Opinion
No. COA12–1332.
2013-06-4
Devaughn HOLMES v. WAKE COUNTY and Wake County Sheriff's Department.
Hairston Lane Brannon, PA, by Jeremy R. Leonard and James E. Hairston, Jr., for plaintiff. The Office of The Wake County Attorney, by Jennifer J. Jones and Roger Askew, and the Office of the Wake County Sheriff, by John A. Maxfield, for defendants.
Appeal by plaintiff from order entered 6 August 2012 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 25 March 2013. Hairston Lane Brannon, PA, by Jeremy R. Leonard and James E. Hairston, Jr., for plaintiff. The Office of The Wake County Attorney, by Jennifer J. Jones and Roger Askew, and the Office of the Wake County Sheriff, by John A. Maxfield, for defendants.
HUNTER, ROBERT C., Judge.
Plaintiff Devaughn Holmes appeals the order dismissing his complaint and the denial of his motion to amend the complaint. After careful review, we affirm the trial court's order.
Background
On 25 April 2012, plaintiff filed a complaint against Wake County and the Wake County Sheriff's Department (collectively “defendants”) alleging violations of 42 U.S.C. § 1983 and gross negligence. Plaintiff contends that, on 27 September 2010, the Fuquay–Varina police department took him into custody based on a fugitive warrant from the State of Maryland. After being taken into custody, plaintiff alleged that he was denied his rights, in violation of 42 U.S.C. § 1983, and that defendants were grossly negligent by assaulting him during the arrest. Defendants filed an Answer and Motion to Dismiss, asserting six affirmative defenses. The matter came on for hearing on 6 August 2012.
During the hearing, plaintiff commented several times that he had the option of taking a voluntary dismissal pursuant to Rule 41(a), but he never specifically exercised that option. Plaintiff also made an oral motion to amend the complaint to add the surety holding the sheriff's bonds as a party. At the end of his argument, plaintiff stated that: “I know Rule 41 says you can take up [sic] dismissal up until you rest your case, but we've noticed the case is right for hearing and—and just as soon as I sit down I would suggest Your Honor this case is right for hearing on this complaint.” After plaintiff's argument, in open court, the trial court denied plaintiff's motion to amend his pleading and allowed defendants' motion to dismiss after concluding that plaintiff's complaint failed to state a claim upon which relief could be granted. The trial court requested defendants draw up an order and submit it for his signature. At that point, plaintiff stated that he was “taking a dismissal pursuant to Rule 41 without prejudice.” The trial court responded: “I just announced my decision in open court. I don't know that it's appropriate at this point.” The order granting defendants' motion to dismiss was filed at 3:33 p.m. that same day.
Arguments
Plaintiff first argues that the trial court erred by not accepting his voluntary dismissal pursuant to Rule 41(a) because he made his oral notice of voluntary dismissal prior to the trial court “entering,” i.e., filing, the order granting defendants' motion to dismiss. In other words, plaintiff contends he had the right to take a voluntary dismissal up until 3:33 p.m., the time the order was filed. We disagree.
We note that plaintiff's argument on appeal focuses solely on his contention that defendants' motion to dismiss should not have been granted because he made an oral motion to take a voluntary dismissal; plaintiff does not put forth any argument challenging the substance of defendants' motion to dismiss. Accordingly, we will only address whether the trial court erred in not allowing plaintiff to take a voluntary dismissal, not the underlying basis of the trial court's order granting dismissal.
With regard to voluntary dismissals pursuant to Rule 41(a)(1), our Supreme Court has explicitly stated that “[t]he only limitations are that the dismissal not be done in bad faith and that it be done prior to a trial court's ruling dismissing plaintiff's claim or otherwise ruling against plaintiff at any time prior to plaintiff resting his or her case at trial.” Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 597, 528 S.E.2d 568, 573 (2000). Here, while plaintiff noted several times during arguments that he had the option of taking a voluntary dismissal, he never acted on that right. The only time plaintiff actually asserted his right to take the voluntary dismissal was after the trial court issued its ruling dismissing plaintiff's claim. Thus, pursuant to Brisson, plaintiff no longer had the right to take a voluntary dismissal under Rule 41(a)(1). Plaintiff's argument is without merit.
Next, plaintiff argues that the trial court erred by denying his motion to amend his complaint to add the surety holding the sheriff's bonds as a party. We disagree.
This Court reviews a trial court's denial of a motion to amend for an abuse of discretion. Delta Envtl. Consultants of N.C. v. Wysong & Miles Co., 132 N.C.App. 160, 165, 510 S.E.2d 690, 694 (1999). In Mellon v. Prosser, 126 N.C.App. 620, 622, 486 S.E.2d 439, 441 (J. Wynn dissenting), reversed per curiam in part for reasons stated in the dissent,347 N.C. 568, 494 S.E.2d 763 (1998), this Court addressed a similar situation where the plaintiff attempted to amend his complaint to add the surety holding the sheriff's bonds as a necessary party five months after the complaint was filed. While this Court held that the trial court erred in not allowing the plaintiff to amend its complaint, Judge Wynn dissented, arguing that the trial court's order denying the motion to amend should be affirmed based on the plaintiff's failure to provide any compelling reason why the complaint was not amended earlier. Id. at 624–25, 486 S.E.2d at 442–43. Here, as in Mellon, plaintiff failed to indicate any compelling reason why he had not sought to amend his complaint until the date of the hearing, over three months after he filed his complaint. Thus, based on our holding in Mellon, the trial court's denial of the motion to amend does not constitute an abuse of discretion.
Conclusion
Based on the foregoing reasons, we affirm the trial court's order and denial of plaintiff's motion to amend.
AFFIRMED. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).