{
  "id": 8521028,
  "name": "CARL DEWEY JOHNSON, SR. v. RONALD JAMES HUTCHENS and NANCY VERNON HUTCHENS",
  "name_abbreviation": "Johnson v. Hutchens",
  "decision_date": "1991-07-02",
  "docket_number": "No. 9018SC1148",
  "first_page": "384",
  "last_page": "386",
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    "name": "N.C."
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      "year": 1980,
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      "cite": "300 N.C. 175",
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      "reporter": "N.C.",
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      "pin_cites": [
        {
          "parenthetical": "repealed by Session Laws 1967"
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  "last_updated": "2023-07-14T17:27:13.805826+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Wells and Phillips concur."
    ],
    "parties": [
      "CARL DEWEY JOHNSON, SR. v. RONALD JAMES HUTCHENS and NANCY VERNON HUTCHENS"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nPlaintiff contends the trial court erred in granting defendant\u2019s motion to dismiss based on plaintiff\u2019s failure to commence a new action within one year of a voluntary dismissal. We agree.\nThe issue presented is on what date did the one year period begin in which plaintiff could reinstitute suit following the dismissal. N.C.R. Civ. P. 41(a)(l)(i). Defendant argues that the one year period began on 8 May 1987. On this date plaintiff\u2019s attorney called the office of defendant\u2019s attorney and left a message that plaintiff was taking a dismissal in the action. He also mailed defendant\u2019s attorney a copy of the dismissal dated 8 May 1987. Plaintiff contends the time period began running after the clerk of court received and stamped the written notice of dismissal as filed on 11 May 1987.\nRule 41(a)(l)(i) allows a plaintiff to dismiss an action or any claim \u201cat any time before the plaintiff rests his case[.]\u201d N.C.R. Civ. P. 41(a)(l)(i) (emphasis added). The former practice of allowing voluntary dismissals at any time before the verdict under N.C. Gen. Stat. \u00a7 1-25 (repealed by Session Laws 1967) influenced North Carolina\u2019s adoption of Rule 41. W.A. Shuford, North Carolina Civil Practice and Procedure, \u00a7 41-4 (2d ed. 1981).\nThis influence prompted our Supreme Court to note \u201cthe very strong tradition in this State equating oral notice in open court with written notice filed with the clerk.\u201d Danielson v. Cummings, 300 N.C. 175, 179, 265 S.E.2d 161, 163 (1980). Based upon this past practice the Supreme Court found oral notice of voluntary dismissal in open court \u201cis clearly adequate, and fully satisfies the \u2018filing\u2019 requirements of Rule 41(a)[(l)](i).\u201d Id.\nDespite language in Gillikin v. Pierce, 98 N.C. App. 484, 391 S.E.2d 198, review denied, 327 N.C. 427, 395 S.E.2d 677 (1990), which could be read as suggesting otherwise, no means other than oral notice in open court have been allowed to substitute for the filing requirements of Rule 41(a)(l)(i). Contact with defendant\u2019s attorney by telephone or mail concerning voluntary dismissal does not satisfy the filing requirement of Rule 41(a)(l)(i). Voluntary dismissal without prejudice of the action below occurred when written notice was received and filed by the clerk of court on 11 May 1987.\nRule 41(a)(1) allows a new action based on the same claim to \u201cbe commenced within one year after such dismissal\u201d unless a shorter time is specified. Plaintiff commenced a new action based on the same claim on 11 May 1988. \u201cIn computing any period of time prescribed or allowed by these rules, . . . the day of the act . . . after which the designated period of time begins to run is not to be included.\u201d N.C.R. Civ. P. 6(a). The trial court erred in dismissing plaintiffs action based upon its erroneous holding that plaintiff had failed to commence a new action within one year after the dismissal of the prior action.\nReversed.\nJudges Wells and Phillips concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Max D. Ballinger for plaintiff-appellant.",
      "Henson Henson Bayliss & Sue, by Perry C. Henson and Lyn K. Broom, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CARL DEWEY JOHNSON, SR. v. RONALD JAMES HUTCHENS and NANCY VERNON HUTCHENS\nNo. 9018SC1148\n(Filed 2 July 1991)\nRules of Civil Procedure \u00a7 41 (NCI3d)\u2014 time of voluntary dismissal \u2014 reinstitution of action within one year\nVoluntary dismissal without prejudice of plaintiff\u2019s original action occurred when written notice was received and filed by the clerk on 11 May 1987, not when plaintiff\u2019s attorney called the office of defendant\u2019s attorney on 8 May 1987 and left a message that plaintiff was taking a voluntary dismissal or when plaintiff\u2019s attorney mailed defendant\u2019s attorney a copy of the dismissal dated 8 May 1987. Therefore, a new action filed by plaintiff on 11 May 1988 was filed within one year after the voluntary dismissal as permitted by N.C.G.S. \u00a7 1A-1, Rule 41(a)(l)(i).\nAm Jur 2d, Dismissal, Discontinuance, and Nonsuit \u00a7\u00a7 33, 35, 36; Limitation of Actions \u00a7 311.\nAPPEAL by plaintiff from judgment entered 23 July 1990 by Judge Preston Cornelius in GUILFORD County Superior Court. Heard in the Court of Appeals 15 May 1991.\nPlaintiff filed a complaint on 9 May 1986 against defendant Ronald Hutchens for injuries resulting from an automobile collision of 17 November 1983. Plaintiff took a voluntary dismissal of the 1986 action without prejudice. A new complaint filed by plaintiff on 11 May 1988 named Ronald Hutchens and Nancy Hutchens as defendants. The trial court dismissed the actions against both defendants on 23 July 1990. From the judgment dismissing defendant Ronald Hutchens, plaintiff appeals.\nMax D. Ballinger for plaintiff-appellant.\nHenson Henson Bayliss & Sue, by Perry C. Henson and Lyn K. Broom, for defendant-appellee."
  },
  "file_name": "0384-01",
  "first_page_order": 414,
  "last_page_order": 416
}