Carteret County General Hospital Corp. v. Manning

HEDRICK, Judge. This appeal presents for resolution the question of whether the trial court erred in granting defendants’ “motion for non-suit” at the close of plaintiff’s evidence. “When the new rules of Civil Procedure became effective on 1 January 1970, the word nonsuit was banished from our civil practice. In nonjury trials the motion for nonsuit has been replaced by the motion for a dismissal, G.S. 1A-1, Rule 41(b) .... ” Cutts v. Casey, 278 N.C. 390, 411, 180 S.E. 2d 297, 307 (1971). Rule 41 (b) in pertinent part provides: “After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 (a).” *300 Rule 52(a) (1) provides: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its concusions of law thereon and direct the entry of the appropriate judgment.” The requirement that findings of fact be made by the trial judge is “ ‘ intended to aid the appellate court by affording it a clear understanding of the basis of the trial court’s decision, and to make definite what was decided for purpose of res judicata and estoppel. Finally, the requirement of findings should evoke care on the part of the trial judge in ascertaining the facts.’ Wright, Lem of Federal Courts § 96, at 428-29 (1970). See also 9 Wright & Miller, Federal Practice and Procedure § 2371, at 222 (1971).” Helms v. Rea, 282 N.C. 610, 619, 194 S.E. 2d 1, 7 (1973). In their briefs both parties argue whether plaintiff’s claim is barred by the statute of limitations. Obviously, we cannot resolve this question because the facts relative thereto have not yet been found by the trial court. Since the order dismissing plaintiff’s claim is not supported by findings of fact as required by G.S. 1A-1, Rule 41(b), the judgment appealed from is vacated and the cause is remanded to the district court for a New trial. Judges Brock and Britt concur.