On 6 June 2023, Plaintiff

filed the Refiled Complaint. Based on the trial court’s determination of 22 April 2019

as the last date of purported negligence, the three-year statute of limitations expired

on 22 April 2022 and the four-year statute of repose expired on 22 April 2023. Thus,

Defendants contend because the Refiled Complaint was filed after 22 April 2023, it is

fully barred by the four-year statute of repose, notwithstanding Plaintiff asserting

the savings provision of Rule 41(a)(1) provided a full year from 24 August 2022, the

date the voluntary dismissal of the Initial Complaint was filed, to refile a complaint,

even though that one-year period extended past the four-year statute of repose.

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Opinion of the Court

We begin our analysis by discussing each statute separately to provide a clear

background of how each operates before we discuss their interaction.

1. Rule 41(a)(1) Savings Provision and Relation Back

The savings provision of Rule 41(a)(1) states,

[i]f 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 unless a stipulation filed under (ii) of this

subsection shall specify a shorter time.

N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (emphasis added).

This Court and our Supreme Court have applied the Rule 41(a)(1) savings

provision consistently, allowing a timely-filed initial complaint to be voluntarily

dismissed and then subsequently refiled within one year of its voluntary dismissal.

When this one-year period after voluntary dismissal exceeds the applicable statute of

limitations, our Courts have held the refiled complaint relates back to the

commencement of the initial complaint, thus avoiding the expiration of the statute of

limitations. Sweet v. Boggs, 134 N.C. App. 173, 175, 516 S.E.2d 888, 890 (1999)

(“[W]hen a claim is voluntarily dismissed without prejudice by a plaintiff, the plaintiff

may reinstitute the claim within one year. The second claim will relate back and avoid

the bar of the statute of limitations.”); Georgia-Pacific Corp. v. Bondurant, 81 N.C.

App. 362, 365, 344 S.E.2d 302, 304 (1986) (“When a party properly takes a first

voluntary dismissal of an action filed within the statute of limitations, that party

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then has one year to refile the same action even though the refiling may be beyond

the general statute of limitations.”). Our Courts have explicitly discussed the savings

provision’s application against statutes of limitations, but it has never explicitly

stated whether Rule 41(a)(1) is applied in the same manner when the one year period

exceeds the time period of a statute of repose. Thus, we further examine how our

Courts have applied and discussed Rule 41(a)(1) to guide our analysis.

a. Relation Back

Under Rule 41(a)(1), “a new action based on the same claim may be commenced

within one year after such dismissal” and “the refiled claim will relate back to the

[date of the] original filing for purposes of tolling the statute of limitations.” N.C. Gen.

Stat. § 1A-1, Rule 41(a)(1); Williams v. Lynch, 225 N.C. App. 522, 526, 741 S.E.2d

373, 375 (2013). Although this Court in Spoor v. Barth primarily focused on which

claims the relation-back provision applies to in a refiled complaint, the holding is

relevant sub judice because this Court makes it clear Rule 41(a)(1)’s relation-back

provision is applied to the refiled claim by interposing the filing date of the original

complaint to the refiled complaint. Spoor v. Barth, 257 N.C. App. 721, 727-31, 811

S.E.2d 609, 614-16 (2018). When interposing the date of an initial complaint to a

refiled complaint, the refiled complaint stands as if it had commenced on the same

date as the initial complaint. Thus, when an initial complaint is timely filed within

the applicable “time prescribed therefor,” the refiled complaint is likewise deemed to

be timely filed. Id. Consequently, a common sense application of our jurisprudence

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to the relation-back component of Rule 41(a)(1) allows a properly refiled claim to

avoid both a statute of limitations and a statute of repose. The commencement date

of the action is deemed to be the same as the initial complaint. See Sweet, 134 N.C.

App. at 175, 516 S.E.2d at 890; See Spoor, 257 N.C. App. at 727-31, 811 S.E.2d at 614-

16.

b. Relation Back – Amended Complaints

To help provide guidance on our Court’s treatment of the relation back of a

claim in general, we consider the relation back of amended complaints. Our Supreme

Court long ago established how Rule 15(c), the statute allowing a party to file an

amended complaint, and its relation-back component and statutes of repose interact.

See generally Pyco Supply Co., Inc. v. Am. Centennial Ins. Co., 321 N.C. 435, 364

S.E.2d 380 (1988). In Pyco Supply Co., our Supreme Court reversed this Court’s

holding that Rule 15(c) was inapplicable when the amendment was “filed beyond a

statutory period when that time restriction is deemed a statute of repose.” Id. at 440,

364 S.E.2d at 383. Our Supreme Court stated,

We can discern from our Rules of Civil Procedure and the

case law of this State no such exception [was] intended for

Rule 15(c). We hold that the determination of whether a

claim asserted in an amended pleading relates back does

not hinge on whether a time restriction is deemed a statute

of limitation or repose. Rather, the proper test is whether

the original pleading gave notice of the transactions,

occurrences, or series of transactions or occurrences which

formed the basis of the amended pleading. If the original

pleading gave such notice, the claim survives by relating

back in time without regard to whether the time restraint

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Opinion of the Court

attempting to cut its life short is a statute of repose or

limitation.

Id. at 440-41, 364 S.E.2d at 383 (emphasis added).

While a refiled complaint and an amended complaint are separate and distinct,

our Supreme Court explicitly acknowledged “whether a time restriction is deemed a

statute of limitation or repose[]” was not intended to be a determining factor. Id. In

this context, Pyco offers valuable guidance for how our courts may interpret other

relation-back provisions.

We acknowledge “notice is not the determinative inquiry for relation back

under Rule 41[]” as it is for the relation back of an amended complaint. Gantt v. City

of Hickory, 290 N.C. App. 279, 285, 892 S.E.2d 223, 228 (2023). We discuss amended

complaints as guidance for how our Courts have considered the interaction of

relation-back provisions and statutes of limitation and statutes of repose, not for

guidance on the substance of which claims can be related back.

c. Allowed Causes of Action in Refiled Complaint

The savings provision of Rule 41(a)(1) applies only when “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) (emphasis added). “Rule 41(a)(1)’s relation-back

provision applies only to claims in a subsequent complaint that were included in the

voluntarily dismissed complaint.” Spoor, 257 N.C. App. at 727, 811 S.E.2d at 613.

Our courts have required the “strictest factual identity

between the original” claim, and the “new” action, which

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must be based upon the “same claim,” as the original

action. Further, both claims must be “substantially the

same, involving the same parties, the same cause of action,

and the same right.” If the actions are “fundamentally

different,” or not “based on the same claims,” the new

action is not considered a “continuation of the original

action,” and Rule 41(a) may not be invoked.

Brannock v. Brannock, 135 N.C. App. 635, 639-40, 523 S.E.2d 110, 113 (1999) (cleaned

up).

2. Malpractice Statutes of Limitation and Statutes of Repose

N.C. Gen. Stat. § 1-15(c) is the statute governing professional malpractice. The

statute states, in relevant part, “nothing herein shall be construed to reduce the

statute of limitation in any such case below three years. Provided further, that in no

event shall an action be commenced more than four years from the last act of the

defendant giving rise to the cause of action.” N.C. Gen. Stat. § 1-15(c) (emphasis

added). The four-year outer limit contained in N.C. Gen. Stat. § 1-15(c) is a statute

of repose, thus professional malpractice cases have a three-year statute of limitations

and a four-year statute of repose. Hargett, 337 N.C. at 652, 447 S.E.2d at 786; Black,

312 N.C. at 632, 325 S.E.2d at 474-75 (“The majority of the jurisdictions with

malpractice statutes of limitations provide some absolute statutory outer limit

similar to that contained in our statute [N.C. Gen. Stat. § 1-15(c)]. This outer limit

is more precisely referred to as a period of repose.”).

Articulating the difference between the statute of limitations and the statute

of repose in legal malpractice claims under this statute, our Supreme Court

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explained:

Unlike statutes of limitations, which run from the time a

cause of action accrues, statutes of repose . . . create time

limitations which are not measured from the date of injury.

These time limitations often run from defendant's last act

giving rise to the claim or from substantial completion of

some service rendered by defendant. A statute of repose

creates an additional element of the claim itself which must

be satisfied in order for the claim to be maintained.

