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Lowe v. Bryant

Filed: February 2, 1982.

FOSTER LEE LOWE AND WIFE, PATRICIA C. LOWE, PLAINTIFFS
v.
ERNEST WELDON BRYANT AND WIFE, SADIE J. BRYANT; AND BERNIE A. FOWLER (WIDOW), DEFENDANTS; FOSTER LEE LOWE AND WIFE, PATRICIA C. LOWE, PLAINTIFFS V. ERNEST WELDON BRYANT AND WIFE, SADIE J. BRYANT; AND H. V. HOLDER, DEFENDANTS



Appeal by plaintiffs from Kivett, Judge. Judgments entered 22 and 23 October 1980 in Superior Court, Surry County. Heard in the Court of Appeals 5 June 1981. On petition of plaintiffs to reconsider our former decision filed 7 July 1981, the appeal was reheard on 14 October 1981.

Martin (Robert M.), Judge. Judges Clark and Hill concur.

Martin

The sole issue on appeal is whether the trial judge erred in disallowing the plaintiffs' notice of voluntary dismissal, which they attempted to file pursuant to Rule 41(a)(1), N.C. Rules Civ. Proc.

Rule 41(a)(1), N.C. Rules Civ. Proc. provides that a voluntary dismissal may be taken by a claimant as to any one or more of his claims by simply filing a notice of dismissal at any time before he rests his case. Except in a class action pursuant to Rule 23 or where otherwise provided by a specific statute, no order or other approval of the court is necessary. W. Shuford, N.C. Civil Practice and Procedure ยง 41-4 (2d ed. 1981); Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980). In this case the defendants had not by way of answer, counterclaim, or crossclaim, asserted a demand for affirmative relief arising out of the same factual situation upon which the plaintiffs are proceeding. In fact, the defendants had filed motions to dismiss the cases. Therefore, the plaintiffs as a matter of right could voluntarily dismiss the actions by filing a notice of dismissal prior to resting their case. Maurice v. Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430 (1978).

In this action defendants had filed a motion to dismiss pursuant to Rule 41(b), N.C. Rules Civ. Proc. which was pending before the court. No order on the motion had been rendered prior to the time plaintiffs attempted to file their motion for voluntary dismissal with the clerk. The hearings on the defendants' motion to dismiss dealt with the factual basis for their motion, not with

the factual allegations upon which the plaintiffs based their action against the defendants.

This factual situation is distinguishable from that in Maurice v. Motel Corp., supra. There, defendant had filed a motion for summary judgment and a full evidentiary hearing had been held. The motion was allowed by the trial judge; but, prior to the actual filing of the order with the clerk, the plaintiff gave a notice of voluntary dismissal pursuant to Rule 41(a)1. On appeal, the court held that the evidentiary hearing on the motion for summary judgment was, in fact, a trial of the case. After the plaintiff had presented his case and submitted the issue to the judge, he had "rested his case" and, therefore, a dismissal pursuant to Rule 41(a)(1) was no longer available to him.

In the instant case, plaintiffs had not presented any evidence upon which they based their claims against defendants. The issue raised by defendants' motion to dismiss pursuant to Rule 41(b) was whether plaintiffs had failed to comply with an order of the court. The evidence presented at the hearings on the motion dealt only with that issue. As such, plaintiffs had not "rested their case" as contemplated by Rule 41(a)(1) and, therefore, could as a matter of right dismiss the action by the filing of a notice of dismissal.

Upon the filing of the notice of dismissal by the plaintiffs herein, the action terminated. The case was closed and nothing further could be done regarding it. The case having been voluntarily dismissed, there was no pending action upon which a valid order could be rendered. As the Supreme Court has recently held in Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980), the plaintiffs' dismissal was effective upon its announcement. As such, the order dismissing the case with prejudice entered after plaintiffs' voluntary dismissal, was invalid and had no effect upon plaintiffs' rights.

In Caroon v. Eubank, 30 N.C. App. 244, 226 S.E.2d 691 (1976), this Court held that at the moment plaintiff filed his notice for voluntary dismissal, the action ended. Because the action was no longer pending, nothing further could validly be done by the court involving the merits of the case. In that case, the plaintiff had tendered a sum of money to a trustee in an attempt to purchase some property at a foreclosure sale. Prior to the plaintiff's receiving

the property, the debtor had paid the obligation in full and had received a deed for the property. The trustee placed the plaintiff's money with the clerk of court pending the determination by the court of who should be the rightful owner of the property. The plaintiff then filed a notice of voluntary dismissal of his action and sought the return of his money. The trial court refused to allow plaintiff to recover his money without a final determination of the matters in controversy between the parties in the action. However, since the action had already been dismissed, the Court of Appeals held that the ...


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