Civil Procedure--voluntary dismissal after resting case_order of
trial court required
The trial court did not err in an action arising out of an
automobile accident by entering summary judgment in favor of
defendant under N.C.G.S. § 1A-1, Rule 56(c) and by dismissing
plaintiffs' civil negligence claim based on the original action
being dismissed with prejudice, because: (1) plaintiffs did not
specify whether they were moving for dismissal under N.C.G.S. §
1A-1, Rule 41(a)(1) or Rule 41(a)(2), and plaintiffs could only
obtain a voluntary dismissal with leave to refile under Rule
41(a)(2) since they had already rested their case; and (2) even
assuming arguendo that plaintiffs sought a voluntary dismissal
under Rule 41(a)(2), the record failed to establish that the
trial court ever granted such a motion.
Franklin Smith for plaintiff-appellants.
Willardson & Lipscomb, LLP, by Sigsbee Miller for defendant-
appellee.
BIGGS, Judge.
Plaintiffs appeal from an order of summary judgment entered 25
September 2000, dismissing their civil negligence action against
defendant. For the reasons that follow, we affirm.
Plaintiff, Pauline Pardue (Mrs. Pardue), and Sandra Darnell
(defendant) were involved in a motor vehicle collision on 25 June
1996. Mrs. Pardue and her husband Lytle (plaintiffs) filed a civil
negligence action on 5 March 1999, claiming that defendant's
negligence had caused the accident, and seeking damages for Mrs.Pardue's injuries. The case came on for trial during the 15 May
2000 session of Superior Court. On 17 May 2000, at the close of
plaintiffs' presentation of witnesses, plaintiffs offered into
evidence a deposition and videotape, stating: “And with that we'll
rest.” The trial court then dismissed the jury, and entertained
several defense motions. While counsel were presenting their
arguments on one of defendant's motions, the trial court called
them to the bench. Immediately following an unrecorded bench
conference, plaintiffs' counsel announced that they would “move at
this time to take a voluntary dismissal. We will refile it again.”
Shortly thereafter, the proceedings were ended. On 17 May 2000,
plaintiffs signed a written “Notice of Voluntary Dismissal Without
Prejudice” and, on 24 May 2000, plaintiffs filed a new action
against defendant, again seeking damages and costs arising from the
25 June 1996 collision. In response, defendant filed a motion for
summary judgment. Defendant argued that the dismissal that
plaintiffs had taken during the earlier trial was a dismissal with
prejudice, barring plaintiffs from refiling their case. On 25
September 2000, Judge Judson D. DeRamus, Jr., granted defendant's
motion for summary judgment, and dismissed plaintiffs' suit against
defendant. Plaintiffs appeal from this order.
Plaintiffs, in their sole assignment of error, contend that
the trial court committed reversible error in granting defendant's
motion for summary judgment.
N.C.R. Civ. P. 56(c) provides that summary judgment shall be
granted "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law.” Therefore, on
appeal:
[i]t is well established that the standard of
review of the grant of a motion for summary
judgment requires a two-part analysis of
whether, '(1) the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, show that
there is no genuine issue as to any material
fact; and (2) the moving party is entitled to
judgment as a matter of law.' (citations
omitted).
Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630
(2000), aff'd, 353 N.C. 445, 545 S.E.2d 210 (2001). Furthermore,
"the evidence presented by the parties must be viewed in the light
most favorable to the non-movant." Bruce-Terminix Co. v. Zurich
Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
In the instant case, defendant's summary judgment motion was
based on her argument that plaintiffs' original action had been
dismissed with prejudice, precluding plaintiffs, as a matter of
law, from refiling their case. We first examine whether there are
genuine issues of material fact related to the dismissal of the
original action. The record incorporates the pages of the
transcript of the original trial that set forth how the motion to
dismiss was presented by plaintiffs, as well as the trial court's
response. Neither party has challenged the accuracy of the
transcript; in fact, by its incorporation in the record on appeal
to which the parties have agreed, we conclude that there is no
dispute that it is the official record of the proceeding. Nor have
the parties disputed the validity or accuracy of other relevantdocuments in the record, most importantly the Notice of Dismissal
filed by the plaintiff in the original action. While the parties
may disagree on whether these facts constitute a dismissal with
leave to refile or a dismissal with prejudice, the facts themselves
are not in dispute. Consequently, we conclude that “there is no
genuine issue as to any material fact” surrounding the dismissal of
the original action.
We turn next to our determination of whether defendant “is
entitled to a judgment as a matter of law." The dismissal of
civil actions is governed by N.C.G.S. § 1A-1, Rule 41, which
provides in part as follows:
Rule 41. Dismissal of actions:
(a) Voluntary dismissal; effect thereof.
(1) By Plaintiff[.]. . . [A]n action or any
claim therein may be dismissed by the
plaintiff without order of court (i) by filing
a notice of dismissal at any time before the
plaintiff rests his case[.]. . .
(2) By Order of Judge.--Except as provided in
subsection (1) of this section, an action or
any claim therein shall not be dismissed at
the plaintiff's instance save upon order of
the judge[.] . . .
Thus, under Rule 41(a)(1), “a plaintiff is vested with the
authority to dismiss any of its claims prior to close of its case-
in-chief.” Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d
78, 83 (1995). However, after resting his case, a plaintiff
forfeits the absolute right to take a dismissal, Cutts v. Casey,
278 N.C. 390, 180 S.E.2d 297 (1971), and, in order to obtain a
voluntary dismissal, the plaintiff must apply to the court under
Rule 41(a)(2).
