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Barefoot v. Rule

Court of Appeals of North Carolina

May 21, 2019

SHEENA BAREFOOT, Plaintiff
v.
JACQUELYN PATRICIA RULE, Defendant.

          Heard in the Court of Appeals 10 April 2019

          Appeal 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 plaintiff-appellant.

          McAngus Goudelock & Courie, by Zephyr Jost Sullivan, for defendant-appellee.

          STROUD, JUDGE

         Plaintiff 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.

         I. Background

         On 28 June 2016, [1] 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.

         On 5 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. §§ 28-1-105(a); -3-104(a)(1)(A).

         In June of 2018, defendant answered plaintiff's complaint, denying the material factual allegations and alleging several affirmative defenses, including res judicata. Defendant alleged:

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.

         Defendant 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." Plaintiff appeals.

         II. Voluntary Dismissal without Prejudice

         Plaintiff contends that the trial court erred in granting defendant's ...


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