{ "id": 11143444, "name": "ALBERT H. SCHNITZLEIN, Plaintiff-Appellant v. HARDEE'S FOOD SYSTEMS, INC., CKE RESTAURANTS, INC., Defendant-Appellees", "name_abbreviation": "Schnitzlein v. Hardee's Food Systems, Inc.", "decision_date": "1999-07-06", "docket_number": "No. COA98-1266", "first_page": "153", "last_page": "158", "citations": [ { "type": "official", "cite": "134 N.C. App. 153" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "248 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "432-33" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555242 ], "year": 1978, "pin_cites": [ { "page": "591-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0588-01" ] }, { "cite": "424 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504192, 2505283, 2505477, 2505902, 2505586 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0667-05", "/nc/332/0667-01", "/nc/332/0667-03", "/nc/332/0667-04", "/nc/332/0667-02" ] }, { "cite": "420 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527690 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0455-01" ] }, { "cite": "468 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "449", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 728", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920050 ], "year": 1996, "pin_cites": [ { "page": "731", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0728-01" ] }, { "cite": "286 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "653" }, { "page": "653" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 608", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527709 ], "year": 1982, "pin_cites": [ { "page": "610-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0608-01" ] }, { "cite": "417 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313235 ], "year": 1992, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0691-01" ] }, { "cite": "464 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "83", "parenthetical": "citation omitted" }, { "page": "83" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917804 ], "year": 1995, "pin_cites": [ { "page": "726", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0720-01" ] }, { "cite": "493 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551138, 551077, 551207, 551251, 551284 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0263-05", "/nc/347/0263-03", "/nc/347/0263-02", "/nc/347/0263-04", "/nc/347/0263-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "737-38" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "year": 1997, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "29 U.S.C. \u00a7 1001", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 512, "char_count": 11057, "ocr_confidence": 0.76, "pagerank": { "raw": 2.1795904411690524e-07, "percentile": 0.7721515810381223 }, "sha256": "e898e1cb05dec18a6f5b3d53664ac8514e46bffc9b1733b2984d819edef0c269", "simhash": "1:1d2ad07e3c4f8e7e", "word_count": 1834 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and EDMUNDS concur." ], "parties": [ "ALBERT H. SCHNITZLEIN, Plaintiff-Appellant v. HARDEE\u2019S FOOD SYSTEMS, INC., CKE RESTAURANTS, INC., Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant Hardee\u2019s Food Systems, Inc., (Hardee\u2019s) hired plaintiff Albert H. Schnitzlein as executive vice president of operations in April 1997. The \u201cofficer compensation and benefits summary\u201d provided in writing by Hardee\u2019s to plaintiff included a paragraph with the heading \u201cjob security.\u201d The paragraph stated: \u201cShould Hardee\u2019s decide to terminate you for any reason, other than gross misconduct, you will receive twenty-four (24) months of severance pay and executive outplacement services.\u201d\nMeanwhile, in early 1997, defendant CKE Restaurants, Inc., (CKE) began negotiating with Imasco Holdings, Inc., Hardee\u2019s parent corporation, for the sale of Hardee\u2019s to CKE. CKE purchased all of Hardee\u2019s capital stock from Imasco in July 1997. The purchase agreement provided that CKE would continue employee severance plans that were in place at the time of the sale of Hardee\u2019s to CKE.\nA number of Hardee\u2019s officers and other employees lost their jobs as of the date of the sale to CKE, but plaintiff was asked to continue in his position. CKE fired plaintiff in September 1997 and refused to pay him severance benefits.\nPlaintiff filed suit in January 1998, seeking twenty-four months\u2019 salary and twenty-four months\u2019 outplacement services. Defendants filed a motion to dismiss in April 1998, arguing that plaintiff\u2019s claims were preempted by the provisions of the Employee Retirement Income Security Act, 29 U.S.C. \u00a7 1001 and related sections (ERISA). During a hearing on 10 June 1998 on defendants\u2019 motion to dismiss, plaintiff filed a motion to amend his complaint, stating it was his position that his claims arose under an individual contract with defendants, but that if the trial court determined that ERISA governed, plaintiff wanted to amend his complaint to add a cause of action asserting claims under ERISA. Along with his motion to amend, plaintiff presented the trial court with an amended complaint.