119 N.C. App. 249 | N.C. Ct. App. | 1995
Plaintiff contends that the trial court erred in dismissing plaintiff’s unadjudicated claims. We agree.
In its order dismissing plaintiff’s claims, the trial court held that all of plaintiff’s claims in this action arose out of the same transactions and occurrences as defendants’ counterclaims in the previous action. The trial court stated:
*251 As a result, the plaintiffs present claims are themselves compulsory counterclaims to the counterclaims asserted by the defendants in the first case. Because plaintiff elected not to present its claims for resolution in the first case, plaintiff is now barred from doing so. The Court concludes as a matter of law that the doctrine of res judicata precludes the further prosecution of this action ....
Rule 41(a)(1) of the North Carolina Rules of Civil Procedure provides that any action or any claim therein may be dismissed by the plaintiff without a court order at any time before plaintiff rests his case. G.S. 1A-1, Rule 41(a)(1). Unless otherwise stated, the dismissal is without prejudice and may be refiled within one year of the dismissal. Id. In McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976), our Supreme Court held that when a defendant asserts a counterclaim that arises out of the same transactions and occurrences as plaintiffs initial claim, plaintiff is barred from voluntarily dismissing his initial claim without defendant’s consent. Here, however, plaintiff took a voluntary dismissal of its remaining twenty-six claims after plaintiff had been granted summary judgment on defendants’ counterclaims and after their initial appeal to this Court had been dismissed as interlocutory. Defendants appealed again to this Court after plaintiff took its voluntary dismissal on its remaining claims. After this Court affirmed the trial court’s order in its entirety, plaintiff refiled its remaining claims within the one year period provided by the rules. Since plaintiff’s claims were still pending at the time the trial court entered judgment on defendants’ counterclaims and their appeal to this Court was dismissed as interlocutory, defendants’ counterclaims were completely adjudicated at the time plaintiff took its voluntary dismissal. We conclude that on these facts, plaintiff was entitled to take a voluntary dismissal of their claims and refile them within one year of the voluntary dismissal. Accordingly, the trial court erred in dismissing plaintiff’s action.
Reversed and remanded.
