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  "name": "STEFEN CRAIG GILLIKIN v. WALTER HANNON PIERCE, JR.",
  "name_abbreviation": "Gillikin v. Pierce",
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    "judges": [
      "Judges Johnson and Eagles concur."
    ],
    "parties": [
      "STEFEN CRAIG GILLIKIN v. WALTER HANNON PIERCE, JR."
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendant appeals the trial court\u2019s denial of defendant\u2019s motion to dismiss plaintiffs personal injury complaint.\nDefendant Pierce (\u201cPierce\u201d) was the driver of a car which collided with a car that plaintiff Gillikin (\u201cGillikin\u201d) was driving. Originally, Pierce instituted a lawsuit for personal injury against Gillikin, alleging Gillikin\u2019s negligence. Gillikin answered Pierce\u2019s complaint, denied negligence and counterclaimed against Pierce for Pierce\u2019s negligence in causing the accident. Each alleged that the other had negligently crossed the center line of the road, causing the collision. Pierce answered Gillikin\u2019s counterclaim, denying liability and asserting Gillikin\u2019s contributory negligence as a defense. Before the lawsuit was tried, Pierce voluntarily dismissed his complaint with prejudice on 12 January 1987, at 10:37 a.m., pursuant to N.C.G.S. \u00a7 1A-1, Rule 41(a) (Cum. Supp. 1989). The voluntary dismissal was signed by Pierce and by Pierce\u2019s attorney. Pierce also executed a release and discharge of all claims against Gillikin resulting from the collision in exchange for $3,000.00. The same day, hour and minute, Gillikin voluntarily dismissed his counterclaim against Pierce without prejudice. The voluntary dismissal was signed by Gillikin\u2019s attorney and was not signed by Gillikin. Approximately, ten months later, Gillikin filed a complaint against Pierce which contained the same allegations as those in his former counterclaim against Pierce. Pierce filed a motion to dismiss Gillikin\u2019s complaint, asserting that abatement of Gillikin\u2019s cause of action was necessary because Pierce\u2019s own complaint had not been properly dismissed, and remained as a prior pending action between the parties on the same issues of negligence. In its order denying Pierce\u2019s motion, the trial court found that the prior action had been properly dismissed.\nThe dispositive issue is whether plaintiff may voluntarily dismiss his complaint when defendant asserts a counterclaim arising out of the same transaction alleged in the complaint, and defendant\u2019s attorney simultaneously voluntarily dismisses the counterclaim.\nAlthough appeal of the trial court\u2019s denial of a motion to dismiss on the ground of a prior action pending is interlocutory because it is not a final adjudication, a denial of such a motion is immediately appealable. Atkins v. Nash, 61 N.C. App. 488, 489, 300 S.E.2d 880, 881 (1983). Accordingly, we address the merits.\nWhen \u201c \u2018defendant sets up a counterclaim arising out of the same transaction alleged in the plaintiffs complaint, the plaintiff cannot take a [voluntary dismissal] without the consent of the defendant. . . \u201d McCarley v. McCarley, 289 N.C. 109, 112, 221 S.E.2d 490, 492 (1976) (citation omitted); see N.C.G.S. \u00a7 1A-1, Rule 41(a)(1) (voluntary dismissal by plaintiff or by stipulation). The basis for this rule is that any party making such a claim has \u201cthe right to have [adjudicated] all the matters put in issue by the pleadings . . .\u201d Whedbee v. Leggett, 92 N.C. 465, 470 (1884). However, if no counterclaim is pending, or if the counterclaim is independent and does not arise of the same transaction as the complaint, a party may voluntarily dismiss his suit without the opposing party\u2019s consent by filing a notice of dismissal. N.C.G.S. \u00a7 1A-1, Rule 41(a)(l)(i); Ward v. Taylor, 68 N.C. App. 74, 78, 314 S.E.2d 814, 819, cert. denied, 311 N.C. 769, 321 S.E.2d 157 (1984) (after a party files a voluntary dismissal, no suit is pending). \u201cPending\u201d means \u201c[b]egun, not yet completed . . . awaiting an occurrence or conclusion of action.\u201d Black\u2019s Law Dictionary 1021 (5th ed. 1979).\nIn this case, Pierce and Gillikin each filed a notice of dismissal during the same minute on the same day, and their simultaneous action constituted a \u2018conclusion of action\u2019 with respect to each claim. Since Gillikin\u2019s counterclaim was concluded at the time Pierce filed his complaint dismissal, Gillikin has no counterclaim pending against Pierce which would enable Gillikin to prevent Pierce from dismissing his complaint without Gillikin\u2019s consent. Each party\u2019s concurrent right to have his claim issues adjudicated, and concurrent right to hold the other into court, ceased simultaneously, and neither may assert improper dismissal of his own or the other\u2019s pleadings.\nAssuming, arguendo, that Gillikin\u2019s counterclaim was pending when Pierce dismissed his complaint, we determine that Gillikin\u2019s counterclaim dismissal constituted implied consent to Pierce\u2019s complaint dismissal.\nGenerally, consent is evidenced \u201cby filing a stipulation of dismissal signed by all parties who have appeared in the action. . . .\u201d N.C.G.S. \u00a7 1A-1, Rule 41(a)(l)(ii). However, our courts disfavor a strict statutory construction of Rule 41, and allow other actions to substitute for the procedure of filing of a \u201cpaper writing\u201d in compliance with the procedural mandates. See Danielson v. Cummings, 300 N.C. 175, 179, 265 S.E.2d 161, 163 (1980) (North Carolina tradition equates oral notice in open court with a filed written notice of voluntary dismissal). \u201cIn construing Rule 41 ... we must give effect to the legislative intent, and avoid constructions which operate to defeat or impair that intent.