Appeal by plaintiff from order entered 25 March 2003 by Judge
Quentin T. Sumner in Nash County Superior Court. Heard in the
Court of Appeals 5 February 2004.
Barry Nakell for plaintiff-appellant.
MEYER & MEUSER, P.A., by Linda K. Wood, Deborah N. Meyer, and
John B. Meuser, for defendant-appellee.
TIMMONS-GOODSON, Judge.
Ludovicus Keyzer, a/k/a Ludo Keyzer, (“plaintiff”) appeals the
trial court's order dismissing his action with prejudice. For the
reasons detailed below, we reverse the decision of the trial court.
The pertinent facts and procedure of the instant appeal are as
follows: On 22 February 1999, plaintiff filed a complaint against
Amerlink, Ltd. (“defendant”), alleging breach of contract, breach
of express and implied warranties, fraud, and unfair and deceptive
trade practices arising out of the sale of a log home package. The
action proceeded to trial, and on 10 September 2001, after
plaintiff had rested his case and while defendant was presenting
its defense, the parties reached a settlement which was reduced towriting that same day (“the Agreement”). The hand-written
Agreement provided that:
Upon execution of this settlement agreement
the court will declare a mistrial in this
action; and thereafter, on or before Jan. 2,
2002, the parties will file a stipulation of
dismissal without prejudice under Rule 41(a).
The trial court thereafter declared a mistrial and dismissed the
jury.
On 12 September 2001, the parties executed a typed supplement
to the Agreement, which did not contain the language requiring the
parties file a stipulation of dismissal. However, on 10 January
2002, the parties entered into a supplement to the “Agreement Dated
September 12, 2001,” which provided that the parties would file a
stipulation of dismissal pursuant to Rule 41(a)(1)(ii) on or before
15 January 2002. On 15 January 2002, the parties filed a
Stipulation of Dismissal.
On 4 December 2002, plaintiff filed a breach of contract
action, claiming defendant failed to make a settlement payment
required by the Agreement. Plaintiff also refiled his previous
action, based upon the same claims as those made in February 1999.
That same day, defendant filed a Motion to Stay, alleging breach of
contract and seeking release from further performance under the
Agreement because of plaintiff's alleged violation of the
confidentiality clause contained in the Agreement. On 27 January
2003, defendant filed a “Motion to Convert Motion to Stay to Motion
to Dismiss or in the Alternative to Stay.”
On 25 March 2003, the trial court granted defendant's motion
to dismiss, concluding as a matter of law that: 1. At the time the Court dismissed the jury .
. ., the parties did not seek leave of court
to file, nor did they in fact file a Motion
for Dismissal under Rule 41(a)[(1)](ii).
2. The one year period for commencing an
action after taking a voluntary dismissal
under Rule 41(a) began to run on or about
September 10, 2001 when the Court . . .
dismissed the jury.
3. A party to an action cannot establish a
longer period of time for commencing an action
by delaying the filing of a Rule 41(a)
dismissal. Nor can the parties contract to
extend the period.
4. [Plaintiff's] failure to commence this
action within the one year of the date upon
which the Court dismissed the jury . . .
warrants a dismissal of this action.
5. The statute of limitations has expired on
[plaintiff's] underlying claims and such
claims are absolutely barred.
6. Based upon information presented to this
Court, an [sic] in accordance with the
provisions of Rule 12(h)(3) of the North
Carolina Rules of Civil Procedure, the Court
lacks jurisdiction of the subject matter of
this action.
The trial court ordered plaintiff's action be dismissed with
prejudice. It is from this order that plaintiff appeals.
We note as an initial matter that plaintiff's brief contains
arguments supporting only six of his original eleven assignments of
error. Pursuant to North Carolina Rule of Appellate Procedure
28(b)(6) (2004), the five omitted assignments of error are deemed
abandoned. Therefore, we limit our present review to those
assignments of error properly preserved by plaintiff for appeal.
The dispositive issue on appeal is whether the statute of
limitations barred plaintiff's claims. Plaintiff argues that theone-year period in which he may refile his claims after voluntary
dismissal began on 15 January 2002, the date the parties filed the
Stipulation of Dismissal. We agree.
According to N.C.R. Civ. Pro. 41(a)(1), any action may be
dismissed by a plaintiff without order of the trial court (i) by
filing a notice of dismissal at any time before the plaintiff rests
his or her case, or (ii) by filing a stipulation of dismissal
signed by all parties to the action. N.C. Gen. Stat. § 1A-1, Rule
41(a)(1) (2003). A new action based on a voluntarily dismissed
claim may be commenced within one year after the dismissal, unless
the stipulation of dismissal signed by the parties “shall specify
a shorter time.”
Id. In the instant case, the second trial court
concluded that the one-year period for refiling plaintiff's action
began to run on 10 September 2001, the date the first trial court
dismissed the jury after receiving oral notice of dismissal from
the parties. The second trial court determined that the parties
could not establish a longer period of time for refiling the action
by delaying the entry of their Rule 41(a) stipulation of dismissal.
