Thompson v. Newman

ORR, Judge.

The issue on appeal is whether the trial court erred in granting defendants’ motion for summary judgment. For the reasons set forth below, we conclude that the statement by plaintiffs’ attorney in open court regarding the taking of a voluntary dismissal is ambiguous as to whether plaintiff is in fact taking a voluntary dismissal or is expressing an intention to do so.

N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (1990) of the North Carolina Rules of Civil Procedure provides in relevant part:

[A]n 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. ... 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. . . .

Although the rule specifies “filing a notice of dismissal,” in Danielson v. Cummings, 300 N.C. 175, 180, 265 S.E.2d 161, 164 (1980), our Supreme Court held that

when a case has proceeded to trial and both parties are present in court, the one-year period in which a plaintiff is allowed to reinstitute a suit from a Rule 41(a)(i) voluntary dismissal begins to run from the time of oral notice of voluntary dismissal given in open court.

Plaintiffs contend that Danielson is distinguishable from the present case in that the trial had not yet begun, neither defendants nor the jury was present, the trial court stated “you may file that later in the week,” and the notice in the case sub judice was filed the following day.

Regarding plaintiffs’ contention that the trial had not begun, we note that on 7 November 1988 the trial court granted a motion to quash and denied plaintiffs’ motion to continue. Following a recess later in the day, the court asked plaintiffs’ attorney, “Are you ready?” Whether in fact the trial court was ready at that immediate time to begin the trial is not clear from the record. The parties or their counsel were present, however.

Regarding the statement of the trial court, “you may file that later in the week,” plaintiffs argue that the trial court “granted Plaintiffs’ counsel specific permission to submit the written dismissal later in the week, rather than have the running of the one-year period begin on the date Plaintiffs’ intention was announced.” Plaintiffs cite State v. Taylor, 311 N.C. 266, 269, 316 S.E.2d 225, 227 (1984), where the court stated that “the trial judge has the inherent authority to control trial proceedings and to extend a term of court if, in his discretion, it is necessary for the prompt and efficient administration of justice.” We do not believe that the trial court by its words was extending the term of court in the interest of the “prompt and efficient administration of justice.” To the contrary, such an extension would not be in the interest of the “prompt and efficient administration of justice.”

Plaintiffs cite no authority to support the contention that filing the following day overrides the oral notice given in open court. Further, we do not believe that the absence of the jury is significant, and though the defendants were not present, defendants were represented by counsel and the court inquired if the plaintiffs were ready to proceed.

The Danielson court stated:

Clearly, when parties confront each other face-to-face in a properly convened session of court where a written record is kept of all proceedings, there is no necessity to file a paper writing in order to take notice of a voluntary dismissal. In such a case, oral notice of dismissal is clearly adequate, and fully satisfies the “filing” requirements of Rule 41(a)(6).

Danielson, 300 N.C. at 179, 265 S.E.2d at 163.

Here there is nothing in the record to indicate that anything other than a “properly convened session of court” was taking place. However, in order for a voluntary dismissal to be effective, a plaintiff must state affirmatively either orally in open court or by filing a notice of dismissal that plaintiff is in fact taking a voluntary dismissal at that time. A prospective oral statement of intent would not be sufficient. Here the statement made by plaintiffs’ attorney that “we’re going to take a voluntary dismissal without prejudice” is ambiguous in the absence of additional evidence as to whether plaintiffs’ attorney was in fact taking a voluntary dismissal or was merely expressing an intention to do so. Neither the record nor the order of the trial court reflects the intention of the plaintiffs nor the understanding of the trial court as to when the actual dismissal took place. Accordingly, summary judgment was inappropriate and the case is remanded to the trial court to make findings of fact consistent with this opinion.

Reversed and remanded.

Judge DUNCAN concurred prior to 29 November 1990. Judge Greene concurs in part and dissents in part.