\u201d Ward, at 79, 314 S.E.2d at 819. The legislative- intent underlying enactment of Rule 41 was to protect defendants from abusive use of the voluntary dismissal procedure when \u201cthere has been a heavy expenditure of time and effort by the court and other parties.\u201d N.C.G.S. \u00a7 1A-1, Rule 41, Comment.\nIn this case, Gillikin\u2019s filing of a signed voluntary dismissal of his claim against Pierce at the same instant that Pierce dismissed his complaint was in effect a stipulation of dismissal to Pierce\u2019s claim. Gillikin\u2019s dismissal of his counterclaim showed Gillikin\u2019s willingness to abandon the time and effort he had expended on his claim, and to forego his right to have his claim adjudicated. Such action speaks \u201cconsent\u201d as clearly as oral notice or written stipulation.\nPierce also contends that Gillikin\u2019s notice of voluntary dismissal of Gillikin\u2019s counterclaim is ineffective because only Gillikin\u2019s attorney signed the notice. We disagree, because the lack of Gillikin\u2019s signature was immaterial.\nAn attorney may properly sign a written dismissal without his or her client\u2019s signature. See Department of Transportation v. Combs, 71 N.C. App. 372, 322 S.E.2d 602 (1984). While Rule 41(a) requires the consent of the parties to the litigation, there is a presumption that an attorney has authority to act for his client and one challenging the attorney\u2019s actions as being unauthorized has the burden of rebutting the presumption. N.C.G.S. \u00a7 1A-1, Rule 41(a); J.I.C. Electric, Inc. v. Murphy, 81 N.C. App. 658, 660, 344 S.E.2d 835, 837 (1986). Here, Pierce has offered no evidence to rebut the presumption.\nWe determine that the earlier action was concluded, is no longer pending, and does not abate this action. Therefore, the trial court was correct in denying defendant\u2019s motion to dismiss the present action. Layell v. Baker, 46 N.C. App. 1, 4, 264 S.E.2d 406, 409 (1980) (abatement is proper only when another action stating the same claim is pending in another court).\nAffirmed.\nJudges Johnson and Eagles concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Wheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by Stevenson L. Weeks, for plaintiff-appellee.",
      "Stith and Stith, P.A., by F. Blackwell Stith and Susan H. McIntyre, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STEFEN CRAIG GILLIKIN v. WALTER HANNON PIERCE, JR.\nNo. 893SC122\n(Filed 15 May 1990)\n1. Appeal and Error \u00a7 111 (NCI4th) \u2014 prior action pending-denial of dismissal \u2014immediate appeal\nAlthough appeal of the trial court\u2019s denial of a motion to dismiss on the ground of a prior action pending is interlocutory because it is not a final adjudication, a denial of such a motion is immediately appealable.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 50, 105.\n2. Rules of Civil Procedure \u00a7 41.2 (NCI3d)\u2014 voluntary dismissal by plaintiff \u2014 simultaneous voluntary dismissal of counterclaim \u2014 defendant\u2019s consent to plaintiff\u2019s dismissal not required\nA plaintiff may voluntarily dismiss his claim without defendant\u2019s consent when defendant\u2019s attorney simultaneously voluntarily dismisses defendant\u2019s counterclaim arising out of the same transaction alleged in the complaint, since the simultaneous actions of the parties constitute a conclusion of action with respect to each claim, and defendant thus has no counterclaim pending against plaintiff which would enable him to prevent plaintiff from dismissing his claim without defendant\u2019s consent.\nAm Jur 2d, Dismissal, Discontinuance, and Nonsuit \u00a7\u00a7 66, 67.\n3. Rules of Civil Procedure \u00a7 41.2 (NCI3d) \u2014 voluntary dismissal by plaintiff \u2014 simultaneous dismissal of counterclaim \u2014 implied consent to plaintiff\u2019s dismissal\nAssuming arguendo that defendant\u2019s counterclaim arising out of the same transaction as the complaint was still pending when plaintiff voluntarily dismissed his complaint, defendant\u2019s filing of a voluntary dismissal of his counterclaim at the same instant that plaintiff dismissed his complaint was in effect a stipulation of dismissal of plaintiff\u2019s claim.\nAm Jur 2d, Dismissal, Discontinuance, and Nonsuit \u00a7\u00a7 66, 67.\n4. Attorneys at Law \u00a7 30 (NCI4th); Rules of Civil Procedure \u00a7 41.2 (NCI3d)\u2014 notice of dismissal \u2014signature of attorney \u2014 presumption of authority\nA notice of voluntary dismissal of defendant\u2019s counterclaim was not ineffective because it was signed only by defendant\u2019s attorney, since an attorney may properly sign a written dismissal without the client\u2019s signature, and it is presumed that the attorney had authority to act for the client.\nAm Jur 2d, Attorneys at Law \u00a7 155.\nAPPEAL by defendant from order entered 27 December 1988 by Judge David E. Reid, Jr. in CARTERET County Superior Court. Heard in the Court of Appeals 13 September 1989. Defendant\u2019s petition for rehearing allowed for the purpose of modifying the earlier opinion.\nWheatly, Wheatly, Nobles, Weeks & Wainwright, P.A., by Stevenson L. Weeks, for plaintiff-appellee.\nStith and Stith, P.A., by F. Blackwell Stith and Susan H. McIntyre, for defendant-appellant."
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