Cullen v. Carolina Healthcare System , 136 N.C. App. 480 ( 2000 )

HORTON, Judge.

Plaintiffs contend the trial court erred in (I) ruling that their conditional voluntary dismissal constituted a voluntary dismissal under Rule 41(a)(1) of the North Carolina Rules of Civil Procedure, (II) dismissing the action, and (III) taxing costs against plaintiffs pursuant to Rule 41(d). We disagree, and affirm the order of the trial court. Since the assignments of error all relate to the application of Rule 41, we will consider the assignments together.

The trial court taxed costs against plaintiffs pursuant to Rule 41(d) of the North Carolina Rules of Civil Procedure, which provides in pertinent part that “[a] plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis.” N.C. Gen. Stat. § 1A-1, Rule 41(d) (1999) (emphasis added). Plaintiffs contend that their action had not been voluntarily dismissed pursuant to Rule 41(a), so that the taxing of costs by the trial court was error. We disagree.

Plaintiffs first argue that their action had not been voluntarily dismissed because the “Conditional Voluntary Dismissal was, as a matter of law, a nullity with no effect whatsoever.” In support of their proposition, plaintiffs rely on Thompson v. Newman, 101 N.C. App. 385, 399 S.E.2d 407 (1991), aff’d in part, vacated in part on other grounds, 331 N.C. 709, 417 S.E.2d 224 (1992), in which we held that a prospective oral statement of intent to dismiss a case voluntarily was not sufficient to constitute a voluntary dismissal under Rule 41(a). In Thompson, plaintiff’s counsel stated, “we’re going to take a voluntary dismissal without prejudice.” The statement “[was] ambiguous in the absence of additional evidence as to whether plaintiffs’ attorney was in fact taking a voluntary dismissal or was merely expressing an intention to do so.” Id. at 389, 399 S.E.2d at 409.

Appellants also rely on the case of Hyde Constr. Co. v. Koehring Co., 388 F.2d 501 (10th Cir.), cert. denied, 391 U.S. 905, 20 L. Ed. 2d 419 (1968). In Hyde, the plaintiff filed a motion in opposition to a change of venue, and also filed notice that if venue were changed, the action would be voluntarily dismissed. The trial court in Hyde denied plaintiff’s motion and dismissed the action. The Circuit Court of Appeals reasoned that the Hyde plaintiff’s statement amounted to a “conditional notice of dismissal [which] is not within the scope of Rule 41(a)(1).” Hyde, 388 F.2d at 507 (emphasis added).

Thompson and Hyde are clearly distinguishable from the case before us. “The crucial element in a notice of dismissal is the intention of the party actually to dismiss the case.” Robinson v. General Mills Restaurants, 110 N.C. App. 633, 636, 430 S.E.2d 696, 698 (1993), disc. review denied as improvidently granted, 335 N.C. 763, 440 S.E.2d 274 (1994). In both Thompson and Hyde, the intention to enter a voluntary dismissal was prospective and was conditional in Hyde. Here, despite the “Conditional” label plaintiffs attempted to place upon their notice of dismissal, the plaintiffs actually filed a notice of voluntary dismissal, and expressly stated in that document that the dismissal was entered pursuant to the provisions of Rule 41(a).

Plaintiffs also argue that fairness and equity require that their notice of dismissal be treated as a nullity, and the case restored to the trial calendar. Plaintiffs are understandably concerned about the trial court’s decision to attempt to try their case, following an initial indication that the case would be continued. Plaintiffs further contend that Judge Lamb’s decision to go forward with the case reversed, in effect, the decision of Judge Caviness to continue the matter, in violation of our well-established rule regarding the inability of a superior court judge to change the judgment of another superior court judge. Calloway v. Motor Co., 281 N.C. 496, 504, 189 S.E.2d 484, 490 (1972).

Here, plaintiffs initially objected to the case being continued, stated that they had completed all necessary trial preparation, and wanted to try the matter. Although plaintiffs’ counsel had released two witnesses who were police officers, and released the plaintiffs themselves, both the parties and witnesses resided in the Charlotte area and the trial court promised necessary assistance to have the witnesses appear for trial as needed. Further, there were pretrial matters to be heard and a jury to be selected before trial of the case could begin, thereby allowing additional time to secure all necessary witnesses. Finally, the trial court asked plaintiffs’ counsel to contact his clients and witnesses to determine their availability, but never stated that the case was going to be tried in the absence of a necessary party or witness. Plaintiffs never reported to the trial court either an inability to return to court or an inability to have their witnesses present. Plaintiffs’ motion for continuance was never renewed prior to filing their voluntary dismissal.

Plaintiffs also argue that the action by Judge Lamm reversed the order of continuance entered by Judge Caviness. However, “a judge has the power to modify an interlocutory order made by another whenever there is a showing of changed conditions which warrant such action.” Id. at 502, 189 S.E.2d at 488. Here, there were obvious changed circumstances after the parties’ appearance before Judge Caviness, in that the court file in this case was located and a special superior court judge became available to try this protracted matter. Under these circumstances, Judge Caviness’ order of continuance could be modified.

We find no abuse of discretion by the trial court in failing to continue the matter, hold that the voluntary dismissal entered by the plaintiffs was sufficient to dismiss the case without prejudice pursuant to Rule 41(a), and hold that the trial court did not err in taxing costs to the plaintiffs as the provisions of Rule 41(d) required the court to do so.

Affirmed.

Judges MARTIN and TIMMONS-GOODSON concur.