Unlike a limitation provision which merely makes a claim

unenforceable, a condition precedent establishes a time

period in which suit must be brought in order for a cause of

action to be recognized. If the action is not brought within

the specified period, the plaintiff literally has no cause of

action. The harm that has been done is damnum absque

injuria—a wrong for which the law affords no redress.

Hargett, 337 N.C. at 654-55, 447 S.E.2d at 787 (emphasis added) (cleaned up).

3. Interaction of Rule 41(a)(1) and N.C. Gen. Stat. § 1-15(c)

When reading the savings provision of Rule 41(a)(1) and the statute of repose,

a seeming conflict presents. While the savings provision allows parties to refile a

claim within one year of a voluntary dismissal, a conflict in the application of both

statutes may appear to arise when the one-year period extends past the expiration of

the applicable statute of repose, because generally the “unyielding and absolute”

barrier of a statute of repose would preclude a claim filed past its expiration.

However, a plain reading of the applicable statutes allows them to be read and

applied harmoniously.

a. Statutory Interpretation

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The plain language interpretation of Rule 41(a)(1) does not conflict with the

“unyielding and absolute” nature of a statute of repose. When read in context, the

phrase “a new action based on the same claim may be commenced” refers back to the

filing of the original complaint. That original complaint must have been “commenced

within the time prescribed therefor,” in other words, timely filed. The legislature did

not intend for the timeliness of the “new action based on the same claim” to be judged

independently. Rather, the statute places the relevant time bar on the filing of the

initial action.

Moreover, nothing in the plain language of Rule 41(a)(1) suggests that its

application is limited or curtailed by a statute of limitations or statute of repose. The

legislature specifically stated: “a new action based on the same claim may be

commenced within one year after such dismissal unless a stipulation filed under (ii)

of this subsection shall specify a shorter time.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).

This language demonstrates the legislature’s intent that the one-year period

following a voluntary dismissal may only be shortened by a stipulation filed under

subsection (ii), not by external statutory time bars.

Our colleague’s concurring and dissenting opinion relies upon a flawed plain

language reading of N.C. Gen. Stat. § 1-15(c) and Rule 41(a)(1) purporting to

harmonize how the statutes interact and perception of how they should be applied.

“Statutes dealing with the same subject matter must be construed in pari materia

and harmonized, if possible, to give effect to each.” Bd. of Adjust. of Town of

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Opinion of the Court

Swansboro v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313 (1993).

However, our colleague’s flawed analysis does the opposite. Asserting to apply the

statutes in harmony, his interpretation of the statute of repose cuts short the one-

year time period to refile a complaint after a voluntary dismissal, as is explicitly

allowed in Rule 41(a)(1).

“A construction which operates to defeat or impair the object of the statute

must be avoided if that can reasonably be done without violence to the legislative

language.” Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., Inc., 328 N.C. 651,

656, 403 S.E.2d 291, 294 (1991) (quoting State v. Hart, 287 N.C. 76, 80, 213 S.E.2d

291, 295 (1975)). “Interpretations that would create a conflict between two or more

statutes are to be avoided, and statutes should be reconciled with each other

whenever possible.” Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 278, 576 S.E.2d 681,

686 (2003) (cleaned up).

In State v. Daw, upon which our colleague relies, the Supreme Court found this

Court had “violated the basic tenets of statutory construction by ignoring the plain

and definite language” of North Carolina’s habeas corpus statutes. State v. Daw, 386

N.C. 468, 476, 904 S.E.2d 765, 772 (2024). “By interpreting what has no need of

interpretation and going elsewhere in search of conjecture in order to restrict or

eliminate the applicability,” this Court “judicially rewrote” the relevant chapter.

Daw, 386 N.C. at 476-77, 904 S.E.2d at 772 (cleaned up). However, we are not

attempting to “silently establish[] a ‘general rule’ subject to exceptions” for either

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Opinion of the Court

Rule 41(a)(1) nor N.C. Gen. Stat. § 1-15(c) to create harmony. Daw, 386 N.C. at 477,

904 S.E.2d at 772. Rather, we conclude the Rule 41(a)(1) savings provision, because

of its relation-back component, does not function as an exception to the statute of

repose and both statutes can apply without conflict.

A more applicable case to guide our statutory interpretation is Cohane v. Home

Missioners of America, where our Supreme Court reviewed whether a Rule 12(b)(6)

motion was properly granted, as is the task before us now. Cohane v. Home Missioners

of Am., 387 N.C. 1, 911 S.E.2d 43 (2025). In its statutory interpretation analysis, the

Court in Cohane stated, “[w]hen called to interpret a statute, legislative intent is the

guiding star. We first look to the plain language, as the actual words of the legislature

are the clearest manifestation of its intent.” Id. at 7-8, 911 S.E.2d at 48 (cleaned up).

Further, “[o]ur primary task is to determine legislative intent while giving the

language of the statute its natural and ordinary meaning unless the context requires

otherwise.” Id. at 8, 911 S.E.2d at 48 (emphasis added). Thus, “words and phrases

are interpreted in their statutory context . . . .” Id. The operation and context of how

each statute is applied is key to our present analysis.

Looking at the plain language of N.C. Gen. Stat. § 1-15(c), our colleague focuses

on the legislature’s use of the word “shall,” in “that in no event shall an action be

commenced more than four years from the last act of the defendant giving rise to the

cause of action[.]” N.C. Gen. Stat. § 1-15(c). “It is well established that the word ‘shall’

is generally imperative or mandatory when used in our statutes.” Morningstar

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Opinion of the Court

Marinas/Easton Ferry, LLC v. Warren Cnty, 368 N.C. 360, 365, 777 S.E.2d 733, 737

(2015) (cleaned up). In contrast to the use of “shall” in N.C. Gen. Stat. § 1-15(c), Rule

41(a)(1) uses the word “may,” in that “a new action based on the same claim may be

commenced within one year.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (emphasis added).

Our colleague would apply the use of “shall” to create the unyielding and absolute bar

of a statute of repose that prohibits an action that “may” be commenced more than

four years after the last act.

We do not disagree with this general plain language application of the words

“shall” and “may” when considering an initially-filed complaint. Our colleague’s

interpretation fails to acknowledge the operation of Rule 41(a)(1)’s relation-back

component to the initial filing and the proper commencement date that should first

be considered before determining whether the statute of repose bars the claim. To

assert the statute of repose would bar a timely refiled complaint after a Rule 41(a)(1)

voluntary dismissal “disregards the statutes’ plain language and fundamentally

misunderstands their operation.” Daw, 386 N.C. at 478, 904 S.E.2d at 773 (emphasis

added).

Our plain language reading of Rule 41(a)(1) does not conflict with the statute

of repose’s “unyielding and absolute” time bar because, when considering the context,

a “new action based on the same claim” that “may be commenced” is related back to

the commencement of the initial complaint. The initial complaint must have been

“commenced within the time prescribed therefor,” meaning it must have been timely

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Opinion of the Court

filed. The legislature did not intend for the filing date of the “new action based on

the same claim” to be considered for the purposes of whether an action is time barred,

but for the hurdle to be placed on the date of the initial claim that the statute requires

to have been “commenced within the time prescribed therefor.”

Further, the plain language of Rule 41(a)(1) makes no statement to support

the contention that its application is cut short by a statute of limitations or statute of

repose. The legislature chose to use the language “a new action based on the same

claim may be commenced within one year after such dismissal unless a stipulation

filed under (ii) of this subsection shall specify a shorter time.” N.C. Gen. Stat. § 1A-1,

Rule 41(a)(1). Based upon this language, the legislature intended this one year time

period after dismissal to be shortened only when the indicated subsection and

stipulation provides for a shorter time.

4. Analogous Caselaw

We consider two additional cases for guidance on how Rule 41(a)(1) and the

statute of repose of N.C. Gen. Stat. § 1-15(c) may interact to resolve our present issue.

