IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-301

No. COA21-472

Filed 3 May 2022

New Hanover County, No. 18 CVS 4345

FARRON JEROME UPCHURCH, Plaintiff,

v.

HARP BUILDERS, INC. and VALENTINE JOSEPH CLEARY, Defendants.

Appeal by Defendant from order entered 22 April 2021 by Judge Phyllis 

Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 9 

February 2022.

Ennis, Baynard, Morton, Medlin & Brown, PA, by Maynard M. Brown, for 

Plaintiff-Appellee.

Crossley, McIntosh, Collier, Hanley & Edes, PLLC, by Andrew J. Hanley, for 

Defendants-Appellants.

JACKSON, Judge.

¶ 1 Defendant Valentine Joseph Cleary (“Defendant”) appeals from an order 

granting Plaintiff Farron Jerome Upchurch’s (“Plaintiff”) motion for summary 

judgment on Defendant’s counterclaim and dismissing his counterclaim with 

prejudice. After careful review, we affirm.

I. Background

¶ 2 This case involves a motor vehicle accident that occurred between the parties 
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on 19 December 2015 in New Hanover County off Interstate 40. On 19 December 

2018, Plaintiff filed a complaint alleging that Defendant was at fault and seeking 

damages for personal injuries sustained in the accident. On 20 December 2018, 

Defendant filed an answer and counterclaim alleging that Plaintiff was at fault and 

seeking damages for personal injuries sustained in the accident. On 13 September 

2019, Defendant filed an amended answer and counterclaims. On 27 February 2020, 

Plaintiff answered, asserting the defenses of contributory negligence and gross 

negligence. On 7 December 2020, Plaintiff filed an amended answer to Defendant’s 

amended counterclaim, moving to dismiss the counterclaim pursuant to N.C. Gen. 

Stat. § 1-52(16) on the ground it was barred by the three-year statute of limitations.

¶ 3 On 18 December 2020, Plaintiff moved for judgment on the pleadings, or in the 

alternative, for summary judgment on the ground that Defendant’s counterclaim was 

filed after the statute of limitations had run. On 5 January 2021, the Honorable R. 

Kent Harrell ruled on Plaintiff’s motion, denying judgment on the pleadings and 

finding that Plaintiff was required to seek leave of court to file the amended reply 

that asserted the statute of limitations defense. On 19 January 2021, Plaintiff moved 

to amend his answer. This motion was allowed on 23 February 2021 by the Honorable 

Phyllis Gorham. On 26 February 2021, Plaintiff filed an amended answer to 

Defendant’s counterclaim. On 4 March 2021, Plaintiff filed another motion for

judgment on the pleadings, or in the alternative, for summary judgment on the 
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ground that the counterclaim was filed after the statute of limitations had run. On 

22 March 2021, Defendant filed a second amended answer. 

¶ 4 On 22 April 2021, the Honorable Phyllis Gorham entered an order granting 

Plaintiff’s motion for summary judgment on Defendant’s counterclaim and dismissed 

Defendant’s counterclaim with prejudice. 

On 29 April 2021, Defendant timely filed notice of appeal. 

II. Analysis

¶ 5 The sole issue on appeal is whether the trial court erred in granting Plaintiff’s 

motion for summary judgment on the ground that Defendant’s counterclaim was 

barred by the three-year statute of limitations provided in N.C. Gen. Stat. § 1-52(16).

¶ 6 We review a trial court’s grant of summary judgment de novo. Summey v. 

Barker, 357 N.C. 492, 497, 586 S.E.2d 247, 249 (2003).

¶ 7 North Carolina General Statute § 1-52(16) establishes a three-year statute of 

limitations “for personal injury or physical damage to claimant’s property[.]” N.C. 

Gen. Stat. § 1-52(16) (2021). The cause of action in such cases begins to accrue when 

“bodily harm to the claimant or physical damages to his property becomes apparent 

or ought reasonably to have become apparent to the claimant, whichever event first 

occurs.” Id. The parties seemingly agree that the cause of action in the instant case 

began to accrue on the day of the accident, 19 December 2015, and claims must have 

been filed by 19 December 2018 to be within the three-year statute of limitations 
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delineated by N.C. Gen. Stat. § 1-52(16).

¶ 8 Defendant argues that his counterclaim filed on 20 December 2018 should be 

deemed to relate back to the filing of the original complaint by Plaintiff on 19 

December 2018, and thus should be considered timely filed within the three-year 

statute of limitations. In doing so, Defendant contends that we should decline to 

follow our Court’s holding in PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 

S.E.2d 148, dis. rev. denied, 358 N.C. 733 (2004).