\nOn 15 June 1998, the trial court notified defendants that it intended to grant defendants\u2019 motion to dismiss and asked defendants\u2019 counsel to draft an order. Plaintiff, meanwhile, on 16 June 1998 filed a voluntary dismissal pursuant to Rule 41(a)(l)(i) of the North Carolina Rules of Civil Procedure. On 19 June 1998, the trial court entered an order \u201ceffective June 15, 1988\u201d that dismissed plaintiff\u2019s complaint with prejudice pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Realizing that the reference to 1988 was an error, the trial court on 24 June 1998 filed an amended order, dismissing plaintiff\u2019s complaint with prejudice \u201ceffective June 15, 1998.\u201d Plaintiff appeals.\nPlaintiff assigns error to the trial court\u2019s dismissal of his complaint \u201ceffective June 15, 1998,\u201d arguing that plaintiff\u2019s voluntary dismissal filed on 16 June 1998 stripped the trial court of jurisdiction in the case.\nRule 41 of the North Carolina Rules of Civil Procedure provides in part: \u201c[A]n action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (1990).\nRule 58 of the North Carolina Rules of Civil Procedure states in part: \u201c[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 58 (Cum. Supp. 1998) (effective as to all judgments subject to entry on or after 1 October 1994). Likewise, \u201can order is entered \u2018when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u2019 \u201d Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737-38, disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997), citing N.C. Gen. Stat. \u00a7 1A-1, Rule 58.\nThe dates in the record before us indicate that plaintiffs voluntary dismissal was filed before the trial court\u2019s order granting defendants\u2019 motion to dismiss. However, our review does not end there. Defendants argue that plaintiff could not take a voluntary dismissal under Rule 41 once the hearing on defendants\u2019 motion to dismiss had ended. Defendants cite the Rule 41 language that a plaintiff may take a voluntary dismissal \u201cat any time before the plaintiff rests his case.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (emphasis added). Defendants contend that plaintiff rested his case at the close of the motion hearing on 10 June 1998 and therefore was not entitled thereafter to take a voluntary dismissal.\nWe now review pertinent statutes and case law:\n\u201cUnder the plain language of Rule 41(a)(1) ... a plaintiff is vested with the authority to dismiss any of its claims prior to close of its case-in-chief.\u201d Roberts v. Young, 120 N.C. App. 720, 726, 464 S.E.2d 78, 83 (1995) (citation omitted).\n\u201c \u2018Unless the court in its order for dismissal otherwise specifies,\u2019 a dismissal for failure to state a claim \u2018operates as an adjudication upon the merits.\u2019 \u201d Dawson v. Allstate Insurance Co., 106 N.C. App. 691, 692, 417 S.E.2d 841, 842 (1992), citing N.C.R. Civ. P. 41(b).\nIn Lowe v. Bryant and Lowe v. Bryant, 55 N.C. App. 608, 610-11, 286 S.E.2d 652, 653 (1982), our Court held that a plaintiff could take a Rule 41 voluntary dismissal after a motion hearing but before the judge had ruled where the \u201cdefendants\u2019 motion to dismiss dealt with the factual basis for their motion, not with the factual allegations upon which the plaintiffs based their action against the defendants.\u201d\nIn the case before us, defendants\u2019 motion to dismiss was based on their argument that plaintiff\u2019s claims were preempted by ERISA. Thus, defendants\u2019 motion \u201cdealt with the factual basis for their motion,\u201d not with the allegations that plaintiff set out in his complaint. Lowe at 610, 286 S.E.2d at 653. Plaintiff had not argued his \u201ccase-in-chief.\u201d Roberts at 726, 464 S.E.2d at 83.\nAlso, the record shows that during the hearing on defendants\u2019 motion to dismiss, plaintiff moved to amend his complaint. In the motion, plaintiff maintained his position that his claims arose under an individual contract with defendants, but said that if the trial court determined the claims were governed by ERISA, he wanted to amend his complaint to add a cause of action asserting ERISA claims. Therefore, even when the motion hearing ended, plaintiff had a motion to amend his complaint pending before the trial court that had not been ruled on by the trial court. This supports our conclusion that, in these particular circumstances, plaintiff had not rested his case.