{
  "id": 8527291,
  "name": "WILLIAM WESLEY, Individually, and MICHAEL WESLEY, A Minor Child, By and Through His Guardian Ad Litem, WILLIAM WESLEY v. SAMUEL BLAND and JOYCE ATKINSON BLAND",
  "name_abbreviation": "Wesley v. Bland",
  "decision_date": "1988-12-30",
  "docket_number": "No. 8814SC294",
  "first_page": "513",
  "last_page": "516",
  "citations": [
    {
      "type": "official",
      "cite": "92 N.C. App. 513"
    }
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  "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": "226 S.E. 2d 691",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
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    {
      "cite": "30 N.C. App. 244",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553488
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      "year": 1976,
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      "cite": "265 S.E. 2d 161",
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      "reporter": "S.E.2d",
      "year": 1980,
      "pin_cites": [
        {
          "page": "164"
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      ],
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    },
    {
      "cite": "300 N.C. 175",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560015
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      "year": 1980,
      "pin_cites": [
        {
          "page": "179-80"
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        "/nc/300/0175-01"
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    {
      "cite": "248 S.E. 2d 432",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "248 S.E. 2d 430",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
      "opinion_index": 0
    },
    {
      "cite": "38 N.C. App. 588",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555242
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      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/38/0588-01"
      ]
    }
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  "analysis": {
    "cardinality": 353,
    "char_count": 6555,
    "ocr_confidence": 0.83,
    "pagerank": {
      "raw": 1.5271591894794151e-07,
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    "sha256": "74804a65d7b23f3d14eccd6ad9ae43b9943acc041b394628177b0098f7ad5768",
    "simhash": "1:e8e0a37e2f3c8d1d",
    "word_count": 1089
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  "last_updated": "2023-07-14T21:55:11.858082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Greene and Smith concur."
    ],
    "parties": [
      "WILLIAM WESLEY, Individually, and MICHAEL WESLEY, A Minor Child, By and Through His Guardian Ad Litem, WILLIAM WESLEY v. SAMUEL BLAND and JOYCE ATKINSON BLAND"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nThe determinative issue on appeal is whether plaintiffs\u2019 motion for a voluntary dismissal was made in a timely manner. If the motion was timely, the trial court\u2019s order for summary judgment was improperly granted and plaintiffs are not barred from refiling the lawsuit within the one-year time limitation.\nG.S. 1A-1, Rule 41(a)(1) states \u201can 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\nThe intent of G.S. 1A-1, Rule 41(a)(1) is to allow a plaintiff who goes to court with insufficient evidence a chance to voluntarily dismiss his case and gather sufficient evidence to return to court. The plaintiff must take the voluntary dismissal before he rests his case so that the court\u2019s time is not wasted. See W. Shuford, N. C. Civil Practice and Procedure Sec. 4104 (1988).\nIn this case, dismissal was not taken in a timely fashion if the plaintiffs had \u201crested their case\u201d prior to the dismissal. The requirements of Rule 41 in regard to voluntary dismissals and the practicalities involved in taking a dismissal pursuant to the rule are clear when it comes to the actual trial of an action. The case may only be dismissed at trial \u201cbefore plaintiff rests his case.\u201d\nThe practical applicability of the rule pertaining to summary judgment is less clear. In Maurice v. Motel Corp., 38 N.C. App. 588, 248 S.E. 2d 430 (1978), the Court explained when a party has \u201crested his case\u201d in regard to a summary judgment hearing.\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 \u2018rested his case\u2019 within the meaning of Rule 41(a)(l)(i). ... He cannot thereafter take a voluntary dismissal under Rule 41(a)(l)(i). To rule otherwise would make a mockery of summary judgment proceedings.\nId. at 591-92, 248 S.E. 2d 432-33. This Court notes that on many occasions, however, the conduct of a summary judgment hearing in our trial courts is a fairly informal proceeding.