Opinion
No. COA12–1585.
2013-07-16
Walter BREEDE and Elizabeth J. Breede, Plaintiffs, v. Mary Rose BREEDE, Defendant.
Eugene Boyce, for Plaintiffs. Wake Family Law Group, by Nancy L. Grace and Katie H. King, for Defendant.
Appeal by Plaintiffs from order entered 13 September 2012 by Judge Shannon R. Joseph in Wake County Superior Court. Heard in the Court of Appeals 23 May 2013. Eugene Boyce, for Plaintiffs. Wake Family Law Group, by Nancy L. Grace and Katie H. King, for Defendant.
DILLON, Judge.
Walter and Elizabeth Breede (Plaintiffs) appeal from an order dismissing their claims against their former daughter-in-law, Mary Rose Breede (Defendant). We affirm.
I. Factual & Procedural Background
This matter involves two separate but related actions. The first action was commenced and maintained in Wake County District Court (the district court action). The case sub judice was subsequently commenced in Wake County Superior Court.
On 1 March 2010, Defendant commenced the district court action by filing a complaint for absolute divorce against her then-husband, Mark Walter Breede, who is Plaintiffs' son. On or about 8 April 2010, Plaintiffs moved to intervene to assert claims against Defendant relating to certain real property subject to equitable distribution. Plaintiffs were subsequently joined as parties in the district court action pursuant to a stipulation and consent order entered on or about 24 May 2010.
Plaintiffs' complaint sought (1) a judgment setting aside deed of conveyance; (2) imposition of a constructive trust; (3) restitution and damages; and (4) equitable injunctive relief.
These matters came on for hearing before District Court Judge Christine Walczyk on 25 April 2011. Plaintiffs—as intervenors in the action—moved for summary judgment on all claims, and Defendant moved for partial summary judgment as to some of those claims. Judge Walczyk denied Plaintiffs' motion for summary judgment and granted Defendant's motion for partial summary judgment. That same day, the case proceeded to trial on Plaintiffs' remaining claims (those which had not been disposed of by summary judgment) against Defendant. At the close of Plaintiffs' evidence, Defendant moved to dismiss Plaintiffs' remaining claims pursuant to N.C. Gen.Stat. § 1A–1, Rule 41(b) (2011). Judge Walczyk granted Defendant's motion and entered an order of involuntary dismissal pursuant to Rule 41(b). The record on appeal includes a copy of Judge Walczyk's order, which is captioned “RULE 41(B) DISMISSAL” and bears her signature. The order provides as follows:
THIS MATTER was before the undersigned district court judge ... on April 25, 2011 on [Defendant's] Motion to Dismiss [Plaintiffs'] claims under Rule 41(b) made at the close of [Plaintiffs'] evidence. Pursuant to Rule 41(b), the claims of [Plaintiffs] are involuntarily dismissed in that based on the law and the facts, [Plaintiffs] have shown no right to relief.
The time stamp on this copy of the order reflects that it was filed with the clerk's office at 4:54 p.m. on 25 April 2011.
Also included in the record is a second copy of the order, which does not bear Judge Walczyk's signature and which appears to have been altered dramatically by handwritten notations: the caption reads “RULE 41(B) (6) VOLUNTARY DISMISSAL”; most of the language in the body of the order has been crossed out; the handwriting provides that this voluntary dismissal was taken at “3:10 pm” and was “filed with Courtroom Clerk at 4:50 p.m. [on] 25 April 2011”; and, finally, in place of the Judge Walczyk's signature appears the signature of Plaintiffs' counsel, “EUGENE BOYCE, ATTORNEY FOR [PLAINTIFFS].” The document bears a time stamp indicating that it was actually filed with the clerk's office at 4:55 p.m., one minute after Judge Walczyk's order was filed.
We note that Defendant has included in her appellate brief portions of the transcript from the 25 April 2011 hearing. Because this transcript was not made part of the appellate record, however, we do not consider it in reaching our holding. See Horton v. New South Ins. Co., 122 N.C.App. 265, 268, 468 S.E.2d 856, 858 (1996); see alsoN.C. R.App. P. 9(a) (2013).
Plaintiffs filed a notice of appeal from the district court's Rule 41(b) dismissal order on 12 May 2011; however, Plaintiffs never proceeded with the appeal.