See generally Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991); Williams,

225 N.C. App. 522, 741 S.E.2d 373.

Before proceeding, we address our colleague’s abhorrence towards Bockweg

and Williams as guidance. While the Court in Bockweg never uses the word “repose”

and the Court in Williams only uses the word “repose” once in a parenthetical,

asserting neither case can be used to help understand the interplay between Rule

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Opinion of the Court

41(a)(1) and N.C. Gen. Stat. § 1-15(c) is absurd. Nothing supports the contention that

in order to use the analogous cases, Bockweg and Williams, as guidance to help solve

the issue presented, the word “repose” must be explicitly stated. To do so would also

conclude no statute of “repose” exists under N.C. Gen. Stat. § 1-15(c). As discussed

earlier, N.C. Gen. Stat. § 1-15(c) is devoid of the word “repose.”

Our Courts drew the inference that our legislature created a statute of repose,

not just a statute of limitations, when enacting “in no event shall an action be

commenced more than four years from the last act of the defendant giving rise to the

cause of action[,]” in N.C. Gen. Stat. § 1-15(c). N.C. Gen. Stat. § 1-15(c); Hargett, 337

N.C. at 652, 447 S.E.2d at 786; Black, 312 N.C. at 632, 325 S.E.2d at 474-75 Just as

our Courts have inferred the four-year outer limit in N.C. Gen. Stat. § 1-15(c) is a

statute of repose, we can also infer from analogous cases applying the same statute.

N.C. Gen. Stat. § 1-15(c) does not contain the word “repose.” We can infer our Courts

were cognizant of the relevant three-year statute of limitations and four-year statute

of repose when determining whether a claim was time barred under N.C. Gen. Stat.

§ 1-15(c), thus even when a case does not explicitly state a claim is not time barred

by both the statute of limitations and the statute of repose, reasonable inferences

from the facts and timeline of a case allow us to come to this conclusion.

a. Bockweg v. Anderson

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Opinion of the Court

Our Supreme Court considered our present issue in Bockweg v. Anderson.1 In

Bockweg, plaintiffs filed a diversity action in the United States District Court for the

Middle District of North Carolina. Bockweg, 328 N.C. at 437, 402 S.E.2d at 628. On

2 November 1987, the plaintiff stipulated to a voluntary dismissal pursuant to Rule

41(a)(1) as to one of the claims. Id.

On 18 October 1988, plaintiff refiled suit against the same defendants on the

voluntarily dismissed medical malpractice claim in Forsyth County Superior Court,

within one year of the voluntary dismissal in federal court “but more than four years

from the date care was last rendered to plaintiff-wife.” Id. (emphasis added). The

trial court granted the defendants’ motion to dismiss “on the grounds that the suit

was outside the applicable statute of limitations, [N.C. Gen. Stat.] § 1-15(c).” Id. at

437-38, 402 S.E.2d at 628.

As here, plaintiffs in Bockweg sought to apply the savings provision of Rule

41(a)(1) to refile a claim after the four-year statute of repose2 contained in N.C. Gen.

Stat. § 1-15(c) had expired. Id. at 438, 402 S.E.2d at 628. While the Court in Bockweg

heavily discussed and focused on the movement of the refiled complaint from federal

to state court and its effect on the savings provision’s applicability, the holding

1 Although Bockweg v. Anderson dates to 1991, both the savings provision of Rule 41(a)(1)

and N.C. Gen. Stat. § 1-15(c) remain unchanged.

2 While the word “repose” is not used explicitly in this case, the plaintiff’s refiled their claim

“more than four years from the date care was last rendered to plaintiff-wife.” This refiling took place

after the expiration of the statute of repose, not just the expiration of the statute of limitations,

because the statute of repose expired four years from the last act of negligence, and the last act in

this case is the date care was last rendered.

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Opinion of the Court

ultimately reversed the trial court’s dismissal and allowed the plaintiff, who had

voluntarily dismissed a timely filed action, to refile the action by invoking the one-

year savings provision of Rule 41(a)(1), even after the four-year statute of repose had

passed. Id. at 450, 402 S.E.2d at 635. Bockweg remains binding precedent.

Our colleague would discredit Bockweg by asserting “it offers no guidance on

the statute of repose,” and by failing to recognize the refiling that is considered to be

outside the statute of limitations of N.C. Gen. Stat. § 1-15(c) could mean any time after

the appropriate three year period has passed, not just the time period between the

statute of limitations, year three, and the statute of repose, in year four. Thus, a

claim refiled outside of the statute of limitations has the ability to also be filed outside

of the statute of repose even though not explicitly stated it was filed outside of both,

as was the case in Bockweg.

b. Williams v. Lynch

More recently, this Court in Williams v. Lynch addressed issues nearly

identical to those here. In Williams, the plaintiff had timely filed the first complaint

under the same statute herein within the three-year statute of limitations,

voluntarily dismissed the claim pursuant to Rule 41(a)(1), and refiled within the one-

year limit provided by the savings provision of Rule 41(a)(1), and after the four-year

statute of repose provided by N.C. Gen. Stat. § 1-15(c). Williams, 225 N.C. App. at 523-

26, 741 S.E.2d at 374-76.

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Opinion of the Court

While the overarching issue in Williams focused on the substance and nature

of a claim that could be refiled under the savings provision and after the three-year

statute of limitations, this Court reasoned the “claim in the second complaint related

back under Rule 41(a)(1) to the filing of the negligence claim in the first complaint[]”

and “[s]ince there [was] no dispute that the first complaint was timely filed, the trial

court erred in granting [defendant’s] motion to dismiss on statute of limitations

grounds as to the ‘Professional Malpractice’ claim.” Id. at 529, 741 S.E.2d at 377.

A refiled claim, which may otherwise exceed the statute of limitations or

statute of repose, can survive under the savings provision of Rule 41(a)(1) because

the refiled claim will relate back to the original filing date. Id. at 526, 741 S.E.2d at

375. Therefore, the refiled complaint in Williams was considered to have commenced

at the time of the initial timely-filed complaint and did not exceed the bar of the

statute of limitations or repose. Id. at 528-29, 741 S.E.2d at 377. Examining all

relevant dates, this Court has held the savings provision of Rule 41(a)(1) allows a

claim of the same nature to be refiled after the four-year statute of repose in N.C.

Gen. Stat. § 1-15(c) has expired. See id. at 529, 741 S.E.2d at 377. The refiled claim

relates back to the timely filing date of the initial complaint. Id.

While the Court in Williams does not explicitly state it is considering a three-

year statute of limitations or a four-year statute of repose, clearly a “Professional

Malpractice” claim is at issue and the Court cites cases referencing the same

applicable professional malpractice statute, N.C. Gen. Stat. § 1-15(c). Id. at 528-29,

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741 S.E.2d at 377. In Williams, the facts logically allow us to conclude the last act of

negligence by the defendants was 13 April 2004, as it is the last stated negligent act

by defendants in the facts before the plaintiff filed the original claim. Id. at 525, 741

S.E.2d at 375. That date, along with the date of the original filing, voluntary

dismissal, and refiling dates, demonstrates that the original claim was filed before

the expiration of the statute of limitations and the refiled claim was filed within one

year from the voluntary dismissal, but after the four year statute of repose. This

Court permitted the savings provision of Rule 41(a)(1) to allow a refiled claim of the

same nature sub judice to proceed after the four-year statute of repose in N.C. Gen.

Stat. § 1-15(c) has expired because the refiled claim related back to the timely-filed

initial complaint. See id. at 529, 741 S.E.2d at 377.

c. Dissent Cases Distinguished

Our colleague denies the guidance available from Bockweg and Williams but

does not cite any case analogous to the case at hand. Only one case in our colleague’s

analysis addresses both Rule 41(a)(1) and a statute of limitations or statute of repose.

The case at hand presents the opportunity to distinguish and discuss the various

cases cited by our colleague and how each can offer guidance, even though they may

not explicitly use certain words.

Christie v. Hartley Const., Inc. discusses differences between a statute of

limitations and a statute of repose. Christie discusses a purported statute of repose

contained in N.C. Gen. Stat. § 1-50(a)(5) when applied to a construction case. While

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Opinion of the Court

offering insight into application of a similar statute of repose and the differences

between a statute of repose and a statute of limitations, this case does not address

how a statute of repose may interact with a voluntarily-dismissed claim that has been

refiled or the application of Rule 41(a)(1). See generally Christie v. Hartley Const.,

Inc., 367 N.C. 534, 766 S.E.2d 283 (2014). There was not a refiled complaint in this

case.

