Dawson v. Allstate Insurance

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

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.