¶ 9 In PharmaResearch, a defendant filed counterclaims in a shareholders 

agreement dispute and argued the filing should relate back to the date the plaintiff 

filed its original complaint. 163 N.C. App. at 426, 594 S.E.2d at 153. The Court 

concluded that “counterclaims do not ‘relate back’ to the date the plaintiff’s action 

was filed[,]” and that the counterclaims were barred by the applicable statute of 

limitations. Id. at 427, 594 S.E.2d at 153. The Court followed our Supreme Court’s 

intervening analysis in Burcl v. North Carolina Baptist Hospital, Inc., 306 N.C. 214, 

293 S.E.2d 85 (1982), “that if application of the [North Carolina] Rules of Civil 

Procedure dictates a result different from that arrived at in a pre-rules case, the Rules 

should be applied[.]” 163 N.C. App. at 426, 594 S.E.2d at 153. Therefore, the Court 

concluded “that the pertinent Rule of Civil Procedure, Rule 13, does not support 

defendant’s assertion that his counterclaim should be deemed to ‘relate back’ to the 

date that plaintiff filed its original action.” Id. at 427, 594 S.E.2d at 153. The Court 
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specifically declined to follow our Supreme Court’s much earlier decision Brumble v. 

Brown, 71 N.C. 513 (1874), which held the opposite—that a counterclaim “refers to 

the commencement of the action . . . [a]nd if not barred by the statute at that time, it 

does not become so afterwards during the pending of the action.” 71 N.C. at 516.

¶ 10 Defendant argues that we should decline to follow PharmaResearch for several

reasons, most significantly because the Court in PharmaResearch erroneously 

overruled a previous decision of our Court, In re Gardner 20 N.C. App. 610, 202 S.E.2d 

318 (1974), in violation of In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989). 

¶ 11 The Court in In re Gardner adopted the rule in Brumble and held that the 

counterclaim at issue related back and was therefore not barred by the applicable 

statute of limitations. 20 N.C. App. at 618, 202 S.E.2d at 324. The Court did so 

despite the new, amended Rules of Civil Procedure becoming effective on 1 January 

1970, prior to the filing of the original complaint on 16 June 1971. Id. at 617-18, 202 

S.E.2d at 323-24. While we acknowledge the conflicting holdings, we are unable to 

overrule PharmaResearch in favor of In re Gardner. “Where a panel of the Court of 

Appeals has decided the same issue, albeit in a different case, a subsequent panel of 

the same court is bound by that precedent, unless it has been overturned by a higher 

court.” In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.

Thus, In re Civil Penalty stands for the proposition that, 

where a panel of this Court has decided a legal issue, future 

panels are bound to follow that precedent. This is so even 
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if the previous panel’s decision involved narrowing or 

distinguishing an earlier controlling precedent—even one 

from the Supreme Court—as was the case in In re Civil 

Penalty. Importantly, In re Civil Penalty does not 

authorize panels to overrule existing precedent on the basis 

that it is inconsistent with earlier decisions of this Court.

State v. Gonzalez, 263 N.C. App. 527, 531, 823 S.E.2d 886, 888-89 (2019). 

¶ 12 The Supreme Court “has authorized us to disregard our own precedent in 

certain rare situations[,]” such as “when two lines of irreconcilable precedent develop 

independently—meaning the cases never acknowledge each other or their conflict[.]” 

Id. at 531, 823 S.E.2d at 889. This exception does not apply to the case at bar. The 

Court in PharmaResearch specifically acknowledged In re Gardner and determined 

its holding did not apply as it “was super[s]eded by the adoption of our Rules of Civil 

Procedure.” PharmaResearch, 163 N.C. App. at 427 n.1, 594 S.E.2d at 153 n.1.

¶ 13 Accordingly, we hold that the rule delineated in PharmaResearch—that

counterclaims do not relate back to the date the plaintiff’s action was filed—applies 

to this case. Therefore, Defendant’s counterclaim filed on 20 December 2018 was 

barred by the three-year statute of limitations provided in N.C. Gen. Stat. § 1-52(16).

III. Conclusion

¶ 14 For the foregoing reasons, we affirm the trial court’s order granting Plaintiff’s 

motion for summary judgment on Defendant’s counterclaim and dismissing the 

counterclaim with prejudice.
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AFFIRMED.

Judge DIETZ concurs.

Judge MURPHY concurs in result only.