Danielson v. Cummings

7 Citing cases

  1. Cassidy v. Cheek

    308 N.C. 670 (N.C. 1983)   Cited 7 times
    Holding that "[a]lthough written notice of dismissal was filed, the effective date of the dismissal for statute of limitations purposes is the date the dismissal was announced in open court,"

    Because the order of 14 December 1979 did not dismiss plaintiff's action against Moore, plaintiff had the right to take a voluntary dismissal on 7 January 1980 before the trial judge ruled upon defendant Moore's motion to dismiss. The record does not indicate that the trial court ruled upon defendant's motion to dismiss at the January term. The clerk's minutes show that plaintiff's counsel took a voluntary dismissal in open court on 7 January 1980. Thereafter, written notice of the taking of the dismissal was filed on 9 January 1980. Although written notice of dismissal was filed, the effective date of the dismissal for statute of limitations purposes is the date the dismissal was announced in open court, 7 January 1980. Danielson v. Cummings, 43 N.C. App. 546, 259 S.E.2d 332 (1979), aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980). The subsequent reinstitution of plaintiff's suit on 6 January 1981 was within one year after the date of the dismissal, 7 January 1980, and therefore within the statutory period.

  2. Danielson v. Cummings

    300 N.C. 175 (N.C. 1980)   Cited 24 times
    Holding that "when parties confront each other face-to-face in a properly convened session of court where a written record is kept of all proceedings, . . . oral notice of dismissal is clearly adequate, and fully satisfies the 'filing' requirements of Rule 41"

    Rules of Civil Procedure 41.1 — voluntary dismissal announced in open court — one year to bring new action — when year begins to run When a case has proceeded to trial and both parties are present in court, the one year period in which a plaintiff is allowed to reinstitute a suit from a Rule 41 (a)(i) voluntary dismissal begins to run from the time of oral notice of voluntary dismissal given in open court, not from the time written notice is filed with the clerk of court. PLAINTIFF appeals as a matter of right from a decision of the Court of Appeals, one judge dissenting, affirming summary judgment for defendants entered by Kivett, Judge, on 5 December 1978 in Superior Court, GUILFORD County. The Court of Appeals' decision is reported at 43 N.C. App. 546, 259 S.E.2d 332 (1979). Charles A. Lloyd for plaintiff appellant.

  3. Price v. Price

    2022 NCCOA 928 (N.C. Ct. App. 2022)

    For example, in Danielson v. Cummings, this Court held that no written notice of dismissal was required to effectuate adequate notice to the opposing party where the dismissal was announced in open court. 43 N.C.App. 546, 547[] . . . (1979), judgment aff'd, 300 N.C. 175[] . . . (1980)

  4. Hill v. Hill

    261 N.C. App. 600 (N.C. Ct. App. 2018)   Cited 7 times

    But many cases refer to the dates when various types of actions or proceedings were instituted, and invariably, the cases use the date when a pleading or motion bringing a claim or seeking a particular type of relief was filed with the court as the date of the "institution of the action or proceeding." N.C. Gen. Stat. § 50-13.6 ; see, e.g. ; Danielson v. Cummings , 43 N.C. App. 546, 546, 259 S.E.2d 332, 332 (1979) ("Plaintiff instituted this action on 15 February 1978 alleging he was injured by the negligence of the defendants in an automobile collision in the city of Greensboro."), aff'd , 300 N.C. 175, 265 S.E.2d 161 (1980). Black's Law Dictionary defines the verb "institute" as "to begin or start; commence."

  5. Baker v. Speedway Motorsports, Inc.

    173 N.C. App. 254 (N.C. Ct. App. 2005)   Cited 18 times
    Holding sanctions were proper because plaintiff failed to comply with court order compelling discovery

    Furthermore, paragraph four of the decretal portion of the written order merely requires production of documents and information that Mrs. Hepler already should have produced pursuant to previous orders entered by Judge Spainhour.         We are unpersuaded that the circumstances surrounding the filing of Judge Spainhour's 22 April 2004 order in any way excused Mrs. Hepler from complying with Judge Spainhour's prior rulings in open court and previously entered CMOs. SeeState v. Smith, 320 N.C. 404, 415-16, 358 S.E.2d 329, 335 (1987) (affirming order where the trial court "passed on each part of [a corresponding] motion ... in open court as it was argued and later reduced its ruling to writing, signed the order, and filed it with the clerk"); Danielson v. Cummings, 43 N.C.App. 546, 547-48, 259 S.E.2d 332, 333 (1979) ("The law is not so impractical as to require written notice of legal action to effectuate such action when the parties already have actual notice of the action taken from the proceedings in open court."), aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980).         The corresponding assignments of error are overruled.

  6. Anderson v. Lackey

    593 S.E.2d 87 (N.C. Ct. App. 2004)   Cited 3 times
    In Anderson, the plaintiff argued she received notice of the hearing, but "did not receive notice that the hearing would review possible visitation changes."

    Randleman v. Hinshaw, 267 N.C. 136, 140, 147 S.E.2d 902, 905 (1966) (citations omitted). Furthermore, in Danielson v. Cummings, this Court held that no written notice of a motion was required to effectuate adequate notice to the opposing party where the motion was announced in open court. 43 N.C. App. 546, 547, 259 S.E.2d 332, 333 (1979), judgment aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980). In the appeal herein, defendant's Motion For Contempt And Motion For Judicial Assistance states that "defendant hereby moves the Court . . . for an order finding and holding Plaintiff in civil contempt of Court for her disobedience and failure to comply with the provisions of prior orders entered in this case.

  7. Trivette v. Trivette

    162 N.C. App. 55 (N.C. Ct. App. 2004)   Cited 31 times
    Noting the contempt proceeding was initiated by a motion and notice of hearing by an aggrieved party and not by order or notice from the court, "there is no basis to shift the burden of proof to the alleged contemnor in this case."

    Wood v. Wood, 297 N.C. 1, 6, 252 S.E.2d 799, 802 (1979). For example, in Danielson v. Cummings, this Court held that no written notice of dismissal was required to effectuate adequate notice to the opposing party where the dismissal was announced in open court. 43 N.C. App. 546, 547, 259 S.E.2d 332, 333 (1979), judgment aff'd, 300 N.C. 175, 265 S.E.2d 161 (1980). However, we have held that this rule can bend when necessary to "embrace common sense and fundamental fairness."