On or about 3 February 2012, Plaintiffs commenced this second action in Wake County Superior Court. Plaintiffs' complaint alleges three claims against Defendant, which, in substance, are the same claims that Plaintiffs asserted against Defendant in the district court action. On 18 May 2012, Defendant moved to dismiss Plaintiffs' complaint, contending, inter alia, that Plaintiffs' claims had been previously adjudicated in the district court action, and, accordingly, that Plaintiffs were barred from reasserting these claims against Defendant under the doctrine of res judicata. The trial court agreed and dismissed Plaintiffs' complaint with prejudice. From this order, Plaintiffs appeal.
II. Analysis
Plaintiffs contend that the trial court erred in dismissing their complaint. We disagree.
“ ‘Res judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction.’ “ Hill v. West, 189 N.C.App. 194, 197, 657 S.E.2d 698, 700 (2008) (citation omitted).
In order to successfully assert the doctrine of res judicata, a litigant must prove the following essential elements: (1) a final judgment on the merits in an earlier suit, (2) an identity of the causes of action in both the earlier and the later suit, and (3) an identity of the parties or their privies in the two suits.
Id. at 198, 657 S.E.2d at 700 (citation omitted).
There is no dispute that Plaintiffs' claims dismissed by the trial court were the same claims that Plaintiffs had previously asserted against Defendant in the district court action. The only question for this Court is whether the proceedings in the district court action operated as “a final judgment on the merits” of Plaintiffs' claims. As detailed supra, the district court entered an order dismissing Plaintiffs' claims pursuant to Rule 41(b), which provides, in pertinent part, as follows:
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.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this section. operates as an adjudication upon the merits ....
N.C. Gen. Stat § 1A–1, Rule 41(b) (emphasis added). It is well-established that a “ ‘[d]ismissal with prejudice pursuant to a Rule 41(b) motion is a judgment on the merits, subject to the usual rules of res judicata.’ “ C.F.R. Foods, Inc. v. Randolph Dev. Co., 107 N.C.App. 584, 588, 421 S.E.2d 386, 388 (1992) (citations omitted).
Plaintiffs insist that they voluntarily dismissed their claims against Defendant prior to the trial court's entry of the Rule 41(b) order and that, accordingly, Plaintiffs were permitted to later refile those claims in the superior court. This contention is meritless.
The procedure for obtaining a voluntary dismissal, as set forth in Rule 41(a) of the North Carolina Rules of Civil Procedure, requires that the notice of dismissal be filed “at any time before the plaintiff rests his case ... or ... by filing a stipulation of dismissal signed by all parties who have appeared in the action.” N.C. Gen. Stat § 1A–1, Rule 41(a)(1) (2011) (emphasis added). In the instant case, the record reveals that Judge Walczyk granted Defendant's motion to dismiss at the close of Plaintiffs' evidence, after Plaintiffs had rested their case and before Plaintiffs requested a voluntary dismissal; and there is no indication that the parties stipulated to a voluntary dismissal.
Plaintiffs' argument that they noticed their voluntary dismissal prior to the time that Judge Walczyk's order of dismissal was entered is without merit. While it is true that an order is not entered until it is “reduced to writing, signed by the judge, and filed with the clerk of court[,]” Abels v. Renfro Corp., 126 N.C.App. 800, 803, 486 S.E.2d 735, 738 (1997) (citing N.C. Gen.Stat. § 1A–1, Rule 58), this contention completely ignores the fact that Plaintiffs rested their case before seeking a voluntary dismissal. Further, we note that the time stamps reflect that Judge Walczyk's dismissal order was filed with the clerk's office one minute prior to the filing of Plaintiff's “RULE 41(B)(6) VOLUNTARY DISMISSAL.”
Accordingly, we conclude that Judge Walczyk's order “operate[d] as an adjudication upon the merits” of Plaintiffs' claims. See N.C. Gen. Stat § 1A–1, Rule 41(b). Plaintiffs were thus barred from subsequently bringing these same claims against Defendant in the superior court. Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis, 86 N.C.App. 51, 55, 356 S.E.2d 372, 375 (1987); Barnes v. McGee, 21 N.C.App. 287, 289, 204 S.E.2d 203, 205 (1974). For these reasons, we hold that the superior court correctly dismissed Plaintiffs' complaint.
AFFIRMED. Judges ELMORE and GEER concur.
Report per Rule 30(e).