The operation of Rule 41 is “intended to prevent delays andharassment by plaintiff securing numerous dismissal
s without
prejudice.” City of Raleigh v. College Campus Apartments, Inc., 94
N.C. App. 280, 282, 380 S.E.2d 163, 165 (1989), aff'd, 326 N.C.
360, 388 S.E.2d 768 (1990). The rule allows a plaintiff to dismiss
and then refile his case only once, and only before resting his
case. The crucial difference between Rule 41(a)(1) and Rule
41(a)(2) lies in the trial court's supervision and regulation of
dismissals entered pursuant to Rule 41(a)(2). Troy v. Tucker, 126
N.C. App. 213, 216, 484 S.E.2d 98, 100 (1997) (after plaintiff
rests, “it is for the trial court to decide” whether voluntary
dismissal with leave to refile is permissible); Moore v. Pate, 112
N.C. App. 833, 836, 437 S.E.2d 1, 2 (1993), disc. review denied,
336 N.C. 73, 445 S.E.2d 35 (1994) (entry of a proper voluntary
dismissal pursuant to Rule 41(a)(2) “requires an order of the trial
court and a finding that justice so requires”).
In the instant case, the record demonstrates that after
concluding their presentation of witnesses, plaintiffs stated: “And
with that we'll rest.” We conclude that plaintiffs rested their
case at that point. The jury was then dismissed, and the parties
argued several motions before the trial court. While counsel were
arguing an evidentiary motion, the court instructed counsel to
approach the bench, and a discussion took place off the record. At
the end of this unrecorded bench conference, the following
occurred:
[PLAINTIFF'S COUNSEL]; Your Honor, pursuant to
Rule 41 of the North Carolina Rules of Civil
Procedure we would move at this time to take a
voluntary dismissal. We will refile it again. THE COURT: You're doing it with leave?
[PLAINTIFF'S COUNSEL]: With leave to refile
it.
THE COURT: All right. Nice to have met you.
Nice to see you folks. Good luck to you.
Nice to have met you Mr. Smith.
At that point the proceedings ended. Plaintiffs did not specify
whether they were moving for dismissal under Rule 41(a)(1) or Rule
41(a)(2). However, because plaintiffs had already rested, they
could only obtain a voluntary dismissal with leave to refile under
Rule 41(a)(2).
The parties have analyzed in great detail the language in the
exchange between plaintiffs and the trial court, in support of
their arguments regarding whether the trial court effectively
“granted” plaintiffs' “motion,” notwithstanding the absence of a
written order. Plaintiffs note their use of the word “move” for a
dismissal, and point to the trial court's apparent agreement with
the plaintiffs' plan to refile. Defendants argue that plaintiffs
were clearly announcing their intention to take a unilateral
action, and note the trial court's question - “You're doing it with
leave?” - as evidence of this. However, we do not find it
necessary to examine the nuances of the quoted exchange, for it is
undisputed that (1) the trial court did not enter, expressly or in
writing, an order granting a voluntary dismissal with leave to
refile; (2) plaintiffs never explicitly applied to the trial court
for such an order; and (3) plaintiffs themselves entered a “Notice
of Voluntary Dismissal Without Prejudice” shortly after the first
trial. We find that, even assuming arguendo that plaintiffs sought
a voluntary dismissal under Rule 41(a)(2), this record fails toestablish that the trial court ever granted such motion. Rather,
the record shows that plaintiffs took a voluntary dismissal after
resting.
The facts of the case sub judice are similar to those in Moore
v. Pate, 112 N.C. App. 833, 437 S.E.2d 1 (1993), disc. review
denied, 336 N.C. 73, 445 S.E.2d 35 (1994). In Moore, also an auto
negligence suit, plaintiff took a “voluntary dismissal” after
resting his case. The trial court dismissed the jury, and
explained that “[u]nder civil rules and regulations, the party who
brings a lawsuit is entitled to do just that if they wish to at any
time and have within one year of that date to decide whether or not
to refile the lawsuit.” As in the case sub judice, the defendant
did not object during the proceedings in court, but moved to
dismiss when plaintiff attempted to refile the suit. This Court
held that:
The uncontroverted record reveals that
plaintiff took his dismissal after he had
rested his case, thus losing the ability to
take a dismissal under Rule 41(a)(1)(i). . . .
[S]ince plaintiff was unable to obtain a
voluntary dismissal under Rule 41(a)(1), the
only other means by which plaintiff could have
taken his dismissal was under Rule 41(a)(2)
which requires an order of the trial court and
a finding that justice so requires. . . .
Again there is no evidence that plaintiff took
this avenue. Thus, plaintiff is left in the
unenviable position of arguing that he should
be allowed to take [a voluntary] dismissal
without prejudice, when he has failed to
follow any of the statutory options.
It is clear from our review of the record
that plaintiff was seeking a dismissal under
Rule 41(a)(1)(i). . . . However, given the
late stage in the trial at which plaintiff
sought his dismissal, a dismissal under Rule
41(a)(1)(i) was not available to him,regardless of the trial court's erroneous
statements to the contrary.
Moore, 112 N.C. App. at 836, 437 S.E.2d at 2. We find the
reasoning in Moore instructive in the present case. Plaintiffs in
the case sub judice lacked the authority to file a voluntary
dismissal under Rule 41(a)(1) after resting. Additionally,
plaintiffs failed to apply to the trial court for a voluntary
dismissal under Rule 41(a)(2). We conclude that the dismissal
taken by plaintiffs was a voluntary dismissal with prejudice,
barring them from refiling suit against defendant. We further
conclude, therefore, that defendant was “entitled to a judgment as
a matter of law." Accordingly, we affirm the trial court's grant
of summary judgment to defendant.
Affirmed.
Judges MARTIN and MCCULLOUGH concur.
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