Hargett v. Holland further discusses differences between statutes of

limitations and statutes of repose. While Hargett does involve the relevant statute,

N.C. Gen. Stat. § 1-15(c), it too does not involve a timely voluntarily dismissed claim

that has been refiled and the application of Rule 41(a)(1). See generally Hargett, 337

N.C. 651, 447 S.E.2d 784. Hargett offers valuable guidance on the distinctions

between a statute of limitation and a statute of repose and we quoted it above for this

reason. Our colleague’s analysis fails in its application when it quotes Hargett in

support of its notion that a claim is not maintainable when filed after the expiration

of the statute of repose no matter what.

The Court in Hargett addresses a claim: (1) that has not been voluntarily

dismissed; (2) not been refiled; (3) discusses primarily the “last act” date of the

defendants; and (4) was “filed more than 13 years after” what was determined to be

the “last act” of defendants. Id. The initial complaint in Hargett was not timely filed,

in stark contrast to the timely-filed initial complaint sub judice. Unlike Hargett,

Defendants here cannot claim shock, surprise, or lack of knowledge of the pending

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Opinion of the Court

claims to be prejudiced when they presented affidavits in support of Plaintiff in the

underlying action.

The Court in Black v. Littlejohn asserts “repose serves as an unyielding and

absolute barrier that prevents a plaintiff’s right of action even before his cause of

action may accrue . . . .” Black, 312 N.C. at 633, 325 S.E.2d at 475. We agree and cite

this case for the same reasons we cited and analyzed Hargett. Black primarily focuses

on the “one year from discovery rule” contained in N.C. Gen. Stat. § 1-15(c), and how

it operates to determine the proper “last act” date of the defendant. Id. However,

Black does not consider a voluntarily dismissed and timely refiled claim or Rule

41(a)(1) at all. See generally id. It is easily distinguishable from this case and is of

limited guidance on the interaction of the relevant statutes.

Monson v. Paramount Homes, Inc. states, “[w]hile equitable doctrines may toll

statutes of limitation, they do not toll substantive rights created by statutes of

repose.” Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 240, 515 S.E.2d 445,

449 (1999). Rather than involving a voluntarily dismissed timely claim, Monson

involves the issue of when the statute of repose would begin to run when subsequent

repairs have been made to a construction project. See generally id. Specifically, it

asked whether subsequent repairs would qualify as the “last act.” This Court

ultimately decided they did not. Id. at 242, 515 S.E.2d at 450. Allowing subsequent

repairs to be a “last act” to extend or restart a statute of repose each time a repair

was made could create a potential infinite period of time and, would discourage a

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Opinion of the Court

party from making repairs for fear of extending the statute of repose. Id. at 241, 515

S.E.2d at 450. The facts of Monson are clearly distinguishable from the case sub

judice making it poor support for our colleague’s analysis. In the case sub judice,

there are no “repairs” at issue to create a potential infinite period of time for a claim

to be brought. Rather, this case revolves around a voluntarily dismissed timely claim

that has been refiled under Rule 41(a)(1), an issue which Monson does not even

remotely consider. Rule 41(a)(1) only allows a timely and voluntarily dismissed claim

to be refiled within one year after being voluntarily dismissed. N.C. Gen. Stat. § 1A-

1, Rule 41(a)(1). A logical application of the statutes does not create an infinite period

of time for the filing of claims.

The plaintiff in Goodman v. Holmes & McLaurin Attorneys at Law attempted

to apply N.C. Gen. Stat. § 1-50(e) to their legal malpractice claim. N.C. Gen. Stat. §

1-50(e) states the statute of repose “shall not be asserted as a defense by any person

who shall have been guilty of fraud . . . or to any person who shall wrongfully conceal

any such fraud, or willful or wanton negligence.” N.C. Gen. Stat. § 1-50(e); Goodman

v. Holmes & McLaurin Att’ys at Law, 192 N.C. App. 467, 474, 665 S.E.2d 526, 531-32

(2008) (cleaned up). This Court determined N.C. Gen. Stat. § 1-15(c) contained no

comparable exception to prohibit a defendant from raising the issue of statute of

repose and stated we have “consistently refused to apply equitable doctrines to estop

a defendant from asserting a statute of repose defense in the legal malpractice context

. . . .” Goodman, 192 N.C. App. at 474-75, 665 S.E.2d at 532. Goodman is

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Opinion of the Court

distinguishable from the issues here because the claim there was brought seven years

after the last act date, making it clearly barred by the statute of repose. Goodman

provides no insight into the interactions of Rule 41(a)(1) and the statute of repose. It

only provides background to how the statute of repose has been applied standing

alone.

The facts in Brisson v. Kathy A. Santoriello, M.D., P.A. at first glance appear

to be similar to those sub judice, but, after reviewing the relevant dates in the case,

it is easily distinguishable. See generally Brisson v. Kathy A. Santoriello, M.D., P.A.,

351 N.C. 589, 528 S.E.2d 568 (2000). The date of the “last act” in Brisson was 27 July

1994. Id. at 591-94, 528 S.E.2d at 569-71. The plaintiff there filed its initial suit on

3 June 1997. Id. at 591, 528 S.E.2d at 569. On 22 August 1997, defendant filed a

motion to dismiss pursuant to Rule 9(j) and 12(b)(6). Id. On 30 September 1997,

plaintiff filed a motion to amend its initial complaint or, in the alternative, to

voluntarily dismiss its initial complaint pursuant to Rule 41(a)(1). Id. at 592, 528

S.E.2d at 569. The trial court denied their motion to amend its complaint, so on 6

October 1997 plaintiff voluntarily dismissed its initial complaint and refiled it on 9

October 1997 with the Rule 9(j) certification now included. On 20 October 1997,

defendants filed a motion for judgment on the pleadings arguing the refiled claim was

barred by the applicable “statutes of limitations and repose.” Id. at 592, 528 S.E.2d

at 570. The Court was tasked with determining whether the refiled complaint could

relate back to the date of the initial complaint, even though the Rule 9(j) certification

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Opinion of the Court

was not attached to the initial complaint, which ultimately the Court determined it

could.

This case offers excellent history into the purpose and application of Rule

41(a)(1); however, a major distinguishing factor between Brisson, and Bockweg,

Williams, and the case sub judice is that the statute of repose could not truly have

been a factor because the refiled complaint was filed after the statute of limitations

had expired but before the statute of repose had expired. Bockweg, Williams, and our

present case all involve a refiled claim being filed after the statute of repose has

passed.

Our colleague emphasizes Brisson uses the language “statute of limitations”

when discussing the application of Rule 41(a)(1) and implies every statement the

Court makes involving the application must only apply to statutes of limitation, not

statutes of repose. However, although there was never a true question in Brisson of

whether the statute of repose had been violated as no filing date therein ever

exceeded four years from the last act, the Court offered an analysis into Rule

41(a)(1)’s application suggesting it is meant to “salvage” refiled voluntarily dismissed

claims even when refiled after the statute of repose expiration date:

[t]he purpose of our long-standing rule allowing a plaintiff

to take a voluntary dismissal and refile the claim within

one year even though the statute of limitations has run

subsequent to a plaintiff’s filing of the original complaint is

to provide a one-time opportunity where the plaintiff, for

whatever reason, does not want to continue the suit. The

range of reasons clearly includes those circumstances in

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Opinion of the Court

which the plaintiff fears dismissal of the case for rule

violations, shortcomings in the pleadings, evidentiary

failures, or any other of the myriad reasons for which the

cause of action might fail. The only limitations are that the

dismissal not be done in bad faith and that it be done prior

to a trial court’s ruling dismissing plaintiff’s claim or

otherwise ruling against plaintiff at any time prior to

plaintiff resting his or her case at trial.

Id. at 597, 528 S.E.2d at 573 (emphasis added). Additionally, the Court stated, “on 6

October 1997, plaintiffs voluntarily dismissed this action and, thus, were granted one

year within which to refile.” Id. at 594, 528 S.E.2d at 571. Looking carefully at

relevant dates, the statute of repose would have expired on 27 July 1998. Id. Thus,

the Court’s language alludes to the scenario that plaintiffs would have been able to

refile any time up until 6 October 1998. This language suggests the one-year period

to refile a claim after a voluntary dismissal is not cut short by a statute of repose.

