in the Court of Appeals 10 April 2019
by plaintiff from order entered 13 August 2018 by Judge
Marvin P. Pope, Jr. in Superior Court, Buncombe County. No.
18 CVS 1464
Crumley Roberts, LLP, by David J. Ventura, for
McAngus Goudelock & Courie, by Zephyr Jost Sullivan, for
appeals an order granting defendant's motion for judgment
on the pleadings based upon res judicata. Because we conclude
that plaintiff's voluntary dismissal without prejudice of
her prior lawsuit in Tennessee under Tennessee Rule 41 had no
res judicata effect, we reverse and remand for further
proceedings consistent with this opinion.
June 2016,  plaintiff filed a personal injury action
in Tennessee against defendant, alleging that defendant's
negligence caused her injuries arising out of an automobile
accident. The collision between the parties' vehicles was
on 3 July 2015 in North Carolina, but both parties were
residents of Tennessee. In Tennessee, the statute of
limitations for a personal injury claim is one year.
See Tenn. Code Ann. § 28-3-104(a)(1)(A) (Supp.
2016). On 7 November 2016, plaintiff filed a "Nonsuit
without Prejudice" noticing voluntary dismissal without
prejudice citing "T.R.C.P. 41.01" which is similar
to North Carolina General Statute § 1A-1, 41(a)(1)
(2015). Compare Tenn. R. Civ. P. 41.01; N.C. Gen.
Stat. § 1A-1, Rule 41 (2015). Both the Tennessee Rule of
Civil Procedure Rule 41.01 and North Carolina's Rule of
Civil Procedure 41 allow voluntary dismissal by a plaintiff
without prejudice. Tenn. R. Civ. P. 41.01; N.C. Gen. Stat.
§ 1A-1, Rule 41. Further, both states extend the statute
of limitations to refile a claim for one year from the date
of the voluntary dismissal without prejudice, if the statute
of limitations would have otherwise expired. See
Tenn. Code Ann. § 28-1-105(a) (2000); N.C. Gen. Stat.
§ 1A-1, Rule 41. On 16 November 2016, the Tennessee
trial court entered an order dismissing plaintiff's
action without prejudice, noting it was the first dismissal.
April 2018, plaintiff filed a complaint seeking recovery for
personal injuries arising from the same automobile accident
in North Carolina, alleging essentially the same tort claims
as she had in Tennessee. The statute of limitations for a
personal injury claim in North Carolina is three years,
see N.C. Gen. Stat. § 1-52(16) (2015); so the
North Carolina case was filed within North Carolina's
statute of limitations, see id., but Tennessee's
one year statute of limitations and the one-year extension
would have expired. See Tenn. Code. §§
of 2018, defendant answered plaintiff's complaint,
denying the material factual allegations and alleging several
affirmative defenses, including res judicata. Defendant
Plaintiff filed a nearly identical action in the Circuit
Court of Davidson County, Tennessee. A copy of the pleadings
for this action is attached hereto as Exhibits A-F. On
November 7, 2016, Plaintiff filed Exhibit F, Non-Suit without
Prejudice. Tennessee has a one year statute of limitations
for negligence claims. Plaintiff had one year to re-file her
action after taking the voluntary dismissal, during which the
statute of limitation was tolled. Plaintiff failed to re-file
her action within the time allowed.
later filed a motion for judgment on the pleadings based upon
the res judicata defense. On 13 August 2018, the trial court
granted defendant's motion: "[T]he Court hereby
finds that the Plaintiff's claims are barred by the
doctrine of res judicata. Accordingly, Defendant's Motion
for Judgment on the Pleadings i[s] hereby GRANTED."
Voluntary Dismissal without Prejudice
contends that the trial court erred in granting