Lafferty v. Lafferty

• Decision Date: 04 March 1997
• Docket Number: No. COA96-432,COA96-432
• Citation: 481 S.E.2d 401,125 N.C.App. 611
• Court: North Carolina Court of Appeals
• Parties: Thelma Wiggins LAFFERTY, Plaintiff, v. Roy Elvin LAFFERTY, Defendant.

Page 401

481 S.E.2d 401

125 N.C.App. 611

Thelma Wiggins LAFFERTY, Plaintiff, v. Roy Elvin LAFFERTY, Defendant.

No. COA96-432.

Court of Appeals of North Carolina.

March 4, 1997.

Godwin & Spivey by W. Michael Spivey, Tarboro, for plaintiff.

Perry W. Martin, Ahoskie, for defendant.

LEWIS, Judge.

The following facts are contained in the trial court's findings and have not been assigned as error by plaintiff. They are therefore binding on this Court. See State v. Ward, 66 N.C.App. 352, 354, 311 S.E.2d 591, 592 (1984).

On 30 September 1985, defendant Roy Elvin Lafferty filed for absolute divorce from plaintiff Thelma Wiggins Lafferty in Hertford County District Court. On 13 December 1985, plaintiff filed an answer and counterclaimed for enforcement of a separation agreement entered into by the parties. In response to plaintiff's counterclaim, defendant filed a reply seeking various forms of affirmative relief, namely nullification or modification of the separation agreement, reimbursement for an unauthorized sale of property and the emancipation of the parties' child. The Hertford County District Court thereafter severed the counterclaim from the divorce action and entered a decree of absolute divorce. No other written judgment was ever entered into or signed.

Subsequently, plaintiff, defendant in Hertford County, filed this action in Nash County District Court on 14 September 1994 seeking specific performance of the separation agreement. Defendant, plaintiff in Hertford County, moved to dismiss this action on the ground that the Hertford County action was still pending. Subsequently, on 10 May 1995, plaintiff filed a Notice of Voluntary Dismissal in Hertford County.

Based on these findings of fact, the Nash County District Court concluded that, despite plaintiff's attempt to voluntarily dismiss it, the Hertford County case was still pending and therefore the Nash County case must abate. Plaintiff appeals this ruling. We affirm.

In North Carolina, "the pendency of a prior action between the same parties for the same cause in a state court of competent jurisdiction abates a subsequent action in another court of the state having like jurisdiction." Weaver v. Early, 325 N.C. 535, 538, 385 S.E.2d 334, 336 (1989). Therefore, the issue in the present case is whether plaintiff's notice of dismissal was sufficient to terminate the Hertford County case. We hold that it was not.

N.C.R. Civ. P. 41 allows a plaintiff to voluntarily dismiss his or her case at any time prior to resting. N.C.R. Civ. P. 41(a)(1)(1990). However, in situations "[w]here defendant sets up a claim for affirmative relief against plaintiffs arising out of the same transactions alleged by plaintiffs, plaintiffs cannot take a voluntary dismissal under Rule 41 without the consent of defendant." Maurice v. Hatterasman Motel Corp., 38 N.C.App. 588, 592, 248 S.E.2d 430, 433 (1978)(citing McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976)). This exception has also been applied to a defendant attempting to dismiss a counterclaim when the plaintiff has joined in the requested relief by reply. See Hunt v. Hunt, 117 N.C.App. 280, 284, 450 S.E.2d 558, 561 (1994).

The rationale for this rule of practice is simply that it would be manifestly unjust to allow a plaintiff, who comes into court upon solemn allegations which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, ex parte, the allegations after defendant has demanded the relief to which they entitle him. Upon demand for such relief defendant's right to have his claim adjudicated in the case "has supervened," and plaintiff thereby loses the right to withdraw allegations upon which defendant's claim is based without defendant's consent.

McCarley v. McCarley, 289 N.C. 109, 113, 221 S.E.2d 490, 493 (1976) (citation omitted).

Although this is not a situation where the plaintiff wishes to withdraw his or her original action after the defendant has filed a counterclaim or one where the reply also seeks...