Hous. Auth. of The City Wilmington v. Sparks Eng'g

• Decision Date: 17 May 2011
• Docket Number: No. COA10–950.,COA10–950.
• Citation: 711 S.E.2d 180
• Court: North Carolina Court of Appeals
• Parties: HOUSING AUTHORITY OF the CITY [OF] WILMINGTON, North Carolina, Plaintiff,v.SPARKS ENGINEERING, PLLC, Defendant.

711 S.E.2d 180

HOUSING AUTHORITY OF the CITY [OF] WILMINGTON, North Carolina, Plaintiff,

v.SPARKS ENGINEERING, PLLC, Defendant.

No. COA10–950.

Court of Appeals of North Carolina.

May 17, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from order entered 18 February 2010 by Judge Gary E. Trawick in New Hanover County Superior Court. Heard in the Court of Appeals 13 December 2010.

Shipman & Wright, LLP, Wilmington, by Gary K. Shipman, and William G. Wright, for Plaintiff-appellee.

Allen, Moore & Rogers, L.L.P., Raleigh, by Joseph C. Moore, III, and John C. Rogers, III, for Defendant-appellant. ERVIN, Judge.

Defendant Sparks Engineering, PLLC, appeals from an order denying its motion seeking the dismissal of a claim that Plaintiff Housing Authority of the City of Wilmington had asserted against it or, in the alternative, the designation of Plaintiff's action as a Complex Business Case. In addition, Defendant has filed a petition asking this Court, in the event that we determine that it is not entitled to appeal the trial court's order as a matter of right, to issue a writ of certiorari permitting us to review Defendant's challenge to the trial court's order on the merits. After careful consideration of the issues raised by Defendant's appeal and certiorari petition in light of the record and the applicable law, we conclude that Defendant has no right to appeal the trial court's order; that we should not, in the exercise of our discretion, issue a writ of certiorari in accordance with Defendant's request; and that Defendant's appeal should therefore be dismissed.

I. Factual Background

On 15 February 2008, Plaintiff filed suit against Defendant, a structural engineering firm, in New Hanover County File No. 08 CVS 710. In its complaint, Plaintiff sought damages from Defendant stemming from services provided to Plaintiff in connection with Plaintiff's acquisition of an apartment complex. Plaintiff asserted that Defendant had entered into a contract with Plaintiff requiring the performance of a structural analysis and an inspection of the apartment complex; that Plaintiff's decision to purchase the apartment complex was predicated, at least in part, upon the information contained in Defendant's report concerning the condition of the property; that Defendant “failed to properly conduct its inspection and analysis” of the apartment complex; that the apartments in the complex suffered from numerous serious defects; that Plaintiff was eventually forced to abandon the apartment complex because tenants could not safely live there; and that Plaintiff was entitled to recover compensatory damages from Defendant for breach of contract, negligence, and negligent misrepresentation.

On 16 April 2008, Defendant filed an answer in which it denied the material allegations of Plaintiff's complaint and asserted a number of affirmative defenses. On 20 February 2009, with leave of court and Plaintiff's consent, Defendant amended its answer to assert an additional affirmative defense. On 26 January 2010, Defendant filed a Motion to Dismiss or, in the Alternative, for Recommendation for Designation as a Complex Business Case, in which Defendant alleged that Plaintiff had improperly provided information concerning the case to local media, resulting in publicity that “render[ed] it impossible for Defendant Sparks to receive a fair trial,” and requested the court to “exercise its inherent authority to prevent abuses, ensure the orderly operation of justice, and manage the judicial process by dismissing this action with prejudice.” In the alternative, Defendant requested that this case be designated as a Complex Business Case and assigned to a judge “who will be well positioned to deal with the many complex issues” that would inevitably arise during the litigation of this case, making it “possible for motions and pre-trial proceedings to be heard in a venue other than New Hanover County—and hence at least physically removed from the glare of local publicity unleashed by [Plaintiff]—to wit, Raleigh, while preserving the right of Defendant Sparks to conduct the trial in New Hanover County.”

A hearing was conducted before the trial court concerning Defendant's motion on 4 February 2010. At that time, the trial court offered to enter an order changing the venue for the trial, but Defendant rejected this remedy. On 18 February 2010, the trial court entered an order denying Defendant's motion. On 13 April 2010, Plaintiff voluntarily dismissed its complaint in New Hanover County File No. 08 CVS 710 pursuant to N.C. Gen.Stat. § 1A–1, Rule 41(a). On the same date, Plaintiff filed a complaint against Defendant, identical except for the addition of Ronald W. Sparks as a party defendant, in New Hanover County File No. 10 CVS 1767. On 13 May 2010, Defendant noted an appeal to this Court from the trial court's denial of its dismissal motion in New Hanover County File No. 08 CVS 710. On 6 August 2010, Defendant filed a certiorari petition seeking review of the trial court's order in New Hanover County File No. 08 CVS 710 on the merits as an alternative to its notice of appeal.

