Opinion
No. COA11–1059.
2012-05-15
Angelene M. ARTIS, Plaintiff, v. Waylon WILLIFORD, Sam Losew, and Import Services, LLC, Defendants.
Angelene Mitchell Artis, pro se, plaintiff-appellant. No brief filed on behalf of defendants-appellees.
Appeal by plaintiff from order entered 14 July 2011 by Judge G. Galen Braddy in Pitt County District Court. Heard in the Court of Appeals 30 April 2012. Angelene Mitchell Artis, pro se, plaintiff-appellant. No brief filed on behalf of defendants-appellees.
GEER, Judge.
Plaintiff Angelene M. Artis appeals from an order granting the motion to dismiss of defendants Waylon Williford and Import Services, LLC. Because we find plaintiff took a voluntary dismissal without prejudice as to all defendants before the order of dismissal was filed, no action was pending for the trial court to dismiss. The court's order had no effect and therefore must be vacated.
Facts
Plaintiff alleged defendants worked on her car at her request in September and October 2008. According to plaintiff, during this time, defendants switched her 2.8L V6 engine with a worn out 3.6L V8 engine. Plaintiff filed a pro se complaint on 10 March 2011 against Import Services, LLC, Sam Losew, and Waylon Williford, seeking compensatory damages.
On 20 April 2011, defendants Waylon Williford and Import Services filed a motion to dismiss. The motion was heard on 1 July 2011. In an order signed 12 July 2011, the trial court dismissed plaintiff's complaint as to defendants Waylon Williford and Import Services pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. The order was not filed, however, until 14 July 2011.
On 13 July 2011, prior to the filing of the Rule 12(b)(6) order, plaintiff filed a Notice of Voluntary Dismissal of the action without prejudice pursuant to Rule 41(a) of the Rules of Civil Procedure. Plaintiff also filed a notice of appeal from the trial court's order entered 14 July 2011.
Discussion
This Court has explained:
Rule 41(a) of the North Carolina Rules of Civil Procedure allows a plaintiff to voluntarily dismiss her own lawsuit without prejudice. Our Supreme Court held that the only limitations on use of the voluntary dismissal are that the dismissal not be done in bad faith and that it be done prior to a trial court's ruling dismissing plaintiff's claim or otherwise ruling against the party at any time prior to plaintiff resting his or her case.
Williams v. Poland, 154 N.C.App. 709, 711, 573 S.E.2d 230, 232 (2002) (internal citation and quotation marks omitted).
In Schnitzlein v. Hardee's Food Sys., Inc., 134 N.C.App. 153, 156, 516 S.E.2d 891, 892 (1999), this Court addressed the effect of a voluntary dismissal filed after the court's oral granting of a motion to dismiss but before the filing of the order granting the motion to dismiss. After noting that an order is not entered until it is reduced to writing, signed by the judge, and filed with the court, id. at 155, 516 S.E.2d at 892, this Court held that the plaintiff's Rule 41(a) voluntary dismissal, filed prior to entry of the order dismissing the action, deprived the trial court of jurisdiction to enter any orders, including the dismissal order. Id. at 158, 516 S.E.2d at 893. The Court, therefore, vacated the dismissal order. Id.
Here, the trial court's order was not entered until 14 July 2011, when it was filed with the clerk of court, as evidenced by the file stamp on the face of the order. Since plaintiff filed her voluntary dismissal without prejudice on 13 July 2011, the trial court's order filed the next day is of no effect. After a plaintiff takes a voluntary dismissal, “no suit is pending thereafter on which the court could make a final order.” Ward v. Taylor, 68 N.C.App. 74, 78, 314 S.E.2d 814, 818 (1984). We, therefore, vacate the trial court's order granting the motion to dismiss.
Vacated. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).