Carter v. Clowers

Annotate this Case

401 S.E.2d 662 (1991)

Brandon A. CARTER, By and Through his Guardian Ad Litem, Alvin Carter, Plaintiff, v. John William CLOWERS and Joseph Alexander Deeney, Defendants.

No. 9010SC698.

Court of Appeals of North Carolina.

March 19, 1991.

*663 Kirby, Wallace, Creech, Sarda, Zaytoun & Cashwell by Peter J. Sarda and Richard P. Nordan, Raleigh, for plaintiff-appellee.

*664 Bailey & Dixon by Gary S. Parsons and Mary Elizabeth Clarke, Raleigh, for defendants-appellants.

ARNOLD, Judge.

Defendants' sole assignment of error is whether the court erred in granting plaintiff's motion to amend his notice of voluntary dismissal with prejudice.

Initially, we question the trial court's reasoning for allowing the motion to amend the Rule 41(a) dismissal. The second Finding of Fact reads, "The Notice of Dismissal with prejudice has no effect on a claim against Defendant Deeney because the Court had no personal jurisdiction over him when the dismissal was entered." If the trial court did not have jurisdiction over defendant when the dismissal was filed, what is the basis for the court's jurisdiction to amend that notice now? Moreover, a voluntary dismissal is effective whether or not a court has jurisdiction. A plaintiff is free to abandon an alleged or potential claim against another party at any time. Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459 (1949). Moreover, a Rule 41(a)(1) notice of dismissal is an action taken by the plaintiff ending the suit, and no action of the court is necessary to give the notice its full effect. American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.1963).

Furthermore, we doubt that a Rule 15(a) motion is the proper procedural tool for correcting an error that appears in a notice of dismissal. G.S. § 1A-1, Rule 15(a) provides that after defendant has served a responsive pleading, plaintiff "may amend his pleading only by leave of court or by written consent of the adverse party." While the terms of the rule require that "leave shall be freely given when justice so requires," the rule necessarily presumes that some cause of action must be pending in order for the court to have jurisdiction to exercise its discretion. G.S. § 1A-1, Rule 15(a). We note further that Rule 15(a) allows amendments to "pleadings." Accordingly, the question is whether a notice to dismiss is like a pleading, which can be amended by Rule 15(a), or whether it is more like a judgment, which after it is entered terminates the court's power to allow amendments.

Under G.S. § 1A-1, Rule 41(a)(1), plaintiff may voluntarily dismiss his suit, without order of the court, by filing a notice of dismissal at any time before resting his case. The rule provides that dismissal is without prejudice, unless otherwise stated, allowing plaintiff to commence a new action based on the same claim within one year. G.S. § 1A-1, Rule 41(a)(1). A dismissal taken with prejudice, however, "indicates a disposition on the merits, [and] is said to preclude subsequent litigation to the same extent as if the action had been prosecuted to a final adjudication." Johnson v. Bollinger, 86 N.C.App. 1, 8, 356 S.E.2d 378, 383 (1987) (quoting Barnes v. McGee, 21 N.C.App. 287, 289, 204 S.E.2d 203, 205 (1974)).

For the purposes of this case, federal Rule 41(a)(1) is the same as our state law. As one federal court has noted, "[A] notice of dismissal itself is the operative document." Noland v. Flohr Metal Fabricators, Inc., 104 F.R.D. 83, 85 (1984). In a frequently cited case concerning the effect of a notice of dismissal, the Fifth Circuit Court of Appeals stated:

That document itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of court closing the file.

American Cyanamid, at 297 (5th Cir.1963). It also is logical to assume that neither can a plaintiff revive an action he or she voluntarily dismissed. "After the dismissal, there is no longer a pending action, and therefore no further proceedings are proper." Noland, at 85 (citing 9 C. Wright & A. Miller, Federal Practice and Procedure § 2367, at 186 (1971)).

While no North Carolina cases specifically address whether a court has jurisdiction to allow a Rule 15(a) motion to amend a Rule 41(a)(1) notice of dismissal, this Court *665 has on several occasions disallowed motions to amend pleadings after final judgment was entered. See Harris v. Family Medical Center, 38 N.C.App. 716, 248 S.E.2d 768 (1978) (plaintiff's right to amend lost if trial court grants defendant's motion for judgment on the pleadings); Johnson v. Bollinger, 86 N.C.App. 1, 356 S.E.2d 378 (1987) (once a Rule 12(b)(6) motion is granted, the trial court is "no longer empowered to grant plaintiff leave to amend under Rule 15(a)...." Id. at 7, 356 S.E.2d at 382); Sentry Enterprises, Inc. v. Canal Wood Corp. of Lumberton, 94 N.C.App. 293, 380 S.E.2d 152 (1989) (plaintiff may not amend his pleadings after entry of summary judgment, even if the grant to amend is made on the court's own motion).

Given the cases cited and the construction of Rule 41(a)(1), we find that plaintiff's original notice of dismissal did, by itself, operate to dismiss the suit as to both defendants. Because the suit was no longer pending, the amended notice was ineffective to undo the original notice. See Noland, 104 F.R.D. at 85.