We conclude the second trial court erred in its conclusion.
Generally, “oral notice in open court of voluntary dismissal
operates to commence the one-year limitation period set out in Rule
41(a)(1).”
Baker v. Becan, 123 N.C. App. 551, 553, 473 S.E.2d 413,
415,
cert. denied, 344 N.C. 629, 477 S.E.2d 37 (1996);
see
Danielson v. Cummings, 300 N.C. 175, 180, 265 S.E.2d 161, 164
(1980) (“[W]hen a case has proceeded to trial and both parties are
present in court[,] the one-year period in which a plaintiff is
allowed to reinstate a suit from a Rule 41(a) voluntary dismissalbegins to run from the time of oral notice of voluntary dismissal
in open court.”). However, in
Thompson v. Newman, 331 N.C. 709,
417 S.E.2d 224 (1992), our Supreme Court created an exception to
the general rule that is applicable to the instant case. In
Thompson, the plaintiff complied with the trial court's express
permission to file written notice of dismissal two days after the
plaintiff gave notice of dismissal in open court.
Id. at 713, 417
S.E.2d at 226. Plaintiff later refiled his claim within a year
after his written notice of dismissal, but over a year after his
oral notice of dismissal. The defendant moved for summary
judgment, arguing that the plaintiff's oral notice commenced the
one-year savings provision. The Court disagreed with the defendant
and held:
[W]hen a trial court instructs, or expressly
permits, a plaintiff who has given oral notice
of voluntary dismissal pursuant to Rule
41(a)(1) to file written notice to the same
effect at a later date during the session of
court at which oral notice was given, and
plaintiff files written notice accordingly,
the one-year period for refiling provided by
the rule begins to run when written notice is
filed.
Id. at 712, 417 S.E.2d at 225.
In the instant case, counsel for both parties engaged in a
discussion with the first trial court judge on 10 September 2001.
As a result of these discussions, the trial judge and the parties
agreed that after the court declared a mistrial, the court would
“put the case on inactive status[] and [the parties] would file
[their] stipulation of dismissal in January.”
Pursuant to these
discussions, the parties signed the Agreement on 10 September 2001
and later executed the two supplements detailed above, whichextended the date for filing the Stipulation of Dismissal from 2
January 2002 to 15 January 2002.
Defendant argues that because the Agreement and its
supplements permitted the parties to file the Stipulation of
Dismissal after the court session had ended, the Agreement was
inconsistent with this Court's decision in
Baker. In
Baker, after
recognizing that the “plaintiff's written notice of dismissal was
filed after the subject session of court had concluded[,]” we held
that the plaintiff's oral notice in court commenced the one-year
limitation period of Rule 41(a). 123 N.C. App. at 554, 473 S.E.2d
at 415. However, we note that in
Baker the plaintiff gave notice
of voluntary dismissal pursuant to Rule 41(a)(1)(i) before she had
rested her case, while in the instant case the parties informed the
first trial court of their agreement to dismiss the action after
plaintiff had rested his case and during defendant's presentation
of evidence. Thus, the dismissal in the instant case was pursuant
to Rule 41(a)(1)(ii), which requires the assent of both parties to
the dismissal. In order for plaintiff to extend the period for
refiling his action, plaintiff would have to gain defendant's
assent to the execution of a supplement or revision of the
Agreement. Therefore, as in
Thompson, “[t]here was no danger
plaintiff could have extended indefinitely the one-year savings
provision of [Rule 41(a)].”
Id. at 713, 417 S.E.2d at 226.
As detailed above, the second trial court based its dismissal
of plaintiff's action on the conclusion that the parties wrongfully
contracted to extend the period of time plaintiff could refile his
action. However, the Agreement does not extend the one-year periodin which plaintiff may refile his claim following the Rule 41
dismissal; it merely dictates the date the dismissal will be filed.
Furthermore, the Agreement does not wrongfully extend the statute
of limitations governing plaintiff's breach of contract, breach of
express and implied warranties, fraud, and unfair and deceptive
trade practices claims. Although plaintiff's second action was
filed outside of the period allowed by the statute of limitations,
the action was filed within one year of the stipulation of
dismissal entered pursuant to Rule 41(a). In such an instance, it
is well established that the statute of limitations is tolled by
the filing of a Rule 41(a) voluntary dismissal, and the plaintiff
is not forbidden from subsequently refiling an action outside the
statute of limitations period but within the period proscribed by
Rule 41(a).
Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362,
365, 344 S.E.2d 302, 304 (1986);
Whitehurst v. Transportation Co.,
19 N.C. App. 352, 356, 198 S.E.2d 741, 743 (1973).
We conclude that plaintiff's claims should not be barred
because he followed the clear directives of a superior court judge
and the terms of an agreement he signed with an opposing party.
Thus, we hold that the trial court erred in concluding that
plaintiff's claims were barred, and we therefore reverse the order
of the trial court.
Reversed and remanded.
Judge ELMORE concurs.
Judge BRYANT concurs in the result.
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