Newberry Metal Masters Fabricators, Inc. v. Mitek Industries, Inc. , 1993 N.C. LEXIS 17 ( 1993 )

WEBB, Justice.

The question posed by this appeal is whether a party may refile an action to perfect a lien after taking a voluntary dismissal without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1). This rule, by its plain words, provides that “a new action based on the same claim may be commenced within one year after such dismissal^]” See Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980). If the plaintiff is barred from pursuing its action to perfect the liens, it would not be under Rule 41(a)(1) but under Article 2 of Chapter 44A of the General Statutes dealing with statutory liens on real property.

N.C.G.S. § 44A-16 governs the discharge of liens. There is nothing in this section which says a lien is discharged by the taking of a voluntary dismissal without prejudice pursuant to Rule 41(a)(1). The appellants contend that the liens were discharged under N.C.G.S. § 44A-16(4) which says a lien is discharged:

By filing in the office of the clerk of superior court the original or certified copy of a judgment or decree of a court of competent jurisdiction showing that the action by the claimant to enforce the lien has been dismissed or finally determined adversely to the claimant.

This subsection requires that a judgment be filed showing that the action to perfect a lien has been dismissed or otherwise decided adversely to the lien claimant in order to discharge the lien. The appellants concede that a voluntary dismissal is not a judgment. They say, relying on Carter v. Clowers, 102 N.C. App. 247, 401 S.E.2d 662 (1991) and Ward v. Taylor, 68 N.C. App. 74, 314 S.E.2d 814, cert. denied, 311 N.C. 769, 321 S.E.2d 157 (1984), that voluntary dismissals under Rule 41(a)(1) “have many of the earmarks of traditional judgments” and we should so treat the dismissal in this case. In Carter, the Court of Appeals held that a voluntary dismissal under Rule 41(a)(1) could be amended pursuant to N.C.G.S. § 1A-1, Rule 60(b). In Ward, the Court of Appeals held that after a party has taken a voluntary dismissal he may be taxed with the costs under N.C.G.S. § 1A-1, Rule 41(d). It is said in both these cases that a voluntary dismissal is not a judgment. In light of the requirement of N.C.G.S. § 44A-16(4) that a judgment must be filed to discharge a lien, we do not believe we should hold that a lien may be cancelled by taking a voluntary dismissal without prejudice.

The appellants argue further that N.C.G.S. § 44A-16(4) includes a voluntary dismissal because an involuntary dismissal constitutes an adverse judgment by a court which would be a judgment of a court. The appellants say there was no need to put the word “dismissal” in this part of the statute if the General Assembly had not intended it to include voluntary dismissals. The statute says there must be a judgment or decree showing that the action to enforce the lien has been dismissed. In this case, there is no judgment or decree. The liens have not been dismissed.

The appellants make a persuasive argument that in order to insure the stability of titles to real property we should hold that the liens in this case have been discharged. This argument should be addressed to the General Assembly. We are bound by the statutes.

For the reasons stated in this opinion, we affirm the decision of the Court of Appeals.

AFFIRMED.