Doe v. Duke University

GREENE, Judge. Jane Doe (plaintiff) appeals from a protective order entered 22 November 1993 and an order entered 1 December 1993 in Durham County Superior Court, denying her motion for relief from the protective order, in her action for conversion of personal property, unfair and deceptive trade practices, and creation of a constructive trust in favor of plaintiff. The pertinent facts are as follows: In 1976, plaintiff underwent surgery at Duke University Medical Center (Duke) for implantation of breast prostheses. In 1992, plaintiff underwent surgery again at Duke for removal of the breast prostheses (implants). Plaintiff requested Duke to return the implants prior to this litigation; however, the parties could not reach an agreement on the conditions of custody. In July 1993, plaintiff filed a complaint against Duke, alleging conversion and unfair and deceptive trade practices, and seeking, among other remedies, an order instructing Duke “to immediately release to the Plaintiff all implant devices and material removed from the Plaintiff.” In September 1993, Duke made a motion for protective order pursuant to N.C. Gen. Stat. § 1A-1, Rule 26 (1990). On 22 November 1993, the trial court entered a protective order which provided that the implants “shall be turned over to the exclusive care, custody and control of Lynne M. Holtkamp, attorney for” plaintiff for at least five years during which time Ms. Holtkamp was required to preserve the implants, to make them available to Duke as needed, to give Duke notice of their location, and to abide by federal regulations concerning handling of the implants. On 23 November 1993, plaintiff made a motion to amend the protective order to relieve Ms. Holtkamp of the responsibility of having care, custody and control of the implants and to deliver the implants to a New York pathologist. This motion, however, was denied by order filed 3 December 1993. Plaintiff filed notice of appeal as to both the protective order and the order denying her motion to amend the protective order on 21 [408] December 1993. On 9 February 1994, plaintiff filed a notice of voluntary dismissal without prejudice of her July 1993 complaint. The issue presented is whether the correctness of the trial court’s orders concerning possession of the implants is properly before this Court where plaintiff has entered a dismissal in her action for custody of the implants. Once a party voluntarily dismisses her action pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (1990), “it [is] as if the suit had never been filed,” Tompkins v. Log Sys., Inc., 96 N.C. App. 333, 335, 385 S.E.2d 545, 547 (1989), disc. rev. denied, 326 N.C. 366, 389 S.E.2d 819 (1990), and the dismissal “carries down with it previous rulings and orders in the case.” Gibbs v. Light Co., 265 N.C. 459, 464, 144 S.E.2d 393, 398 (1965) (quoting 11 A.L.R.2d 1407, 1411). Therefore, because plaintiff has entered a dismissal in her action for claim and delivery of the implants, her present argument in this Court that the trial court erred in entering the protective order concerning possession of the implants is moot, and we need not consider it. See Walker v. Walker, 59 N.C. App. 485, 489, 297 S.E.2d 125, 128 (1982). Because the protective order was nullified by plaintiffs dismissal, it is vacated and remanded. On remand, the trial judge shall enter an order directing that possession of the implants be returned to defendant. Vacated and remanded. Judge COZORT concurs. Judge LEWIS dissents.