Dawson v. Allstate Insurance

Court of Appeals of North Carolina

Dawson v. Allstate Insurance

417 S.E.2d 841, 106 N.C. App. 691, 1992 N.C. App. LEXIS 544

CourtCourt of Appeals of North Carolina

DecidedJuly 7, 1992

Docket9110SC433

StatusPublished

Cited by6 cases

This text of 417 S.E.2d 841 (Dawson v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dawson v. Allstate Insurance, 417 S.E.2d 841, 106 N.C. App. 691, 1992 N.C. App. LEXIS 544 (N.C. Ct. App. 1992).

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Opinions

ARNOLD, Judge.

There is a cross assignment of error which is dispositive of this case. Defendant correctly argues that the trial court erred in denying its motion to dismiss plaintiff’s refiled complaint. Plaintiff’s initial complaint was dismissed for failure to state a claim. See N.C.R. Civ. P. 12(b)(6). “Unless the court in its order for dismissal otherwise specifies,” a dismissal for failure to state a claim “operates as an adjudication upon the merits.” N.C.R. Civ. P. 41(b). Therefore, we hold defendant’s motion to dismiss plaintiff’s refiled complaint should have been allowed.

For the reasons stated, judgment is vacated and the matter is remanded for entry of order dismissing the refiled complaint.

Vacated and remanded.

Judge LEWIS concurs. Judge WYNN concurs with separate opinion.

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ARNOLD, Judge.

There is a cross assignment of error which is dispositive of this case. Defendant correctly argues that the trial court erred in denying its motion to dismiss plaintiff’s refiled complaint. Plaintiff’s initial complaint was dismissed for failure to state a claim. See N.C.R. Civ. P. 12(b)(6). “Unless the court in its order for dismissal otherwise specifies,” a dismissal for failure to state a claim “operates as an adjudication upon the merits.” N.C.R. Civ. P. 41(b). Therefore, we hold defendant’s motion to dismiss plaintiff’s refiled complaint should have been allowed.

For the reasons stated, judgment is vacated and the matter is remanded for entry of order dismissing the refiled complaint.

Vacated and remanded.

Judge LEWIS concurs. Judge WYNN concurs with separate opinion.

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Bluebook (online)

417 S.E.2d 841, 106 N.C. App. 691, 1992 N.C. App. LEXIS 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-allstate-insurance-ncctapp-1992.

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