Walker Frames v. Shively

Annotate this Case

473 S.E.2d 776 (1996)

WALKER FRAMES, a Division of B.P. Land Development, Inc., Plaintiff, v. William Ray SHIVELY and Dewey Lester Shively, Defendants.

No. COA95-688.

Court of Appeals of North Carolina.

August 20, 1996.

*778 Hammond & Hammond by L.T. Hammond, Jr., Asheboro, for plaintiff-appellant.

Moser, Schmidly, Mason & Roose by Stephen S. Schmidly, Asheboro, for defendant-appellees.

EAGLES, Judge.

We first address plaintiff's argument that the trial court erred in failing to vacate a judgment that is void as a matter of law. Plaintiff argues that defendants could not assert a claim for damages in a motion after plaintiff, through counsel, had already taken a voluntary dismissal pursuant to Rule 41(a). We agree.

On 11 April 1994, plaintiff's attorney validly took a voluntary dismissal in open court pursuant to Rule 41(a)(1)(i) as noted in the minutes of the Randolph County Clerk of Superior Court. Johnson v. Hutchens, 103 N.C.App. 384, 385, 405 S.E.2d 597, 598 (1991). By taking this voluntary dismissal orally in open court before defendants asserted any counterclaim, plaintiff terminated all adversary proceedings in this case. G.S. 1A-1, Rule 41(a) (1983); Fields v. Whitehouse & Sons Co., 98 N.C.App. 395, 397-98, 390 S.E.2d 725, 726-27, disc. review denied, 327 N.C. 427, 395 S.E.2d 676 (1990). A Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as provided by Rule 41(d) which authorizes the court to enter specific orders apportioning and taxing costs. Fields, 98 N.C.App. at 397-98, 390 S.E.2d at 726-27; see also Universidad Central Del Caribe, Inc. v. Liaison Committee on Medical Education, 760 F.2d 14, 19 n. 4 (1st Cir.1985) (stating that a Rule 41(a) dismissal "itself closes the file ..." and, after a Rule 41(a) dismissal, "[t]here is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play."). Moreover, absent an ongoing lawsuit, the provisions of Rule 13(e) allowing a defendant to present a late arising claim "as a counterclaim by supplemental pleading ..." are inapplicable. Accordingly, we conclude that defendant's only remedy here is to file a separate claim against the plaintiff in accordance with the provisions of Rule 3 and served in accordance with the provisions of Rule 4. Davis v. Wallace, 190 N.C. 543, 547-48, 130 S.E. 176, 179-80 (1925).

We note that defendants cite G.S. 1-475 in support of their position. G.S. 1-475 provides that a plaintiff seeking claim and delivery of a defendant's property must secure a bond in an amount equal to twice the value of the seized property so that the defendant will not be damaged in the event it can be shown that the plaintiff is not lawfully entitled to possession of the seized property. G.S. 1-475 (1885 & Supp 1995). Contrary to defendants' assertion, however, this language does not confer any right to prosecute an action in the manner attempted by defendants here.

In sum, we recognize that plaintiff here may be subject to liability due to plaintiff's failure to prosecute its action after taking defendants' property under a writ of claim and delivery. Davis, 190 N.C. at 547-48, 130 S.E. at 179-80. As we have stated, however, any claim arising due to this failure may be prosecuted only in a separate action. Accordingly, the order of the trial court is vacated and the cause is remanded to the trial court with direction to dismiss any purported claims asserted by defendants' motion in this action. We need not address plaintiff's remaining assignments of error.

Vacated and remanded.

JOHN and WALKER, JJ., concur.