5. Application of the Statutes Together

Based upon our analysis of both statutes, we conclude the Rule 41(a)(1) savings

provision, because of its relation-back component, does not function as an exception

to the statute of repose and both statutes can apply without conflict. Rule 41(a)(1)

must first be applied to determine the appropriate commencement date, then using

the appropriate commencement date, we can consider whether a claim is time barred

by either the statute of limitations or the statute of repose.

When applying Rule 41(a)(1) as the first step and then considering N.C. Gen.

Stat. § 1-15(c) as the second step, it is clear a refiled complaint, under a very specific

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Opinion of the Court

set of circumstances, can proceed even when the date it is refiled falls more than four

years after the last date of negligence.

D. Application to Puma

The trial court determined Defendants’ last date of negligence giving rise to

the cause of action is 22 April 2019, even though the trial court did not grant

Defendants’ motion to withdraw as counsel for Plaintiff until 8 July 2019. On 17

September 2020, Plaintiff filed its Initial Complaint. On 24 August 2022, Plaintiff

voluntarily dismissed the Initial Complaint pursuant to Rule 41(a)(1). Plaintiff filed

the Refiled Complaint on 6 June 2023. Based on the trial court’s finding of 22 April

2019 as the last date of negligence, notwithstanding Defendant remained counsel of

record for Plaintiffs, the three-year statute of limitations ended on 22 April 2022, and

the four-year statute of repose ended on 22 April 2023. It is undisputed Plaintiff’s

Initial Complaint was timely filed within both the applicable statute of limitations

and statute of repose.

Plaintiff’s Initial Complaint asserts only one cause of action, that Defendants

were “negligent in their representation” of Plaintiff in connection with the

Defamation Case. However, in its Refiled Complaint, Plaintiff asserts two causes of

action (1) legal malpractice and negligence, and (2) gross negligence. Because “the

relation-back provision in Rule 41(a)(1) only applies to those claims in the second

complaint, that were included in the [timely] voluntarily-dismissed first complaint[,]”

only Plaintiff’s claim of legal malpractice and negligence remains viable as it was

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Opinion of the Court

asserted in both the timely Initial Complaint and the Refiled Complaint. Williams,

225 N.C. App. at 526, 528-29, 741 S.E.2d at 376-77 (emphasis added) (noting “[i]t is

immaterial that the first complaint identified the claim as a negligence claim and the

second complaint identified the claim as a professional malpractice claim” because

“claims ‘arising out of the performance of or failure to perform professional services’

based on negligence . . . are in the nature of ‘malpractice’ claims.”). Notwithstanding

the fact Plaintiff’s claim for gross negligence arises out of the same events as its claim

for legal malpractice and negligence, “binding precedent requires that we look only

at whether the claims in the second complaint were included in the first complaint.”

Williams, 225 N.C. App. at 523, 741 S.E.2d at 374 (emphasis added). Therefore, the

cause of action for gross negligence cannot relate back to the date of the initial

complaint.

Thus, we conclude Plaintiff’s claim for legal malpractice and negligence in its

Refiled Complaint relates back under Rule 41(a)(1) to the filing of its Initial

Complaint, but its claim for gross negligence does not and was properly dismissed.

III. Conclusion

Because the savings provision of Rule 41(a)(1) of the North Carolina Rules of

Civil Procedure allows a timely-filed claim to be refiled within one year of its

voluntary dismissal and this one year time period is not cut short by the four-year

statute of repose contained in N.C. Gen. Stat. § 1-15(c), the trial court erred in

granting Defendants’ motion to dismiss the Refiled Complaint. We hold Plaintiff’s

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PUMA BIOTECH., INC. V. HEDRICK GARDNER

Opinion of the Court

cause of action for legal malpractice and negligence is not barred by the applicable

statute of repose and reverse the trial court’s dismissal of the claim. Presuming the

trial court correctly determined the last act of negligence date, even though the trial

court did not grant Defendants’ motion to withdraw as counsel for Plaintiff until 8

July 2019, Plaintiff’s cause of action for gross negligence is barred by the statute of

repose and was properly dismissed. We affirm in part, reverse in part, and remand

to the trial court for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Judge TYSON concurs.

Judge FREEMAN concurring in part and dissenting in part by separate

opinion.

- 36 -

No. COA24-722 – Puma Biotech., Inc. v. Hendrick Gardner Kincheloe & Garofalo

L.L.P. and David L. Levy

FREEMAN, Judge, concurring in part and dissenting in part.

I concur with the majority’s determination of the date of defendants’ last act,

but I write separately to address the interplay between the statute of repose and the

savings provision. As neither this Court nor our Supreme Court have addressed

whether the savings provision provides an exception to the statute of repose, this

Court must engage in meaningful statutory interpretation to answer the question

posed in this case. Because the statute of repose explicitly states, “in no event shall

an action be commenced more than four years from the last act of the defendant

giving rise to the cause of action,” N.C.G.S. § 1-15(c) (2023) (emphasis added), the

savings provision states, “a new action based on the same claim may be commenced

within one year after such dismissal,” N.C.G.S. § 1A-1, Rule 41 (a)(1) (2023)

(emphasis added), and the savings provision does not provide an exception to the

statute of repose. Accordingly, I respectfully dissent from the majority’s reversal of

the trial court’s order granting defendants’ motion to dismiss.

III. Discussion

Plaintiff contends the trial court erred in granting defendants’ motion to

dismiss on the grounds that plaintiff’s refiled complaint was untimely under Rule

41(a)(1). In other words, the issue presented on appeal is whether Rule 41(a)(1)’s

savings provision creates an exception to the statute of repose.

A. Statutes of Limitations and Repose

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

Though our precedent does not address the precise question raised in this

appeal—whether the savings provision can defeat the statute of repose for

professional malpractice claims—it is unquestionable that: (1) the savings provision

applies to statutes of limitations, and (2) statutes of limitations are not equivalent to

statutes of repose. Our jurisprudence addressing both statutes of limitations and

statutes of repose has highlighted that “these statutes exhibit significant differences

in both form and function that have not always proved clear in practice.” Christie v.

Hartley Const., Inc., 367 N.C. 534, 538 (2014).

Statutes of limitations provide a limitation period that begins “when the

plaintiff’s cause of action accrues, typically when the plaintiff is injured or discovers

he or she has been injured.” Id. (cleaned up). Therefore, statutes of limitations

function “to prevent the problems inherent in litigating claims in which evidence has

been lost, memories have faded, and witnesses have disappeared[.]” Id. (cleaned up).

These statutes “function as affirmative defenses,” are “subject to equitable defenses,”

and “are procedural, not substantive” legislative tools to “determine not whether an

injury has occurred, but whether a party can obtain a remedy for that injury.” Id.

In contrast, statutes of repose begin “to run automatically” from a “defendant's

last act or omission that at some later point gives rise to the plaintiff's cause of action”

because these statutes “are intended to mitigate the risk of inherently uncertain and

potentially limitless legal exposure.” Id. at 539. “[S]tatutes of repose give potential

defendants a degree of certainty and control over their legal exposure,” and therefore

2

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

“function as unyielding and absolute barriers to litigation, are substantive in nature,

and are not subject to equitable doctrines.” Id.

Our Supreme Court’s opinion in Hargett v. Holland details the distinction

between the statute of limitation and the statute of repose for professional

malpractice claims like the one at issue in this case. 337 N.C. 651, 654–55 (1994).

There, our Supreme Court explained:

Unlike statutes of limitations, which run from the time a

cause of action accrues, statutes of repose . . . create time

limitations which are not measured from the date of injury.

These time limitations often run from defendant's last act

giving rise to the claim or from substantial completion of

some service rendered by defendant. A statute of repose

creates an additional element of the claim itself which must

be satisfied in order for the claim to be maintained.