\nIn the case sub judice, the record reflects that the plaintiffs submitted affidavits prior to the hearing as evidence in opposition to the summary judgment motion pursuant to G.S. 1A-1, Rule 56. The judgment states that the trial court \u201cheard argument of counsel for the defendants.\u201d When it was plaintiffs\u2019 attorney\u2019s turn to speak, he orally took a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(l)(i). It appears that prior to this plaintiffs\u2019 attorney had not been given an opportunity to present additional evidence or argue his clients\u2019 position. Therefore, under the test described in Maurice, we conclude that plaintiffs had not rested their case and the timing of plaintiffs\u2019 motion for a voluntary dismissal was proper under Rule 41.\nFor purposes of summary judgment motions, this Court holds that the record must show that plaintiff has been given the opportunity at the hearing to introduce any evidence relating to the motion and to argue his position. Having done so and submitted the matter to the Court for determination, plaintiff will then be deemed to have \u201crested his case\u201d for the purpose of summary judgment and will be precluded thereafter in dismissing his case pursuant to Rule 41 during the pendency of the summary judgment motion.\nThe manner of plaintiffs\u2019 motion was also proper under G.S. 1A-1, Rule 41(a)(1). A party may simply state in open court his intention for a voluntary dismissal and may subsequently file the dismissal. Danielson v. Cummings, 300 N.C. 175, 179-80, 265 S.E. 2d 161, 164 (1980).\nWe do not reach the issue concerning the trial court\u2019s ruling on the summary judgment motion. Once a motion for voluntary dismissal is given, there can be no further rulings on the case. Caroon v. Eubank, 30 N.C. App. 244, 226 S.E. 2d 691 (1976).\nThe summary judgment order is vacated and this case remanded for entry of plaintiffs\u2019 dismissal pursuant to Rule 41.\nVacated and remanded.\nJudges Greene and Smith concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Robert T. Perry, attorney for plaintiff-appellants.",
      "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by George W. Miller, Jr. and Sherry R. Dawson, attorneys for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "WILLIAM WESLEY, Individually, and MICHAEL WESLEY, A Minor Child, By and Through His Guardian Ad Litem, WILLIAM WESLEY v. SAMUEL BLAND and JOYCE ATKINSON BLAND\nNo. 8814SC294\n(Filed 30 December 1988)\nRules of Civil Procedure \u00a7 41.1\u2014 voluntary dismissal \u2014 time and manner of motion proper\nPlaintiffs had not rested their case, and the timing and manner of their motion for a voluntary dismissal was proper under N.C.G.S. \u00a7 1A-1, Rule 41(a)(1) where plaintiffs submitted affidavits in opposition to defendants\u2019 summary judgment motion prior to the hearing on the motion; the trial court heard argument of counsel for the defendants; when it was plaintiffs\u2019 attorney\u2019s turn to speak, he orally took a voluntary dismissal; and prior to this time, plaintiffs\u2019 attorney had not been given an opportunity to present additional evidence or argue his clients\u2019 position.\nAppeal by plaintiffs from Barnette, Judge. Judgment entered 10 November 1987 in Superior Court, DURHAM County. Heard in the Court of Appeals 28 September 1988.\nOn 16 December 1985, defendant, Joyce Atkinson Bland, was involved in a collision with plaintiff, Michael Wesley. Plaintiff, who was six years old at the time of the accident, was crossing Holloway Street in Durham on his way home from school when he was struck by an automobile driven by defendant.\nPlaintiffs father, William Wesley, in his individual capacity and in his capacity as guardian ad litem for Michael Wesley, brought a negligence suit against defendants. The suit was filed 10 December 1986.\nDefendants filed a motion for summary judgment on 22 October 1987. Affidavits were filed in advance in preparation for the summary judgment hearing. The hearing took place on 2 November 1987.\nAt the hearing, defendants\u2019 attorney was allowed to argue in favor of the motion. Plaintiffs\u2019 attorney then stood up in open court and took a voluntary dismissal pursuant to G.S. 1A-1, Rule 41. The trial court took the matters under advisement and on 10 November 1987, Judge Barnette signed an order granting summary judgment in favor of the defendants. On 16 November 1987, plaintiffs formally filed their notice of voluntary dismissal without prejudice. From the trial court\u2019s entry of summary judgment for the defendants, plaintiffs appeal.\nRobert T. Perry, attorney for plaintiff-appellants.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by George W. Miller, Jr. and Sherry R. Dawson, attorneys for defendant-appellees."
  },
  "file_name": "0513-01",
  "first_page_order": 543,
  "last_page_order": 546
}