II. Legal Analysis

A. Appellate Jurisdiction

As an initial matter, we must address the extent, if any, to which Defendant's appeal is properly before us. “[A]n appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.” Xiong v. Marks, 193 N.C.App. 644, 652, 668 S.E.2d 594, 599 (2008) (citations omitted). “A jurisdictional default ... precludes the appellate court from acting in any manner other than to dismiss the appeal.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (citing Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000)). A careful review of the record and the applicable law demonstrates that we lack jurisdiction over Defendant's appeal and that it should, as a result, be dismissed.

As discussed above, Defendant noted an appeal, in the aftermath of Plaintiff's decision to take a voluntary dismissal without prejudice in New Hanover County File No. 08 CVS 710, from the denial of a dismissal motion that it filed and unsuccessfully litigated in that case. According to N.C. Gen.Stat. § 1A–1, Rule 41(a), “an action or any claim therein may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before the plaintiff rests his case[.]” By voluntarily dismissing its complaint against Defendant pursuant to N.C. Gen.Stat. § 1A–1, Rule 41(a), Plaintiff effectively mooted Defendant's dismissal motion.

“It is well settled that ‘[a] Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case[.]’ ... ‘[T]he effect of a judgment of voluntary [dismissal] is to leave the plaintiff exactly where he [or she] was before the action was commenced.’ After a plaintiff takes a Rule 41(a) dismissal, ‘there is nothing the defendant can do to fan the ashes of that action into life[,] and the court has no role to play.’ ” Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 593, 528 S.E.2d 568, 570 (2000) (quoting Walker Frames v. Shively, 123 N.C.App. 643, 646, 473 S.E.2d 776, 778 (1996); Gibbs v. Light Co., 265 N.C. 459, 464, 144 S.E.2d 393, 398 (1965); and Universidad Cent. Etc., Inc. v. Liaison C. on Med. Ed., 760 F.2d 14, 18 n. 4 (1st Cir.1985)). As a result of the fact that, “[o]nce a party voluntarily dismisses its action pursuant to N.C. Gen.Stat. § 1A–1, Rule 41(a)(1) (1990), ‘it [is] as if the suit had never been filed [,]’ ” Pine Knoll Assn. v. Cardon, 126 N.C.App. 155, 161, 484 S.E.2d 446, 449 (quoting Tompkins v. Log Systems, Inc., 96 N.C.App. 333, 335, 385 S.E.2d 545, 547 (1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 819 (1990)), disc. rev. denied, 347 N.C. 138, 492 S.E.2d 26 (1997), Plaintiff's decision to voluntarily dismiss its action against Defendant effectively terminated that proceeding, barring review of any interlocutory orders that the trial court might have entered to that point, such as the denial of Defendant's dismissal motion. Given that Plaintiff's original action no longer exists, we lack jurisdiction over Defendant's challenge to the propriety of the trial court's decision to deny its dismissal motion, so that Defendant's appeal should be, and hereby is, dismissed.¹

B. Defendant's Petition for Writ of Certiorari

In seeking the issuance of a writ of certiorari to permit review of its claim on the merits, Plaintiff asserts that there are “certain inconsistencies in the decisional law regarding a party's right to appeal following a voluntary dismissal without prejudice” and that, in light of “these inconsistencies” and “the importance of the issues implicated by the Order denying the subject sanctions motion to both the parties and the justice system,” “the Court [should] issue its writ of certiorari and review the trial court's Order denying the sanctions motion.” After carefully considering both components of Defendant's argument, we conclude that neither provides adequate justification for the issuance of the requested writ of certiorari.

In seeking certiorari, Plaintiff acknowledges the decisions holding that a party's voluntary dismissal of an action precludes further review of orders entered prior to the dates upon which the action was dismissed. On the other hand, Defendant claims that there are “inconsistencies” in our decisions relating to this appealability issue and urges us to adhere to one of the “lines” of cases that Defendant contends would support allowing an appeal as of right from the trial court's order. After reviewing the cases upon which Defendant relies, we conclude that there is no “inconsistency” in our decisions with respect to the appealability of orders entered after the taking of a voluntary dismissal and that the cases upon which Defendant relies have no application to the facts of this case.

According to Defendant, the “line of decisions...