{ "id": 9251901, "name": "ANGELA G. WILLIAMS, Plaintiff v. WAYNE E. POLAND and NASH-ROCKY MOUNT BOARD OF EDUCATION, Defendants", "name_abbreviation": "Williams v. Poland", "decision_date": "2002-12-17", "docket_number": "No. COA02-353", "first_page": "709", "last_page": "713", "citations": [ { "type": "official", "cite": "154 N.C. App. 709" } ], "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": "412 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508834 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0644-01" ] }, { "cite": "380 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527650 ], "year": 1989, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0594-01" ] }, { "cite": "221 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566827 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0109-01" ] }, { "cite": "210 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551233 ], "year": 1975, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0373-01" ] }, { "cite": "528 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "351 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155921 ], "year": 2000, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0589-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "351 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "847", "parenthetical": "holding appeal from an order dismissing action without prejudice was properly before this Court" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167790 ], "year": 1987, "pin_cites": [ { "page": "136", "parenthetical": "holding appeal from an order dismissing action without prejudice was properly before this Court" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0135-01" ] }, { "cite": "196 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "286", "parenthetical": "the plaintiffs voluntary dismissal of a prior action \"was a final termination of that action and ... no valid order could be made thereafter in that cause\"" } ], "opinion_index": 1 }, { "cite": "18 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547090 ], "year": 1973, "pin_cites": [ { "page": "50", "parenthetical": "the plaintiffs voluntary dismissal of a prior action \"was a final termination of that action and ... no valid order could be made thereafter in that cause\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/18/0045-01" ] }, { "cite": "314 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "818", "parenthetical": "\"[i]t is well established that where [the] plaintiff takes a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(1), no suit is pending thereafter on which the court could make a final order\"" } ], "opinion_index": 1 }, { "cite": "68 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526700 ], "year": 1984, "pin_cites": [ { "page": "78", "parenthetical": "\"[i]t is well established that where [the] plaintiff takes a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(1), no suit is pending thereafter on which the court could make a final order\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/68/0074-01" ] }, { "cite": "299 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "779", "parenthetical": "a ruling is interlocutory if it \"directs some further proceeding preliminary to final decree\"" } ], "opinion_index": 1 }, { "cite": "60 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520808 ], "year": 1983, "pin_cites": [ { "page": "333", "parenthetical": "a ruling is interlocutory if it \"directs some further proceeding preliminary to final decree\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/60/0331-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 1 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 1, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 478, "char_count": 8757, "ocr_confidence": 0.719, "pagerank": { "raw": 6.548570569702441e-08, "percentile": 0.40148672760458237 }, "sha256": "31737ba8674fb86216dd9a889e2067e3901058ab8ff2f25e95b070367e63abc7", "simhash": "1:0fe8c27251a480d6", "word_count": 1425 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN concurs.", "Judge GREENE concurs with separate opinion." ], "parties": [ "ANGELA G. WILLIAMS, Plaintiff v. WAYNE E. POLAND and NASH-ROCKY MOUNT BOARD OF EDUCATION, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nWayne E. Poland and the Nash-Rocky Mount Board of Education (\u201cdefendants\u201d) appeal from an order allowing Angela G. Williams (\u201cplaintiff\u2019) to take a voluntary dismissal of her case against defendants without prejudice.\nThe evidence tends to show the following. Plaintiff was involved in an automobile collision with defendant Poland on 25 April 2000. Poland was an employee of the Nash-Rocky Mount Board of Education (\u201cBoard\u201d). Plaintiff alleges that Poland was acting within the scope of his employment when he negligently caused the collision that resulted in injuries to plaintiff. Plaintiff contends that defendant Poland failed to stop his vehicle despite a steady red traffic light in Poland\u2019s direction. G.S. \u00a7 20-158(b)(2) (2001). As a result of the collision, plaintiff was injured and her car was damaged.\nPlaintiff\u2019s complaint was served on both defendants on 6 June 2001. Defendants\u2019 answer was filed on 29 June 2001. The answer contained three pre-answer motions to dismiss as a result of lack of subject matter jurisdiction, lack of jurisdiction over the person, and failure to state a claim upon which relief can be granted. G.S. \u00a7 1A-1, Rule 12(b)(1), (b)(2), and (b)(6) (2001). Additionally, defendants\u2019 answer pled the defenses of governmental immunity and contributory negligence by plaintiff. Defendants then amended their pre-answer motions to move for dismissal as a result of lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted, based upon defendants\u2019 claim of governmental immunity. Plaintiff requested a hearing on her motion to amend the complaint as a result of defendants\u2019 amended motions to dismiss. The trial court dismissed plaintiff\u2019s case with prejudice before hearing plaintiffs motion to amend and defendants\u2019 motion to dismiss. Plaintiff requested a dismissal without prejudice but the trial court denied that request.\nPlaintiff moved for relief pursuant to G.S. \u00a7 1A-1, Rule 60. The trial court reversed its previous order of dismissal with prejudice and granted plaintiff\u2019s motion for voluntary dismissal without prejudice. From this order, defendants appeal. After careful review of the record and briefs, we affirm.