Nevertheless, we believe G.S. § 1A-1, Rule 60(b), Relief from Judgment or Order, provides a permissible method to reopen this case. Rule 60(b) permits a party to move for relief from "a final judgment, order or proceeding...." for reasons of

"(1) [m]istake, inadvertence, surprise, or excusable neglect." (emphasis added). To proceed under Rule 60(b), however, requires an initial determination of whether a notice of dismissal constitutes a "judgment, order or proceeding." A federal case, very similar to the one before us, offers some guidance. See Noland, 104 F.R.D. 83. In Noland, a federal district court concluded that a voluntary "dismissal can be considered a `proceeding' thus allowing relief via Rule 60(b)." Noland, 104 F.R.D. at 86.

In Noland, the plaintiff brought an action against two defendants, then sought to dismiss one by filing a Rule 41 notice of dismissal as to the "action." Inadvertently, he failed to limit the dismissal to only one defendant. Id. at 84. Then plaintiff, just as in the case before us, attempted to amend the notice of dismissal by using Rule 15(a). The district court rejected that approach, but on its own initiative granted plaintiff relief from the notice to dismiss by way of Rule 60(b). The court examined the plaintiff's Amended Notice of Dismissal and determined that it satisfied the requirements of a valid Rule 60(b) motion for relief from judgment. Id. at 87. While this approach may seem unorthodox, Rule 60(b) is an unusual rule, having been described as "a grand reservoir of equitable power." Jim Walter Homes, Inc. v. Peartree, 28 N.C.App. 709, 712, 222 S.E.2d 706, 708 (1976). The facts here warrant equity's intrusion into this problem.

Of course, the usual method for seeking relief under Rule 60(b) is by filing a motion. Nonetheless, other means may be sufficient. "[N]omenclature is unimportant, moving papers that are mislabeled in other ways may be treated as motions under Rule 60(b) when relief would be proper under that rule." 7 J. Moore & J. Lucas, Moore's Federal Practice § 60.18[8], at 60-139 (2d ed. 1983). "[A]lthough Rule 60 says that the court is to act `on motion,' it does not deprive the court of the power to act in the interest of justice in an unusual case where its attention has been directed to the necessity for relief by means other than a motion." Taylor v. Triangle Porsche-Audi, Inc., 27 N.C.App. 711, 717, 220 S.E.2d 806, 811 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976).

Another concern here, however, is whether defendant Deeney has been prejudiced by this decision to consider plaintiff's motion to amend as a Rule 60(b) motion. Specifically, did the amended notice identify the original error and clarify the action sought, thereby alerting defendant of the change desired? See Noland, 104 F.R.D. at 87. In this case, the motion to amend the dismissal identified the date of the original motion, the error that occurred in the original and the clarification sought. Thus, it meets the technical requirements of a Rule 60(b) motion.

The trial court's order granting the motion to amend also contains findings of fact and conclusions pertinent to the *666 issue of prejudice. Facts found by a judge in this context are conclusive if there is any evidence on which to base such findings. Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971). The trial judge found that the dismissal with prejudice as to Deeney was an inadvertent mistake made by plaintiff's counsel. He concluded the error was due to "excusable neglect." The dismissal was not entered with the consent of the minor plaintiff, and neither was it based on any agreement between the parties. Defendants were completely surprised by Deeney's dismissal with prejudice, and the trial judge concluded no evidence of prejudice existed.

The decision to dismiss Clowers apparently occurred after the parties agreed that Clowers' insurance covered Deeney's operation of the vehicle. Once this was determined, the parties agreed to dismiss Clowers, but a dismissal with prejudice of Deeney was never contemplated by either party.

Finally, Rule 60(b) contains a time limitation. A motion based on Rule 60(b)(1) for "excusable neglect" must be made within a "reasonable time, and ... not more than one year after the judgment, order or proceeding was entered or taken." G.S. § 1A-1, Rule 60(b). Considering the motion to amend as a Rule 60(b) motion satisfies this time requirement because it was filed about three months after the original notice of dismissal.

The purpose of Rule 60(b) is to strike a proper balance between the conflicting principles of finality and relief from unjust judgments. 11 C. Wright & A. Miller, supra, § 2851. Generally, the rule is liberally construed. See Howard v. Williams, 40 N.C.App. 575, 253 S.E.2d 571 (1979). Procedural actions that prevent litigants from having the opportunity to dispose of their case on the merits are not favored. See id. There has been no decision on the merits of this case.

Based on the foregoing analysis, we construe the motion to amend the dismissal as a Rule 60(b) motion and grant plaintiff the relief he sought from the original dismissal. Therefore, the action is dismissed with prejudice as to defendant Clowers and without prejudice as to defendant Deeney. Although we take an alternative procedural route, the result here is to affirm the relief granted in the trial court's judgment.

Modified and Affirmed.

JOHNSON and LEWIS, JJ., concur.