Opinion
No. COA15-1084
04-19-2016
NEIL A. CORDREY, Plaintiff, v. MICHELLE TODD FLINN and HOLIDAY DELTA, INC. d/b/a DOMINO'S PIZZA, Defendants.
Helms Robison & Lee, P.A., by R. Kenneth Helms, Jr., for plaintiff-appellant. Burton, Sue & Anderson, LLP, by Gary K. Sue and Andrea Dancy Harrell, for defendant-appellee Michelle Todd Flinn. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Ellen P. Wortman, for defendant-appellee Holiday Delta, Inc. d/b/a Domino's Pizza.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Brunswick County, No. 14 CVS 2190 Appeal by plaintiff from order entered 11 May 2015 by Judge Robert F. Floyd in Brunswick County Superior Court. Heard in the Court of Appeals 7 March 2016. Helms Robison & Lee, P.A., by R. Kenneth Helms, Jr., for plaintiff-appellant. Burton, Sue & Anderson, LLP, by Gary K. Sue and Andrea Dancy Harrell, for defendant-appellee Michelle Todd Flinn. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Ellen P. Wortman, for defendant-appellee Holiday Delta, Inc. d/b/a Domino's Pizza. ZACHARY, Judge.
Where plaintiff gave oral notice of voluntary dismissal in open court, and filed written notice after the session of court had ended, the one-year statute of limitations on refiling his claims began when he gave oral notice. The trial court did not err in granting defendants' motions to dismiss plaintiff's claims due to the tolling of the limitations period.
I. Factual and Procedural Background
On 17 April 2009, the vehicle of Neil Cordrey (plaintiff) collided with that of Michelle Flinn (Flinn) on Lanvale Road in Brunswick County. At the time of the incident, Flinn was performing her duties as an employee of Holiday Delta, Inc. (Domino's). On 2 April 2012, plaintiff filed suit against Flinn and Domino's (collectively, defendants), alleging various acts of negligence by Flinn, and respondeat superior liability of Domino's. On 8 June 2012, Domino's filed a motion to dismiss, and on 11 June 2012, Domino's filed its answer. Flinn filed her answer on 23 August 2012. The matter proceeded to trial in Brunswick County Superior Court, and on 6 November 2013, plaintiff gave oral notice before the court of the voluntary dismissal without prejudice of his action against defendants. On 9 December 2013, the parties signed a stipulation of plaintiff's voluntary dismissal without prejudice.
On 26 November 2014, plaintiff filed a new complaint against defendants that was substantially similar to the prior complaint. Domino's filed its answer on 20 January 2015. On 20 February 2015, Flinn filed her answer and motion to dismiss. Domino's filed a motion to dismiss on 2 March 2015. Both motions to dismiss were predicated upon the tolling of the one-year statute of limitations created by plaintiff's oral notice of dismissal on 6 November 2013. These motions were heard on 13 April 2015, at which time the trial court granted defendants' motions to dismiss.
Plaintiff appeals.
II. Standard of Review
"This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff'd per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).
III. Voluntary Dismissal
In his sole argument on appeal, plaintiff contends that the trial court erred in granting defendants' motions to dismiss. We disagree.
Rule 41(a)(1) of the North Carolina Rules of Civil Procedure provides that:
Subject to the provisions of Rule 23(c) and of any statute of this State, an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim. If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time.N.C. R. Civ. P. 41(a)(1). In other words, when a plaintiff voluntarily dismisses his claims, which he may do either by filing a notice prior to resting his case or by filing a stipulation signed by all the parties, he has one year to refile his claims, unless the stipulation specifies a shorter time.
Plaintiff argues that the limitations period within which he could renew his claim began to run on 9 December 2013, when the parties signed a stipulation of dismissal. Plaintiff asserts that therefore his renewed claim, which was filed on 26 November 2014, fell within the one-year limitations period, and that the trial court erred in dismissing the renewed complaint. Defendants, by contrast, maintain that the one-year limitations period began to run on 6 November 2013, when plaintiff's oral notice of voluntary dismissal was given, and that therefore the tolled period had expired before 26 November 2014, when plaintiff filed his renewed complaint.
In essence, plaintiff contends that the signed stipulation served to extend his time for refiling, beyond his initial notice of dismissal on 6 November 2013. This notion seems to contradict Rule 41, which posits that a signed stipulation may shorten the time allowed for refiling; the rule says nothing about extending it.
Our Supreme Court has held that, where oral notice of voluntary dismissal is given in open court and on the record, it may function as written notice in civil actions. See Danielson v. Cummings, 300 N.C. 175, 179, 265 S.E.2d 161, 163 (1980) (holding that "when parties confront each other face-to-face in a properly convened session of court where a written record is kept of all proceedings, . . . oral notice of dismissal is clearly adequate, and fully satisfies the 'filing' requirements of Rule 41(a)(i)"). Accordingly, in the instant case, plaintiff's oral notice in court functioned as a filing of notice of voluntary dismissal.
