Kohn v. Mug-a-Bug

• Decision Date: 05 July 1989
• Docket Number: No. 8814SC728,B,MUG-A-BU,A-B,8814SC728
• Citation: 380 S.E.2d 548,94 N.C.App. 594
• Court: North Carolina Court of Appeals
• Parties: Michael C. and Lynn M. KOHN v.en Knowles d/b/a Mug-ug, Allenton Realty and Insurance Company Corporation, Shelli, Inc., Shelli Lieberman d/b/a Shelli, Inc., Collins Baber, Hetti Johnson.

Page 548

380 S.E.2d 548

94 N.C.App. 594

Michael C. and Lynn M. KOHN v. MUG-A-BUG, Ben Knowles d/b/a Mug-A-Bug, Allenton Realty and Insurance Company Corporation, Shelli, Inc. Shelli Lieberman d/b/a Shelli, Inc. Collins Baber, Hetti Johnson.

No. 8814SC728.

Court of Appeals of North Carolina.

July 5, 1989.

Henry E. Moss, Moss & Carmichael, Durham, for plaintiffs appellees.

Womble, Carlyle, Sandridge and Rice by William E. Moore, Jr., Raleigh, for defendants appellants Shelli, Inc. and Shelli Lieberman d/b/a Shelli, Inc.

PHILLIPS, Judge.

Waiving defendants' failure to notice their appeal from the order involved within the time stated by Rule 3, N.C. Rules of Appellate Procedure, we treat the appeal as a petition for certiorari and affirm the order appealed from, since Judge Gudger's refusal to grant defendants' motions for attorney's fees and summary judgment was clearly correct.

The action against defendants having been voluntarily dismissed without prejudice under Rule 41(a)(1)--as plaintiffs had an unqualified right to do, since the case was still in the pre-trial stage and defendants had not sought any affirmative relief, Lowe v. Bryant, 55 N.C.App. 608, 286 S.E.2d 652 (1982); W. Shuford, N.C. Civil Practice and Procedure Sec. 41-4, p. 339 (3d ed. 1988)--no action against the defendant appellants was pending in which the court could act. Caroon v. Eubank, 30 N.C.App. 244, 226 S.E.2d 691 (1976). Defendants' argument that the dismissal was ineffective because affirmative relief was sought by their motions for attorney's fees and summary judgment is fallacious. "Affirmative relief" in a lawsuit is "[r]elief for which defendant might maintain an action independently of plaintiff's claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it." Black's Law Dictionary 56 (5th ed. 1979). The fees were obtainable, if at all, under the statutes relied upon, G.S. 6-21.5 and G.S. 75-16.1, only as a cost of court in this action; they could not have been recovered in a separate action. Furthermore, under the terms of the statutes relied upon, fees are awardable only to a "prevailing party;" and there is no prevailing party in this case since the voluntary dismissal without prejudice was not an adjudication on the merits. Collins v. Collins, 18 N.C.App. 45, 196 S.E.2d 282 (1973). And, of course, defendants' motion for summary judgment was not a claim for affirmative relief, but a request to dismiss the action, which the court was without power to...