\nAn interlocutory order is defined as \u201cone made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). \u201cAn appeal does not lie . . . from an interlocutory order of the Superior Court, unless such order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\u201d Veazey, 231 N.C. at 362, 57 S.E.2d at 381. Assuming, arguendo, that the case here is an interlocutory appeal, we elect to consider the appeal by granting appellant\u2019s petition for writ of certiorari according to N.C.R. App. P. 21(a)(1). See N.C.R. App. P. 21 (a)(1). (\u201cThe writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review . . . when no right of appeal from an interlocutory order exists.\u201d)\nDefendants contend that the trial court committed reversible error by allowing the plaintiff to enter a voluntary dismissal without prejudice. We disagree.\nRule 41(a) of the North Carolina Rules of Civil Procedure allows a plaintiff to voluntarily dismiss her own lawsuit without prejudice. G.S. \u00a7 1A-1, Rule 41(a) (2001). Our Supreme Court held that the only limitations on use of the voluntary dismissal are \u201cthat the dismissal not be done in bad faith and that it be done prior to a trial court\u2019s ruling dismissing plaintiff\u2019s claim or otherwise ruling against the party at any time prior to plaintiff resting his or her case.\u201d Brisson v. Santoriello, 351 N.C. 589, 597, 528 S.E.2d 568, 573 (2000). In addition, \u201ca plaintiff may not dismiss his action by filing Notice of Dismissal if to do so would defeat the rights of a defendant who has theretofore asserted some ground for affirmative relief.\u201d McCarley v. McCarley, 24 N.C. App. 373, 376, 210 S.E.2d 531, 533 (1975), modified on other grounds, 289 N.C. 109, 221 S.E.2d 490 (1976).\nDefendants contend that their assertion of a Rule 12(b)(6) motion constitutes a ground for affirmative relief that prevents plaintiff from entering a voluntary dismissal without prejudice. We disagree. A request for affirmative relief has been defined by this Court as \u201crelief for which defendant might maintain an action independently of plaintiffs claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it.\u201d Kohn v. Mug-A-Bug, 94 N.C. App. 594, 596, 380 S.E.2d 548, 550 (1989), overruled on other grounds, Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992). Here, the Rule 12(b)(6) motion to dismiss by defendants cannot survive independently without the plaintiff\u2019s underlying claim. Therefore, the Rule 12(b)(6) motion to dismiss is not a request for affirmative relief that cancels plaintiff\u2019s ability to voluntarily dismiss her case without prejudice. This assignment of error is overruled.\nWe hold that the trial court properly granted plaintiff\u2019s motion for dismissal without prejudice. In addition, we deny defendants\u2019 motion for extension of time to file the settled record on appeal. We also deny plaintiff\u2019s motion to dismiss defendants\u2019 appeal as interlocutory.\nAffirmed.\nJudge MARTIN concurs.\nJudge GREENE concurs with separate opinion.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "GREENE, Judge,\nconcurring.\nI agree with the majority as to merits of defendants\u2019 appeal. I write separately, however, to point out that defendants did not appeal from an interlocutory order and, therefore, a writ of certiorari is not necessary to hear this appeal.\nAs stated by the majority, \u201c[a]n interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950); see also Blackwelder v. Dept. of Hum. Res., 60 N.C. App. 331, 333, 299 S.E.2d 777, 779 (1983) (a ruling is interlocutory if it \u201cdirects some further proceeding preliminary to final decree\u201d). When a case is dismissed, with or without prejudice, no further action is required of the trial court in order to settle or determine the controversy between the parties. See Ward v. Taylor, 68 N.C. App. 74, 78, 314 S.E.2d 814, 818 (1984) (\u201c[i]t is well established that where [the] plaintiff takes a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(1), no suit is pending thereafter on which the court could make a final order\u201d); Collins v. Collins, 18 N.C. App. 45, 50, 196 S.E.2d 282, 286 (1973) (the plaintiffs voluntary dismissal of a prior action \u201cwas a final termination of that action and ... no valid order could be made thereafter in that cause\u201d). Accordingly, the trial court\u2019s order dismissing plaintiff\u2019s case without prejudice is not interlocutory and defendants have a right to appeal from this order. See Miller v. Ferree, 84 N.C. App. 135, 136, 351 S.E.2d 845, 847 (1987) (holding appeal from an order dismissing action without prejudice was properly before this Court).", "type": "concurrence", "author": "GREENE, Judge," } ], "attorneys": [ "Kellum Law Firm, by Douglas B. Johnson, for plaintiff-appellee.", "Valentine, Adams & Lamar, L.L.P., by L. Wardlaw Lamar and Lewis W. Lamar, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "ANGELA G. WILLIAMS, Plaintiff v. WAYNE E. POLAND and NASH-ROCKY MOUNT BOARD OF EDUCATION, Defendants\nNo. COA02-353\n(Filed 17 December 2002)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 writ of certiorari\nAssuming arguendo that this appeal from the grant of plaintiff\u2019s motion for voluntary dismissal without prejudice is an appeal from an interlocutory order, the Court of Appeals elects to consider the appeal by granting appellant\u2019s petition for writ of certiorari under N.C. R. App. P. 21(a)(1).\n2. Civil Procedure\u2014 Rule 41(a) motion to dismiss without prejudice \u2014 Rule 12(b)(6) motion to dismiss\nThe trial court did not err in an action arising out of an automobile accident by granting plaintiff\u2019s motion to dismiss without prejudice under N.C.G.S. \u00a7 1A-1, Rule 41(a), because defendants\u2019 N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss was not a request for affirmative relief that cancelled plaintiffs ability to voluntarily dismiss her case without prejudice.\nJudge Greene concurring in a separate opinion.\nAppeal by defendants from order entered 3 October 2001 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 12 November 2002.\nKellum Law Firm, by Douglas B. Johnson, for plaintiff-appellee.\nValentine, Adams & Lamar, L.L.P., by L. Wardlaw Lamar and Lewis W. Lamar, Jr., for defendant-appellants." }, "file_name": "0709-01", "first_page_order": 737, "last_page_order": 741 }