Appeal by plaintiff from judgment entered 12 December 2000 by
Judge R. G. Chaney in Durham County District Court. Heard in the
Court of Appeals 9 January 2002.
Curtis C. Coleman, III, for plaintiffs.
Haywood, Denny & Miller, L.L.P., by Robert E. Levin, for
defendant.
BIGGS, Judge.
Clarann Manning Anderson (plaintiff) appeals from an order
dismissing her action for recovery of medical expenses incurred by
her minor children arising out of an automobile accident. Recil
Thaxton Smith (defendant) filed a motion to dismiss which the trial
court granted. For the reasons herein, we reverse the trial court.
The evidence tended to show the following: Plaintiff and
defendant were in an automobile accident on 16 February 1995, with
each driving their respective vehicles. Plaintiff and her minor
children, who were passengers in her vehicle, sustained personalinjuries which required medical care.
On 5 December 1997, plaintiff filed an action against
defendant, seeking compensation for personal injuries and medical
expenses. In this action (filed as 97 CVS 4986), plaintiff filed
a separate claim seeking reimbursement for her children's medical
expenses. The children's guardian ad litem (GAL), also sought
compensation for their personal injuries; however, she did not seek
reimbursement for their medical expenses.
On 16 August 1999, before the jury trial on plaintiff's claim
for personal injuries began, plaintiff took a voluntary dismissal,
without prejudice, of her claim for reimbursement of her children's
medical expenses pursuant to Rule 41(a) of the North Carolina Rules
of Civil Procedure. In addition, the GAL voluntarily dismissed the
children's personal injury claims against defendant. The jury
trial on plaintiff's remaining claims against defendant was
thereafter conducted, and on 18 August 1999, the jury returned a
verdict awarding her $10,000.00 for personal injuries.
On 12 June 2000, the GAL re-filed the children's personal
injury action against defendant, filed as 00 CVS 2322. Plaintiff's
claim as mother seeking reimbursement for the children's medical
expenses was also included in this action.
Defendant filed a motion to dismiss plaintiff's claim for
reimbursement of her children's medical expenses pursuant to Rule
8(c) of the North Carolina Rules of Civil Procedure, on the ground
that this claim was barred by the earlier trial. The trial court
granted defendant's motion to dismiss. The trial court's order,however, did not affect the minor children's claims for personal
injuries, which are now pending in a separate action. From this
order, plaintiff gave notice of appeal on 8 January 2001.
Plaintiff, in her sole assignment of error, contends that the
trial court erred in granting defendant's motion to dismiss
pursuant to Rule 8(c) of the North Carolina Rules of Civil
Procedure. Specifically, plaintiff argues that she is not barred
under the doctrine of
res judicata from bringing a claim for
reimbursement for the children's medical expenses, although her
claim for personal injury arising out of the same accident has been
tried. We agree.
As a general rule, the doctrine of
res judicata provides that:
A final judgment rendered by a court of
competent jurisdiction, on the merits, is
conclusive as to the rights of the parties and
their privies, and as to them constitutes an
absolute bar to a subsequent action involving
the same claim, demand, and cause of action.
Gaither Corporation v. Skinner, 241 N.C. 532, 535, 85 S.E.2d 909,
911 (1955).
While it is true that under the doctrine of
res judicata “a
judgment is conclusive as to all issues raised by the pleadings,”
the judgment is not conclusive as to issues not raised by the
pleadings that serve as the basis for the judgment.
Bockweg v.
Anderson, 333 N.C. 486, 492, 428 S.E.2d 157, 161-62 (1993)
(citation omitted). In
Hicks v. Koutro, 249 N.C. 61, 105 S.E.2d
196 (1958), our Supreme Court held that where a party raises issues
in the pleadings, it cannot, even with the consent of the opposingparty, try those issues in a piecemeal fashion. However, if
certain issues are not raised by the pleadings, parties may try
those issues separately.
Bockweg, 333 N.C. at 492, 428 S.E.2d at
162 (citations omitted)
. Further, the doctrine of
res judicata
extends, not only to matters actually determined, but also to other
matters which in the exercise of due diligence could have been
presented for determination in the prior action.