Our Courts have consistently held that oral notice of voluntary dismissal serves to start the one-year refiling period specified in Rule 41. See Baker v. Becan, 123 N.C. App. 551, 553, 473 S.E.2d 413, 415 (1996) (holding that "[i]n this jurisdiction, oral notice in open court of voluntary dismissal operates to commence the one-year limitation period set out in Rule 41(a)(1)"); Cassidy v. Cheek, 308 N.C. 670, 674, 303 S.E.2d 792, 795 (1983) (holding that "[a]lthough written notice of dismissal was filed, the effective date of the dismissal for statute of limitations purposes is the date the dismissal was announced in open court,"); see also Johnson v. Hutchens, 103 N.C. App. 384, 385, 405 S.E.2d 597, 598 (1991); Danielson, 300 N.C. at 179, 265 S.E.2d at 163.
Our Supreme Court subsequently recognized an exception to this rule, where the trial court accepted oral notice of voluntary dismissal, and then instructed the parties to enter a stipulation. In Thompson v. Newman, 331 N.C. 709, 417 S.E.2d 224 (1992), at trial on 7 November 1988, the plaintiff expressed a desire to voluntarily dismiss his claim. The trial court assented, and in colloquy, requested that plaintiff file written notice later in the week. He did so on 9 November 1988. On 8 November 1989, plaintiff refiled his claim. This was more than one year after the oral dismissal in open court, but less than one year after the subsequent written notice. On appeal from the trial court's grant of summary judgment in favor of defendant, our Supreme Court held that:
[W]hen a trial court instructs, or expressly permits, a plaintiff who has given oral notice of voluntary dismissal pursuant to Rule 41(a)(1) to file written notice to the same effect at a later date during the session of court at which oral notice was given, and plaintiff files written notice accordingly, the one-year period for refiling provided by the rule begins to run when written notice is filed.Thompson, 331 N.C. at 712, 417 S.E.2d at 225. In other words, because the trial court explicitly instructed the plaintiff to file a written notice of voluntary dismissal, there was no violation of Rule 41 in allowing the one-year period to extend from the date of the written filing, rather than from the date of the plaintiff's oral notice.
In the instant case, however, no such instruction took place. Plaintiff appeared before the trial court and simply expressed a desire to voluntarily dismiss the complaint, which the court acknowledged. There was no instruction by the court to file a written notice, and no expression of a definite time within which such written notice need be filed. Accordingly, the standard rule that the limitations period begins when oral notice is given applies to the facts before us.
The facts of this case are analogous to those of Baker v. Becan. In Baker, the plaintiff, prior to resting her case, announced her intention to file a voluntary dismissal in open court on 7 July 1993. She later filed a written stipulation of voluntary dismissal on 12 July 1993. On 12 July 1994, she sought an extension of time within which to file her new complaint. Plaintiff then appealed the dismissal of her action, asserting that the time to file her new action began on 12 July 1993, when written notice was filed, rather than 7 July 1993, when oral notice was given. On appeal, we noted the Thompson exception to the traditional rule, but observed that:
In the case sub judice, there is no evidence the trial court "instruct[ed]" or "expressly permit[ted]" plaintiff to file written notice of dismissal at a later date. While the statement of plaintiff's counsel informing the court of his intention to prepare the dismissal document upon returning to his office might arguably imply tacit approval of the court, counsel's announcement in no way constitutes either "express permission" or "instruction" by the court to file at a later date so as to bring this case within the rubric of Thompson. Further, it appears from the record that plaintiff's written notice of dismissal was filed after the subject session of court had concluded.Baker, 123 N.C. App. at 554, 473 S.E.2d at 415.
In short, the one-year limitation period within which plaintiff might have renewed her claim under Rule 41(a)(1) commenced 7 July 1993, the date plaintiff's counsel stated in open court that he intended to file notice of voluntary dismissal. As plaintiff's second "Application and Order Extending Time to File Complaint" was not filed until 12 July 1994, her claim was barred by the limitations period and was properly dismissed by the trial court.
In the instant case, as in Baker, there is no evidence that the trial court "instruct[ed]" or "expressly permit[ted]" plaintiff to file written notice of dismissal at a later date. The written stipulation was signed more than a month later, clearly after the session of court had concluded. As such, we hold as in Baker that the one- year limitation period within which plaintiff might have renewed his claim began to run on 6 November 2013, when plaintiff stated in open court that he intended to take a voluntary dismissal of his action. As plaintiff's renewed complaint was filed on 26 November 2014, his claim was barred by the limitations period and was properly dismissed by the trial court.
This argument is without merit.
AFFIRMED.
Chief Judge McGEE and Judge STROUD concur.
Report per Rule 30(e).