Unlike a limitation provision which merely makes a claim

unenforceable, a condition precedent establishes a time

period in which suit must be brought in order for a cause of

action to be recognized. If the action is not brought within

the specified period, the plaintiff literally has no cause of

action. The harm that has been done is damnum absque

injuria—a wrong for which the law affords no redress.

Hargett, 337 N.C. at 654–55 (1994) (emphasis added) (cleaned up).

Further, the Court restated its holding from Black v. Littlejohn, declaring:

[t]he period contained in the statute of repose begins when

a specific event occurs, regardless of whether a cause of

action has accrued or whether an injury has resulted. . . .

Thus, the repose serves as an unyielding and absolute

barrier that prevents a plaintiff's right of action even before

his cause of action may accrue, which is generally

recognized as the point in time when the elements

necessary for a legal wrong coalesce.

3

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

Id. at 655 (emphasis added) (quoting Black v. Littlejohn, 312 N.C. 626, 633 (1985)).

“Regardless of when plaintiff’s claim might have accrued, or when plaintiffs might

have discovered their injury, because of the four-year statute of repose, their claim is

not maintainable unless it was brought within four years of the last act of defendant

giving rise to the claim.” Id.

Therefore, “[w]hile equitable doctrines may toll statutes of limitation, they do

not toll substantive rights created by statutes of repose.” Monson v. Paramount

Homes, Inc., 133 N.C. App. 235, 240 (1999) (cleaned up). Discussing the statute of

repose that governs improvements to real property, we have explained the absurdity

in “allow[ing] the statute of repose to toll or start running anew each time a repair is

made” because the result “would subject a defendant to potential open-ended liability

for an indefinite period of time, defeating the very purpose of statutes of repose such

as N.C. Gen. Stat. § 1–50(5).” Id. (emphasis added) (cleaned up).

In Goodman v. Holms & McLaurin Attorneys at Law, this Court explained our

appellate courts refuse to “apply principles of equity to the bar imposed by the statute

of repose” in section 1-15(c). 192 N.C. App. 467, 476 (2008). In that case, the plaintiff

urged this Court to apply case law which dealt with a different statute of repose, and

we refused to apply that line of cases because subsection 1-15(c) “contains no

comparable exception to its four year statute of repose.” Id. at 474 (emphasis added).

Cf. N.C.G.S. § 1–50(a)(5), (e) (2023). The plaintiff further relied on Duke Univ. v.

Stainback, 320 N.C. 337 (1987), and this Court noted such reliance was “misplaced”

4

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

because the Supreme Court in Duke “was not presented with a statute of repose issue,

and the statute of repose was not addressed in the opinion.” Id. at 475. Accordingly,

this Court held the trial court did not err in dismissing plaintiff’s professional

negligence claim as barred by the statute of repose when the plaintiff brought his

professional malpractice action against the defendant “nearly seven years after” the

defendant’s last act.3 Id. at 475. This Court noted,

it is for the legislature, and not the courts, to establish

statutes of limitations, statutes of repose, and any

exceptions to those rules. It is not the role of the courts to

create exceptions to the laws established by the legislature

where the intent of the legislature is made manifestly clear

on the face of the statute.

Id. at 475–76 (emphasis added) (cleaned up).

B. Rule 41(a)(1) Savings Provision

Rule 41(a) of our Rules of Civil Procedure governs voluntary dismissal in civil

lawsuits and allows a plaintiff to voluntarily dismiss a case without prejudice through

(1) notice, (2) stipulation, or (3) order of the court. See generally N.C.G.S. § 1A-1, Rule

41 (a)(1)(i)–(a)(2) (2023). It is undisputed plaintiff in the present case voluntarily

dismissed its initial complaint and complied with Rule 41(a).

Our precedent firmly establishes “Rule 41(a) dismissal strips the trial court of

3 The underlying professional malpractice claim in Goodman is based upon defendant-

attorney’s filing of a “voluntary dismissal without prejudice, without the knowledge or consent of the

plaintiff.” 192 N.C. App. 467 at 469. Therefore, this Court’s opinion in Goodman briefly references

Rule 41(a)(1)’s savings provision, however, it is not discussed for the application of Rule 41(a)(1) and

the statute of repose as demonstrated here. Rather, references to Rule 41(a)(1) in that case are to

determine defendant-attorney’s last act of negligence. Id. at 476.

5

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

authority to enter further orders in the case, except as provided by Rule 41(d)[.]”

Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 593 (2000) (cleaned up).

This is because “the effect of a judgment of voluntary dismissal is to leave the plaintiff

exactly where he or she was before the action was commenced.” Id. (cleaned up). In

other words, “[a]fter a plaintiff takes a Rule 41(a) dismissal, there is nothing the

defendant can do to fan the ashes of that action into life, and the court has no role to

play.” Id. (cleaned up).

However, Rule 41(a)(1) also provides:

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 unless a stipulation filed under (ii) of this

subsection shall specify a shorter time.

N.C.G.S. § 1A-1, Rule 41 (a)(1) (2023). Put simply, the above-italicized portion of Rule

41(a)(1)—referred to by our jurisprudence as the Rule 41(a)(1) savings provision—

allows an “action [that] was originally commenced within the period of the applicable

statute of limitations” to possibly be “recommenced within one year after the

dismissal, even though the base period may have expired in the interim.” Brisson,

351 N.C. at 594 (emphasis added). Therefore, a party may “dismiss an action that

originally was filed within the statute of limitations and then refile the action after

the statute of limitations ordinarily would have expired.” Id. (emphasis added)

(cleaned up).

6

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

C. Repose and Relation Back Precedent

I agree with the majority’s summation that our Courts have “never explicitly

stated whether Rule 41(a)(1) is applied in the same manner when the one year period

exceeds the time period of a statute of repose.” However, the majority also reasons

that because of the savings provision’s relationship with the statute of limitation, “a

common sense application of our jurisprudence to the relation-back component of

Rule 41(a)(1) allows a properly refiled claim to avoid both a statute of limitations and

a statute of repose.” Therefore, “[t]he commencement date of the action is deemed to

be the same as the initial complaint.” This is not a commonsense application of our

jurisprudence. See Losing v. Food Lion, L.L.C., 185 N.C. App. 278, 283 (2007) (“Under

North Carolina law, a plaintiff may refile within one year a lawsuit that was

previously voluntarily dismissed, and the refiled case will relate back to the original

filing for purposes of tolling the statute of limitations[.]”(emphasis added)).

Previously, our Courts have used the phrase “statute of repose” to encompass

both statutes of repose and statutes of limitations and interchangeably used the

words “repose” and “limitations.” See Christie, 367 N.C. at 538 (citations omitted).

But our Supreme Court recently reinforced “important distinctions” to consider when

analyzing or applying a statute of limitation versus a statute of repose. See McKinney

v. Goins, 387 N.C. 35, 48 n.7 (2025); see also Zander v. Orange Cnty., 376 N.C. 513,

520 (2020) (“The term statute of repose is used to distinguish ordinary statutes of

limitation from those that begin to run at a time unrelated to the traditional accrual

7

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

of the cause of action.” (cleaned up)); Head v. Gould Killian CPA Grp., P.A., 371 N.C.

2, 11 (2018) (“Unlike statutes of limitations, which run from the time a cause of action

accrues, statutes of repose . . . create time limitations which are not measured from

the date of injury.” (cleaned up)). This Court has clearly recognized that such

generalization of these statutes is no longer appropriate. See Gaston Cnty. Bd. of

Educ. v. Shelco, LLC, 285 N.C. App. 80, 85 (2022) (“We note that, as our Supreme

Court has explained, statutes of limitations and statutes of repose are different: where

statutes of limitations are clearly procedural, affecting the remedy directly and not

the right to recover, the statute of repose . . . acts as a condition precedent to the

action itself.” (cleaned up)).

The majority contends “[t]his case presents the opportunity to distinguish and

discuss the cited cases to show how each can be used for guidance even though they

may not explicitly use certain words.” However, the majority’s application of case law

fails to meaningfully distinguish between statutes of repose and limitations and

erroneously equates the relationship between the statute of limitation and the

savings provision to the relationship between the statute of repose and the savings

provision.4 This is like comparing apples to oranges—“a statute of limitations is not

4 Further, this application and reasoning negates the majority’s claim that it treats the “four-

year outer limit [of section 1.15(c)] as a statute of repose” regardless of whether our jurisprudence

has referenced to that section as a statute of repose. Because the majority has oversimplified our

precedent, application of the statute of limitation and the statute of repose produces the same result

when applied to the savings provision. Distillation of our jurisprudence requires a more meticulous

methodology than the majority applies.