\nWe have also reviewed the case law as to when a motion to dismiss pursuant to Rule 12(b)(6) converts to a motion for summary judgment pursuant to Rule 56:\nIf, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]\nN.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (1990).\n\u201c[A] \u2018motion to dismiss for failure to state a claim is \u201cconverted to a Rule 56 motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court.\u201d \u2019 \u201d Rogerson v. Fitzpatrick, 121 N.C. App. 728, 731, 468 S.E.2d 447, 449 (1996) (citations omitted). See also Ryles v. Durham County Hospital Corp., 107 N.C. App. 455, 458, 420 S.E.2d 487, 489 (citations omitted), disc. review denied, 332 N.C. 667, 424 S.E.2d 406 (1992).\nWhere a party appears at a summary judgment hearing and produces evidence or is given an opportunity to produce evidence and fails to do so, and the question is submitted to the court for decision, he has \u201crested his case\u201d within the meaning of Rule 41(a)(l)(i) of the North Carolina Rules of Civil Procedure. He cannot thereafter take a voluntary dismissal under Rule 41(a)(l)(i). To rule otherwise would make a mockery of summary judgment proceedings.\nMaurice v. Motel Corp., 38 N.C. App. 588, 591-92, 248 S.E.2d 430, 432-33 (1978).\nIn the case at bar, at the hearing on defendants\u2019 motion to dismiss, the trial court had before it matters outside the pleadings. These matters included the letter in which Hardee\u2019s offered plaintiff employment, a written summary of benefits, a letter from plaintiff to CKE\u2019s chief operating officer, and an affidavit from Hardee\u2019s director of human resources. With materials such as these before the trial court, a 12(b)(6) motion for dismissal would, in many cases, convert to a summary judgment. On the facts before us, however, it does not. The distinction here is that, as noted above, defendants\u2019 motion to dismiss did not address the merits of the allegations set out in plaintiff\u2019s complaint. Defendants\u2019 motion went only to the question of whether plaintiff\u2019s claims are governed by ERISA. At no time has plaintiff had a hearing on the allegations set forth in his complaint. On these facts, to deny plaintiff an opportunity for hearing on the allegations in his complaint would prevent any consideration of plaintiff\u2019s case-in-chief.\nPlaintiff filed a timely voluntary dismissal under Rule 41(a)(l)(i). The trial court did not have jurisdiction to enter subsequent orders in the case. The orders of the trial court are vacated.\nVacated.\nJudges WALKER and EDMUNDS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Patterson, Harkavy & Lawrence, LLP, by Melinda Lawrence, for plaintiff-appellant.", "Smith Helms Mulliss & Moore, L.L.P, by Julie G. Theall and Shannon J. Adcock, for defendant-appellees." ], "corrections": "", "head_matter": "ALBERT H. SCHNITZLEIN, Plaintiff-Appellant v. HARDEE\u2019S FOOD SYSTEMS, INC., CKE RESTAURANTS, INC., Defendant-Appellees\nNo. COA98-1266\n(Filed 6 July 1999)\n1. Civil Procedure\u2014 voluntary dismissal \u2014 subsequent 12(b)(6) dismissal\nThe trial court did not have jurisdiction to enter subsequent orders in an employment termination case where the trial court had notified defendants that it intended to grant their motion to dismiss on 15 June 1998, plaintiff filed a voluntary dismissal on 16 June 1998, and the trial court entered an order on 19 June dismissing the complaint with prejudice pursuant to N.C.G.S.\u00a7 1A-1, Rule 12(b)(6). Although defendants contend that plaintiff rested his case at the close of the motion hearing on 10 June, defendants\u2019 motion to dismiss was based on their argument that plaintiffs claims were preempted by ERISA rather than on allegations set out in the complaint and plaintiff had not argued his case-in-chief. Moreover, plaintiff had a motion to amend his complaint pending when the motion hearing ended.\n2. Civil Procedure\u2014 summary judgment \u2014 motion to dismiss\u2014 matters outside the pleadings \u2014 motion based upon preemption by federal law\nA motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) was not converted to a summary judgment motion by matters outside the pleadings where the motion to dismiss did not address the merits of the allegations but went only to the question of whether plaintiffs claims were governed by ERISA.\nAppeal by plaintiff from orders entered 19 June 1998 and 24 June 1998 by Judge Robert L. Farmer in Wake County Superior Court. Heard in the Court of Appeals 20 May 1999.\nPatterson, Harkavy & Lawrence, LLP, by Melinda Lawrence, for plaintiff-appellant.\nSmith Helms Mulliss & Moore, L.L.P, by Julie G. Theall and Shannon J. Adcock, for defendant-appellees." }, "file_name": "0153-01", "first_page_order": 185, "last_page_order": 190 }