Johnson v. Hutchens

ARNOLD, Judge. Plaintiff contends the trial court erred in granting defendant’s motion to dismiss based on plaintiff’s failure to commence a new action within one year of a voluntary dismissal. We agree. The issue presented is on what date did the one year period begin in which plaintiff could reinstitute suit following the dismissal. N.C.R. Civ. P. 41(a)(l)(i). Defendant argues that the one year period began on 8 May 1987. On this date plaintiff’s attorney called the office of defendant’s attorney and left a message that plaintiff was taking a dismissal in the action. He also mailed defendant’s attorney a copy of the dismissal dated 8 May 1987. Plaintiff contends the time period began running after the clerk of court received and stamped the written notice of dismissal as filed on 11 May 1987. Rule 41(a)(l)(i) allows a plaintiff to dismiss an action or any claim “at any time before the plaintiff rests his case[.]” N.C.R. Civ. P. 41(a)(l)(i) (emphasis added). The former practice of allowing voluntary dismissals at any time before the verdict under N.C. Gen. Stat. § 1-25 (repealed by Session Laws 1967) influenced North Carolina’s adoption of Rule 41. W.A. Shuford, North Carolina Civil Practice and Procedure, § 41-4 (2d ed. 1981). This influence prompted our Supreme Court to note “the very strong tradition in this State equating oral notice in open court with written notice filed with the clerk.” Danielson v. Cummings, 300 N.C. 175, 179, 265 S.E.2d 161, 163 (1980). Based upon this past practice the Supreme Court found oral notice of voluntary dismissal in open court “is clearly adequate, and fully satisfies the ‘filing’ requirements of Rule 41(a)[(l)](i).” Id. Despite language in Gillikin v. Pierce, 98 N.C. App. 484, 391 S.E.2d 198, review denied, 327 N.C. 427, 395 S.E.2d 677 (1990), which could be read as suggesting otherwise, no means other than oral notice in open court have been allowed to substitute for the filing requirements of Rule 41(a)(l)(i). Contact with defendant’s attorney by telephone or mail concerning voluntary dismissal does not satisfy the filing requirement of Rule 41(a)(l)(i). Voluntary [386] dismissal without prejudice of the action below occurred when written notice was received and filed by the clerk of court on 11 May 1987. Rule 41(a)(1) allows a new action based on the same claim to “be commenced within one year after such dismissal” unless a shorter time is specified. Plaintiff commenced a new action based on the same claim on 11 May 1988. “In computing any period of time prescribed or allowed by these rules, . . . the day of the act . . . after which the designated period of time begins to run is not to be included.” N.C.R. Civ. P. 6(a). The trial court erred in dismissing plaintiffs action based upon its erroneous holding that plaintiff had failed to commence a new action within one year after the dismissal of the prior action. Reversed. Judges Wells and Phillips concur.