8

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

the same as a statute of repose.” McKinney, 387 N.C. at 48 n.7.

For example, Sweet v. Boggs, 134 N.C. App. 173 (1999), and Spoor v. Barth,

257 N.C. App. 721 (2018), cannot stand for the proposition that “the relation-back

component of Rule 41(a)(1) allows a properly refiled claim to avoid” both “a statute of

limitations and a statute of repose” because “[t]he commencement date of the action

is deemed to be the same as initial complaint” where such cases do not address the

statute of repose whatsoever.5 Because the majority primarily relies on case law that

does not meaningfully engage with the statute of repose—this case law does not quote

or define the language of the statute of repose, apply the statute of repose, or make a

holding related to the statute of repose—the majority repeatedly asks its readers to

ignore the settled principle that “a statute of limitations is not the same as a statute

of repose.” McKinney, 387 N.C. at 48 n.7.

D. “Analogous” Case Law

The majority further alleges that my analysis fails to cite any case analogous

to Bockweg v. Anderson, 328 N.C. 436 (1991), and Williams v. Lynch, 225 N.C. App.

522 (2013). The majority’s contention appears to once again imply the statute of

limitation should be substituted for the statute of repose. Bockweg and Williams,

“can be used to help understand the interplay between Rule 41(a)(1) and N.C. Gen.

5 The statute of repose is not discussed in these cases because the relation-back principle

applies to toll statutes of limitations. See Losing, 185 N.C. App. at 283. Statutes of repose do not

toll, because such statutes are substantiative and cannot toll. See Monson, 133 N.C. App. at 240.

9

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

Stat. § 1-15(c),” as it relates to section 1-15(c)’s statute of limitation, but the statute

of limitation is not at issue in the present case. See also Goodman, 192 N.C. App. at

475.

As neither Bockweg, Williams, nor any other case, address the interplay

between the two statutes at issue in this case—with the word “repose” appearing only

once in an inapposite parenthetical in Williams and being entirely absent in

Bockweg—these cases fail to resolve any application between the savings provision

and the statute of repose.6

Our Supreme Court in Bockweg explicitly stated the issue in that case was “the

effect of plaintiffs’ voluntary dismissal under the Federal Rules in a federal court

sitting in diversity applying North Carolina law on a subsequent refiling outside the

statute of limitations in state court.” 328 N.C. at 442 (emphasis added). The Court

held “that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a

timely filed action in a federal court sitting in diversity jurisdiction and applying

6 Specifically, the majority accuses me of asserting that to use “Bockweg and Williams, as

guidance to help solve the issue presented in the case at hand, the word ‘repose’ must be explicitly

stated,” and because of this, I must “also conclude no statute of ‘repose’ exists under N.C. Gen. Stat. §

1-15(c).” This strawman argument is nonsensical. First, though this should be glaringly obvious, the

problem with relying on these cases is not the absence of a “magic word”—it is the absence of any

meaningful analysis regarding the issue presented in this appeal. If these cases addressed the four-

year bar imposed by subsection 1-15(c) using any other term than repose, I would look to them for

guidance. They do not. Second, as previously discussed, the majority reads our jurisprudence related

to statutes of limitations and the savings provision, like Bockweg and Williams, to infer identical

analyses to the statute of repose. This reading erases the “important distinction” between the statutes.

See Goins, 387 N.C. at 48 n.7; see also Goodman, 192 N.C. App. at 475 (noting that, in a case analyzing

the statute of repose, the plaintiff’s “reliance” on a case addressing the statute of limitation was

“misplaced” because “[t]he Court” in the plaintiff’s cited case “was not presented with a statute of

repose issue, and the statute of repose was not addressed in the opinion.”).

10

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

North Carolina substantive law, and refiles the action in a North Carolina state court,

may invoke the one-year savings provision in N.C.G.S. § 1A–1, Rule 41.” Id. at 450.

As this holding is limited to the Court’s interpretation of the statute of limitation, it

offers no guidance on the statute of repose.

Similarly, in Williams, this Court did not discuss the statute of repose or its

relationship to the Rule 41 savings provision. Rather, this Court only discussed

voluntary dismissal and the application of Rule 41(a)(1)’s relation-back provision. See

Spoor v. Barth, 257 N.C. App. 721 (2018) (citing Williams for the issue of timeliness

under Rule 41). The sole mention of the statute of repose is in reference to a separate

case’s holding that “fraud does not constitute professional malpractice for purposes of

N.C. Gen. Stat. § 1-15(c)’s statutes of limitations and repose.” Williams, 225 N.C.

App. at 529 (citing Sharp v. Teague, 113 N.C. App. 589, 592 (1994)). As this case did

not address the statute of repose, it has no bearing on the issue presented in this case.

The majority reads Bockweg and Williams as guidance that “resolve our

present issue.” They do not. Because neither case addresses the statute of repose or

its interplay with the savings provision, they offer no guidance on the present issue.

Similarly, the majority relies on our Supreme Court’s opinion in Pyco Supply

Co. v. Am. Centennial Ins., 321 N.C. 435, 440–41 (1988), “[t]o help provide guidance

on our Court’s treatment of the relation-back of a claim in general.” While our

Supreme Court stated in Pyco that “whether a time restriction is deemed a statute of

limitation or repose” was not a determinative factor for relation back of a claim

11

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

asserted in an amended complaint, id., Pyco does not offer “valuable guidance” for the

case at hand because plaintiff refiled its complaint. Although the majority

acknowledges “a refiled complaint and an amended complaint are separate and

distinct,” it nevertheless attempts to supplant one distinct legal concept for another.

Because our Supreme Court’s holding in Pyco is narrow and only relates to amended

complaints, it does not offer meaningful guidance on the issue presented in this case.

See 321 N.C. 435 at 440 (“We hold that the determination of whether a claim asserted

in an amended pleading relates back does not hinge on whether a time restriction is

deemed a statute of limitation or repose.”).

The majority’s attempt to diminish important legal distinctions in our

jurisprudence by reframing my dissent as an issue of rigid semantics is perplexing at

best, and disingenuous at worst, where the crux of the present case relies on statutory

interpretation. Though novel or complex legal issues require us to look critically at

our precedent to glean guidance from analogous or instructive contexts where

necessary, such novelty or complexity does not allow for our Courts to blatantly

pervert precedent and insert dispositive legal terms into statutes. Here, the plain

language of the statutes speaks for itself. “It is not the role of the courts to create

exceptions to the laws established by the legislature where the intent of the

legislature is made manifestly clear on the face of the statute.” Goodman, 192 N.C.

App. at 475–76 (cleaned up).

E. Statutory Interpretation

12

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

The majority holds Rule 41(a)(1) is an exception to the statute of repose, and

therefore, its “plain language reading of Rule 41(a)(1) does not conflict with the

statute of repose’s ‘unyielding and absolute’ time bar because, when considering the

context, of a ‘new action based on the same claim’ that ‘may be commenced’ is related

back to the commencement of the initial complaint.” Far from adhering to the plain

language of these statutes, the majority’s holding judicially amends them to fit into

its twisted reading of inapposite case law.

In matters of statutory construction, our primary task is to

ensure that the purpose of the legislature, the legislative

intent, is accomplished. Legislative purpose is first

ascertained from the plain words of the statute. Moreover,

we are guided by the structure of the statute and certain

canons of statutory construction. Courts also ascertain

legislative intent from the policy objectives behind a

statute's passage and the consequences which would follow

from a construction one way or another. A construction

which operates to defeat or impair the object of the statute

must be avoided if that can reasonably be done without

violence to the legislative language. An analysis utilizing

the plain language of the statute and the canons of

construction must be done in a manner which harmonizes

with the underlying reason and purpose of the statute.

Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656 (1991) (emphasis

added) (cleaned up). Put simply, “[s]tatutes dealing with the same subject matter

must be construed in pari materia and harmonized, if possible, to give effect to each.”

