{
  "id": 8520497,
  "name": "STEVEN RICHARD FURR, Plaintiff v. JAN BRUCE NOLAND and JAMES S. NOLAND, Defendants",
  "name_abbreviation": "Furr v. Noland",
  "decision_date": "1991-06-18",
  "docket_number": "No. 9026SC1167",
  "first_page": "279",
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  "last_updated": "2023-07-14T17:27:13.805826+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges ORR and WYNN concur."
    ],
    "parties": [
      "STEVEN RICHARD FURR, Plaintiff v. JAN BRUCE NOLAND and JAMES S. NOLAND, Defendants"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nThe sole issue presented on appeal is whether plaintiff may maintain this action on a claim which was a compulsory counterclaim in a prior lawsuit and on which plaintiff took a voluntary dismissal. We hold that N.C. Gen. Stat. \u00a7 1A-1, Rule 13(a) (1990) controls, and we affirm the trial court\u2019s dismissal of the present action.\nOn 25 June 1986, Steven Furr was operating a truck which collided into a truck operated by Jan Noland. The truck operated by Jan Noland was owned by James Noland; the truck operated by Furr was owned by Frederickson Motor Express Corporation. On 16 May 1987 in Mecklenburg Superior Court, the Nolands filed suit against Furr and Frederickson for personal injuries which allegedly resulted from the collision. Furr (plaintiff in the present action) filed a counterclaim for his injuries. On 3 April 1989, Furr took a voluntary dismissal of his counterclaim. On 13 June 1989, a Mecklenburg County jury found that the Nolands were not injured as a result of the negligence of Furr and awarded no damages to the Nolands.\nOn 27 March 1990, Furr filed a claim in Mecklenburg County Superior Court against the Nolands for injuries arising out of the collision of 25 June 1986. Furr also asserted claims against Allstate Insurance Company and Michigan Mutual Insurance Company. All three defendants filed N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990) motions to dismiss plaintiff\u2019s lawsuit. At the hearing on the defendants\u2019 motions, the trial court considered matters outside of the pleadings and granted summary judgment in favor of the defendants. Plaintiff appeals.\nDefendants maintain that the trial court properly dismissed plaintiff\u2019s claim because the claim was a compulsory counterclaim which should have been asserted and litigated in the prior lawsuit between the parties. We agree. N.C. Gen. Stat. \u00a7 1A-1, Rule 13(a) provides:\nA pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party\u2019s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.\nIn the present case, there is no dispute that the claim which plaintiff is now asserting arose out of same occurrence which was the subject of the 16 May 1987 lawsuit. Plaintiff acknowledges that his current suit is based on what was a compulsory counterclaim in the prior lawsuit. Plaintiff contends, however, that under N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (1990), he is allowed to maintain a new action on his compulsory counterclaim. We disagree.\nRule 41(a) provides that \u201c[i]f an action commenced within the time prescribed therefor ... is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal . . . .\u201d Rule 41(c) makes the provisions of subsection (a) applicable to the \u201cdismissal of any counterclaim.\u201d Rule 41 makes no distinction between permissive and compulsory counterclaims; however, we recognize that one exists. Rule 13 requires a party to assert as a counterclaim any claim arising out of the same transaction or occurrence as the pending action, \u201cat peril of being barred\u201d from asserting the claim in a later action. Comment, N.C. Gen. Stat. \u00a7 1A-1, Rule 13 (1990). The doctrine of res judicata operates to bar subsequent action on the same claim which the plaintiff had the opportunity to litigate as a counterclaim in the prior action. Painter v. Board of Educ., 288 N.C. 165, 217 S.E.2d 650 (1975). Rule 13 and the doctrine of res judicata would be completely undermined if parties were allowed to voluntarily dismiss and then later refile compulsory counterclaims. The judicial economy promoted by Rule 13 would be lost. See Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978).\nOur result is supported by the statutory construction doctrine that where two statutory provisions conflict, one of which is specific or \u201cparticular\u201d and the other \u201cgeneral,\u201d the more specific statute controls in resolving any apparent conflict. North Carolina ex rel. Utilities Commission v. Union Elec. Membership Corp., 3 N.C. App. 309, 314, 164 S.E.2d 889, 892 (1968).\nWe hold plaintiff may not now maintain a separate action on a compulsory counterclaim in the prior action.\nAffirmed.\nJudges ORR and WYNN concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Karro, Sellers, Langson and Gorelick, by Seth H. Langson, for plaintiff appellant.",
      "Golding, Meekins, Holden, Gosper and Stiles, by Terry D. Horne, for Jan Bruce Noland and James S. Noland, defendants appellees; McClure and Contrivo, P.A., by Frank J. Contrivo, for Allstate Insurance Company; and Parker, Poe, Adams and Bernstein, by David N. Allen, for Michigan Mutual Insurance Company."
    ],
    "corrections": "",
    "head_matter": "STEVEN RICHARD FURR, Plaintiff v. JAN BRUCE NOLAND and JAMES S. NOLAND, Defendants\nNo. 9026SC1167\n(Filed 18 June 1991)\nRules of Civil Procedure \u00a7 13 (NCI3d)\u2014 compulsory counterclaim\u2014 voluntarily dismissed \u2014barred\nThe trial court properly dismissed a claim arising from a truck accident where the Nolands initially filed suit against Furr for personal injuries; Furr filed a counterclaim for his injuries; Furr took a voluntary dismissal of his counterclaim on 3 April 1989; a jury found that the Nolands were not injured as a result of the negligence of Furr; Furr filed a claim against the Nolands and two insurance companies for his injuries on 27 March 1990; and the trial court granted summary judgment for defendants. There is no dispute that the claim now asserted arose out of the same occurrence which was the subject of the original lawsuit and plaintiff acknowledges that his current suit is based on what was a compulsory counterclaim in the prior lawsuit. Although N.C.G.S. \u00a7 1A-1, Rule 41 makes no distinction between permissive and compulsory counterclaims, the court recognizes that one exists.\nAm Jur 2d, Judgments \u00a7\u00a7 430, 434, 436, 492.\nAPPEAL by plaintiff from order of Judge Raymond A. Warren entered 24 August 1990 in MECKLENBURG County Superior Court. Heard in the Court of Appeals 16 May 1991.\nKarro, Sellers, Langson and Gorelick, by Seth H. Langson, for plaintiff appellant.\nGolding, Meekins, Holden, Gosper and Stiles, by Terry D. Horne, for Jan Bruce Noland and James S. Noland, defendants appellees; McClure and Contrivo, P.A., by Frank J. Contrivo, for Allstate Insurance Company; and Parker, Poe, Adams and Bernstein, by David N. Allen, for Michigan Mutual Insurance Company."
  },
  "file_name": "0279-01",
  "first_page_order": 309,
  "last_page_order": 311
}