Gaither, 241 N.C.
at 535-36, 85 S.E.2d at 911 (citations omitted).
Defendant maintains that plaintiff's claim for reimbursement
of the medical expenses of her children should have been presented
in plaintiff's earlier action for her own personal injury, and,
thus, is now barred under the doctrine of
res judicata.
In North Carolina, two independent causes of action arise when
unemancipated minors are injured through the negligence of another:
(1) a claim on behalf of the child for her losses caused by the
injury, and (2) a claim by the parent for loss of services during
the child's minority and for medical expenses to treat the injury.
Brown v. Lyons, 93 N.C. App. 453, 458, 378 S.E.2d 243, 246 (1989)
(citations omitted). The parents' right of action is based upon
their duty to care for and maintain their children.
Flippin v.
Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980),
reh'g denied, 301
N.C. 727, 274 S.E.2d 228 (1981) (citation omitted).
The common law rule against claim-splitting
is based on the
general rule that all damages incurred as the result of a
single
wrong must be recovered in one lawsuit.
Bockweg, 333 N.C. at 492,
428 S.E.2d at 161 (1993) (citation omitted). However, where aplaintiff has suffered multiple wrongs at the hands of a defendant,
a plaintiff may normally bring successive actions, or, at his
option, may join several claims together in one lawsuit.
Id.;
N.C.R. Civ. P. 18(a) (1999).
In the case
sub judice, plaintiff initially brought an action
seeking recovery for (1) personal injuries, pain and suffering, and
medical expenses; and (2) medical expenses incurred by her minor
children. Before this action went to trial, plaintiff filed notice
of voluntary dismissal without prejudice of the claim regarding the
medical expenses of her children. The dismissed claim, which is
now the subject of this action, was no longer a part of the action
that was adjudicated in plaintiff's favor.
It is well settled that “[a] Rule 41 (a) dismissal strips the
trial court of authority to enter further orders in the case . . .
.”
Walker Frames v. Shively, 123 N.C. App. 643, 646, 473 S.E.2d
776, 778 (1996). “The effect of a judgment of voluntary
[dismissal] is to leave the plaintiff exactly where he [or she] was
before the action was commenced.”
Brisson v. Santoriello, M.D.,
P.A., 351 N.C. 589, 593, 528 S.E.2d 568, 570 (2000) (citation
omitted). After a plaintiff takes a Rule 41(a) dismissal, “[t]here
is nothing the defendant can do to fan the ashes of that action
into life[,] and the court has no role to play.”
Id. (citation
omitted). Plaintiff, however, is not precluded from later refiling
her claim so long as it is within the one-year time limit
established by Rule 41(a).
Georgia-Pacific Corp. v. Bondurant, 81
N.C. App. 362, 344 S.E.2d 302 (1986)(a plaintiff has one year torefile a claim that he or she has voluntarily dismissed). Once
refiled, the case must be considered on its merits without
reference to the disposition of the prior action.
See generally,
Thompkins v. Log Systems, Inc., 96 N.C. App. 333, 385 S.E.2d 545
(1989),
disc. review denied, 326 N.C. 366, 389 S.E.2d 819 (1990).
We conclude, therefore, that in the case
sub judice, the
judgment in the first action was not a final judgment on the merits
of the dismissed claim, and thus does not bar the current action.
The only issue presented by the pleadings in the prior action was
plaintiff's claim based on her personal injuries, pain and
suffering, and personal medical expenses. Moreover, the
plaintiff's claim for her own injury is separate and distinct from
her claim for reimbursement for injury to her children.
Accordingly, we hold that plaintiff's present action is not
barred by the final judgment in the prior action because the claim
now presented was neither part of the initial action, nor was
plaintiff required to raise such claim. Thus, the doctrine of
res
judicata is inapplicable. We, therefore, reverse the trial court's
order granting defendant's motion to dismiss.
Reversed.
Judges WALKER and MCGEE concur.
Report per Rule 30(e).
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