Volume 72 — North Carolina Court of Appeals Reports

1. Rules of Civil Procedure 4 — first proper service of summons more than five days from filing of complaint — no prior motion to dismiss — action revived Where the original complaint was filed on 1 April 1983, there was no service of a properly issued summons until a second summons was issued and served on 2 May 1983, and the defendant did not move to dismiss prior to being served with the second summons, the second summons revived and commenced a new action. G.S. <cross_reference>1A-1</cross_reference>, Rule 4(a) (1983). 2. Limitation of Actions 12.1 — refiling diversity complaint — attorney's malpractice — applicable statute of limitations unclear — Rule 12(b)(6) dismissal improper Plaintiffs complaint stated a potential cause of action and should not have been dismissed under Rule 12(b)(6) where he alleged that defendant attorney had negligently advised him that he could refile his malpractice complaint against a Florida doctor within one year of a voluntary dismissal in a North Carolina Federal Court. A federal court sitting in a diversity case would apply North Carolina choice of law rules, but it could not be determined from the pleadings whether the three-year statute of limitation of G.S. <cross_reference>1-15</cross_reference>(c) (1983) or the two-year Florida statute under G.S. <cross_reference>1-21</cross_reference>, the North Carolina "borrowing statute," would apply. 3. Attorneys at Law 5.1; Rules of Civil Procedure 8.1, 41.2 — Rule 41.2(b) dismissal for Rule 8(a)(2) violation — improper The trial court erred by dismissing plaintiffs attorney malpractice complaint under Rule 41(b) where the pro se plaintiff did not consistently and doggedly ignore the court's order by refusing to delete ad damnum clauses which violated Rule 8(a)(2) and plaintiff was not allowed an opportunity to cure his violation.

Divorce and Alimony 21.9 — equitable distribution precluded by separation agreement A 1976 separation agreement settled the property rights of the parties and barred plaintiffs claim for equitable distribution where the agreement contained language in which each party relinquished any interest in property owned by the other, notwithstanding the agreement did not enumerate in detail the property owned by defendant husband.

1. Criminal Law 66 — identity of defendant as perpetrator of crime — sufficiency of evidence There was no merit to defendant's contention that the arresting officer who testified for the State failed to identify defendant as the perpetrator of the alleged offenses where the officer testified that he "first saw the automobile of the defendant Jacob Leonard Watts when he was travelling on 14th Avenue, N.W."; he continued to testify that he arrested "defendant" for driving under the influence of alcohol and also that he found a pistol in "defendant's" glove box; and this was sufficient identification of defendant for the jury to find that he was the perpetrator of the alleged offenses. 2. Weapons and Firearms 2 — possession of firearm by felon — previous convictions — no contest plea If a defendant enters a plea, including a plea of no contest, so that a felony judgment or imprisonment for more than two years may be imposed, then it constitutes a conviction under G.S. <cross_reference>14-415.1</cross_reference>, the statute making it a felony for a person convicted of certain crimes to have in his possession a handgun. 3. Searches and Seizures 9 — arrest for driving under influence — search of car — admissibility of pistol There was no merit to defendant's contention that the trial court erred in admitting evidence of a pistol found in the glove compartment<page_number>Page 662</page_number> of his car because the officer discovered it during an illegal search, since defendant was arrested for driving under the influence of alcohol and the officer's search of the vehicle, including the glove compartment, at that time was legal. 4. Automobiles 126.3 — driving under the influence — blood test — qualified person In a prosecution of defendant for driving while under the influence of alcohol, testimony that defendant's blood was drawn by a blood technician at Frye Memorial Hospital was sufficient evidence that the sample was drawn by a qualified person as required by G.S. <cross_reference>20-139.1</cross_reference>(c).