Kearns v. Spann

471 S.E.2d 128, 122 N.C. App. 650, 1996 N.C. App. LEXIS 465

• Court: Court of Appeals of North Carolina
• Decided: June 4, 1996
• Docket: No. COA95-1412
• Status: Published

Opinion

MARTIN, John C., Judge.

Farm Bureau argues the trial court erred by denying the motion for costs following plaintiff’s voluntary dismissal. Specifically, Farm Bureau contends Rule 41(d) requires the trial court to enter an order of costs following a voluntary dismissal without prejudice. We agree.

Rule 41(d) provides:

(d) Costs. — A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action.

Pursuant to this rule, the trial court or the clerk of court shall tax the costs of the action to the plaintiff taking a voluntary dismissal. Fields v. Whitehouse and Sons Co., 98 N.C. App. 395, 390 S.E.2d 725, disc. review denied, 327 N.C. 427, 395 S.E.2d 676 (1990).

In this case, the trial court denied Farm Bureau’s motion for costs “at the present time” and ruled that Farm Bureau could seek payment for costs after the conclusion of a second action if one is filed. The trial court erred by failing to tax costs after the voluntary dismissal.

The trial court’s authority after the dismissal of an action is limited to taxing the costs. Id. Therefore, the trial court in this case had authority to do nothing other than enter an order taxing the costs. Its attempt to reserve Farm Bureau’s right to seek costs after the conclusion of a second action is void. See Fields, 98 N.C. App. 395, 390 S.E.2d 725.

Because the order entered by the trial court is void, the order must be vacated and the matter remanded. On remand, the trial court shall determine which expenses set out by Farm Bureau in its affidavit may be taxed against plaintiff and enter an appropriate order taxing costs.

Vacated and remanded.

Judges EAGLES and LEWIS concur.