Smith v. Williams

Court of Appeals of North Carolina

Smith v. Williams

347 S.E.2d 842, 82 N.C. App. 672, 1986 N.C. App. LEXIS 2604

CourtCourt of Appeals of North Carolina

DecidedSeptember 2, 1986

DocketNo. 8625DC372

StatusPublished

Cited by1 cases

This text of 347 S.E.2d 842 (Smith v. Williams) 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.

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Smith v. Williams, 347 S.E.2d 842, 82 N.C. App. 672, 1986 N.C. App. LEXIS 2604 (N.C. Ct. App. 1986).

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Opinion

WHICHARD, Judge.

Both parties’ arguments proceed on the assumption that the 3 January 1985 voluntary dismissal without prejudice to plaintiff was entered pursuant to G.S. 1A-1, Rule 41(a)(1). The same assumption was apparently made in defendant’s motion to dismiss and is also apparently the basis for Judge Vernon’s order allowing the motion.

The language of Judge Green’s 3 January 1985 order allowing the voluntary dismissal without prejudice clearly indicates, however, that plaintiff sought the dismissal pursuant to G.S. 1A-1, Rule 41(a)(2), and there is no indication that the dismissal was entered under another provision. While it may in fact have been entered under another provision, we are bound by the record on appeal.

G.S. 1A-1, Rule 41(a)(2) allows a plaintiff to request that dismissal be entered “upon order of the judge and upon such terms and conditions as justice requires.” Dismissals entered pursuant to this provision are within the discretion of the trial court which may, in the further exercise of its discretion, dismiss with or [674]*674without prejudice. See King v. Lee, 279 N.C. 100, 106, 181 S.E. 2d 400, 404 (1978); Lewis v. Piggott, 16 N.C. App. 395, 397-98, 192 S.E. 2d 128, 131 (1972). Contrary to the practice under North Carolina Rule 41(a)(1), see McCarley v. McCarley, 289 N.C. 109, 111-15, 221 S.E. 2d 490, 493-94 (1976), and contrary to the language and practice under Federal Rule 41(a)(2), see Moore’s Federal Practice Par. 41.09 (2d ed. 1985), the consent of a counterclaiming defendant is not required for dismissals entered pursuant to North Carolina Rule 41(a)(2) to be without prejudice.

It thus appears that the order dismissing this claim without prejudice was properly entered and that the 12 August 1985 order dismissing plaintiffs refiled action was based on a misunderstanding of the law or of the language of the earlier order. The 12 August 1985 order is accordingly vacated, and the cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

Judges Wells and Martin concur.

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WHICHARD, Judge.

Both parties’ arguments proceed on the assumption that the 3 January 1985 voluntary dismissal without prejudice to plaintiff was entered pursuant to G.S. 1A-1, Rule 41(a)(1). The same assumption was apparently made in defendant’s motion to dismiss and is also apparently the basis for Judge Vernon’s order allowing the motion.

The language of Judge Green’s 3 January 1985 order allowing the voluntary dismissal without prejudice clearly indicates, however, that plaintiff sought the dismissal pursuant to G.S. 1A-1, Rule 41(a)(2), and there is no indication that the dismissal was entered under another provision. While it may in fact have been entered under another provision, we are bound by the record on appeal.

G.S. 1A-1, Rule 41(a)(2) allows a plaintiff to request that dismissal be entered “upon order of the judge and upon such terms and conditions as justice requires.” Dismissals entered pursuant to this provision are within the discretion of the trial court which may, in the further exercise of its discretion, dismiss with or [674]*674without prejudice. See King v. Lee, 279 N.C. 100, 106, 181 S.E. 2d 400, 404 (1978); Lewis v. Piggott, 16 N.C. App. 395, 397-98, 192 S.E. 2d 128, 131 (1972). Contrary to the practice under North Carolina Rule 41(a)(1), see McCarley v. McCarley, 289 N.C. 109, 111-15, 221 S.E. 2d 490, 493-94 (1976), and contrary to the language and practice under Federal Rule 41(a)(2), see Moore’s Federal Practice Par. 41.09 (2d ed. 1985), the consent of a counterclaiming defendant is not required for dismissals entered pursuant to North Carolina Rule 41(a)(2) to be without prejudice.

It thus appears that the order dismissing this claim without prejudice was properly entered and that the 12 August 1985 order dismissing plaintiffs refiled action was based on a misunderstanding of the law or of the language of the earlier order. The 12 August 1985 order is accordingly vacated, and the cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

Judges Wells and Martin concur.

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347 S.E.2d 842, 82 N.C. App. 672, 1986 N.C. App. LEXIS 2604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-williams-ncctapp-1986.

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