Bd. of Adjust. of Town of Swansboro v. Town of Swansboro, 334 N.C. 421, 427 (1993).

“In statutory interpretation, we take the statute as we find it . . . because a

law is the best expositor of itself.” N.C. Dep’t of Env't Quality v. N.C. Farm Bureau

13

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

Fed’n, Inc., 291 N.C. App. 188, 193 (2023) (cleaned up). “It should go without saying

that we may not interpret what has no need of interpretation and, when the words

have a definite and precise meaning, we cannot go elsewhere in search of conjecture

in order to restrict or extend the meaning.” State v. Daw, 386 N.C. 468, 476 (2024)

(cleaned up).7 Contrary to the majority’s “reasoning,” a judge does not have the

constitutional authority to judicially rewrite a valid law passed by our legislature

based on what he or she feels is “commonsense.”

“The statutes of limitations and repose for professional malpractice claims . . .

are set out in N.C.[G.][S.] § 1-15(c)[.]” Carle v. Wyrick, Robbins, Yates & Ponton, LLP,

225 N.C. App. 656, 659 (2013). Specifically, subsection (c) declares:

Provided nothing herein shall be construed to reduce the

statute of limitation in any such case below three years.

Provided further, that in no event shall an action be

commenced more than four years from the last act of the

defendant giving rise to the cause of action[.]

N.C.G.S. § 1-15(c) (2023) (emphasis added).

“It is well established that the word ‘shall’ is generally imperative or

mandatory when used in our statutes.” Morningstar Marinas/Eaton Ferry, LLC v.

Warren Cty., 368 N.C. 360, 365 (2015) (cleaned up). Therefore, the statute of repose

7 The majority’s apparent implication that Daw is not instructive here because it was a

criminal matter is puzzling. Barring the rule of lenity, the process of statutory construction does not

change based on the nature of the case. The majority’s choice to ignore Daw and other instructive

cases regarding statutory interpretation, in an opinion regarding statutory interpretation, and to

focus instead on cases that do not address the statute of repose’s interplay with the savings

provision, is bizarre to say the least.

14

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

can reasonably be read as “an unyielding and absolute barrier,” Hargett, 337 N.C. at

655 (emphasis added) (cleaned up), where it precisely states, “in no event shall an

action be commenced,” N.C.G.S. § 1-15(c).

The savings provision provides that if “an action commenced within the time

prescribed therefore, . . . 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.G.S. § 1A-1, Rule 41(a)(1) (emphasis added). Because the savings

provision allows “a new action” to “be commenced,” id., and because the statute of

repose provides that “in no event shall an action be commenced more than four years

from the last act of the defendant,” N.C.G.S. § 1-15(c), a party cannot use the savings

provision to evade the statute of repose’s “unyielding and absolute barrier,” Hargett,

337 N.C. at 655 (cleaned up), by commencing a new action after the repose period has

expired.

The statutes could be read, as the majority describes, such that the purpose of

the statute of repose is frustrated by the savings provision. However, such reading

would require us to presuppose that the savings provision was intended to resurrect

claims barred by the statute of repose—not just claims otherwise barred by the

statute of limitation. This reading, regardless of whether the majority thinks it

comports with their “commonsense,” directly contradicts the bedrock “presum[ption]

that the means employed by the Legislature to express its will are adequate to the

purpose and do express that will correctly.” Daw, 386 N.C. at 476 (emphasis added)

15

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

(citation omitted); see also Bd. of Educ. of Onslow Cnty. v. Bd. of Cnty. Comm’rs of

Onslow Cnty., 240 N.C. 118, 126 (1954) (“An unnecessary implication arising from

one section, inconsistent with the express terms of another on the same subject, yields

to the expressed intent, and the two sections are not repugnant.” (citations omitted)).

The majority’s reading requires us to presume the legislature either intended:

(1) the statute of repose to read “in no event, except for those circumstances provided

in Rule 41(a)(1), shall an action be commenced more than four years from the last act

of the defendant,” or (2) the savings provision to read “a[n] new action may be

[re]commenced within one year.” Such an interpretation runs afoul of the basic tenet

that “a legislature says in a statute what it means and means in a statute what it

says there,” Daw, 386 N.C. at 478, and fails to uphold “our duty to give effect to the

words actually used in a statute and not to delete words used or to insert words not

used,” Lunsford v. Mills, 367 N.C. 618, 623 (2014).

Rather than judicially rewriting either of these statutes, I would read the

statute of repose’s plain language as creating an imperative and unequivocal

boundary to all actions “commenced more than four years from the last act of the

defendant giving rise to the cause of action.” N.C.G.S. § 1-15(c). Because the savings

provision permissively allows “a new action” to be “commenced,” any such action is

subject to the statute of repose.

This reading aligns with our precedent distinguishing the statute of limitation

and the statute of repose because “[w]hile equitable doctrines may toll statutes of

16

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

limitation, they do not toll substantive rights created by statutes of repose.” Monson,

133 N.C. App. at 240.8 Imagine a plaintiff initially files on the last day of the three-

year statute of limitation for this type of claim, takes a voluntary dismissal two years

later before the case is resolved, then refiles on the last day of the one-year extension.

It will now have been two years past the statute of repose. The majority’s

interpretation would allow for the case to proceed and “subject a defendant to

potential open-ended liability for an indefinite period of time, defeating the very

purpose of statutes of repose[.]” Id. (emphasis added); see also Christie, 367 N.C. at

539 (“[S]tatutes of repose give potential defendants a degree of certainty and control

over their legal exposure . . . . Statutes of repose function as unyielding and absolute

barriers to litigation.” (cleaned up)).

Reading the statute of repose to bar all actions commenced four years from the

defendant’s last act, and the savings provision to apply to the “commence[ment]” of a

“new action based on the same claim,” gives proper effect to the statutes’ plain

8 The majority’s conclusion that the savings provision “must first be applied to determine the

appropriate commencement date, then using the appropriate commencement date, we can consider

whether a claim is time barred by either the statute of limitations or the statue of repose[,]” again

confuses the statute of limitation with the statute of repose. See Black, 312 N.C. at 633 (describing

statutes of repose as substantive, condition precedents, that “prevents a plaintiff's right of action

even before his cause of action may accrue . . . .”). Cf. Christie, 367 N.C. at 538 (describing statutes

of limitations as “affirmative defenses,” “subject to equitable defenses,” and “are procedural, not

substantive” legislative tools to “determine not whether an injury has occurred, but whether a party

can obtain a remedy for that injury.”). The majority’s conclusion evades the plain language of the

savings provision, which allows a party to “commence[ ]” a “new action,” N.C.G.S. § 1A-1, Rule

41(a)(1), and the plain language of the statue of repose, which forbids the commencement of any new

action after the repose period has expired, id. § 1-15(c).

17

PUMA BIOTECH., INC. V. HENDRICK GARDNER

Freeman, J., concurring in part and dissenting in part.

language. Bending the statute of repose to yield to the Rule 41(a)(1) savings provision

requires this Court to erase the General Assembly’s mandate that “in no event shall

an action be commenced more than four years from the last act of the defendant

giving rise to the cause of action,” N.C.G.S. § 1-15(c) (emphasis added), and erodes

our clear precedent that the statute of repose is “an unyielding and absolute barrier.”

Hargett, 337 N.C. at 655 (cleaned up). If the legislature wishes to subject the statute

of repose to the savings provision, it may amend either provision to do so—this Court

may not.

Because plaintiff’s second complaint alleged the last date of negligence by

defendants to be no later than 22 April 2019, I concur in the majority’s determination

that “the three-year statute of limitations ended on 22 April 2022, and the four-year

statute of repose ended on 22 April 2023.” However, as the savings provision does

not provide an exception to the statute of repose’s unyielding and absolute barrier,

plaintiff’s second complaint was wholly barred by the statute of repose.

IV. Conclusion

When a statute’s “words have definite and precise meaning” our appellate

courts “may not interpret what has no need of interpretation.” Daw, 386 N.C. at 476

(cleaned up). Because the savings provision is not an exception to the statute of

repose, I would affirm the trial court’s order granting defendants’ motion to dismiss.

18