Lloyd v. Carnation Co., 8215SC391

• Decision Date: 05 April 1983
• Docket Number: No. 8215SC391,8215SC391
• Citation: 61 N.C.App. 381,301 S.E.2d 414
• Parties: Ben LLOYD v. CARNATION COMPANY, Gary Willier, and Warren Manuel.
• Court: North Carolina Court of Appeals

Page 414

301 S.E.2d 414

61 N.C.App. 381

Ben LLOYD v. CARNATION COMPANY, Gary Willier, and Warren Manuel.

No. 8215SC391.

Court of Appeals of North Carolina.

April 5, 1983.

Smith, Moore, Smith, Schell & Hunter by Jack Floyd, Frank J. Sizemore, III, and Jeri L. Whitfield, Greensboro, for defendants-appellees.

BRASWELL, Judge.

The focal point of the facts concerns a verbal contract of 1967 vintage through which the plaintiff allegedly became an exclusive territorial distributor of bull semen for Carnation Company. It is crucial, given the history of the case, that we examine procedure before substance in our analysis.

When the complaint was filed on 18 April 1979, there were three defendants: Carnation Company, Gary Willier and Warren Manuel. The complaint contains seven counts for relief. The first five counts are designated as against defendant Carnation only: (1) Unfair Trade Practice, (2) Unlawful Price Maintenance, (3) Breach of Contract, (4) Unjust Enrichment, and (5) Fraud. Counts Six and Seven are against the defendants Willier and Manuel only. Count Six is for Conspiracy to Commit Unfair Trade Practices. Count Seven is for Unlawful Interference With Contractual Rights.

Defendants filed a joint Answer on 22 June 1979, which alleges eleven defenses and which was amended to include a twelfth defense on 19 December 1980. Defendants moved for summary judgment on all counts on 4 September 1979, and plaintiff filed cross-motion for partial summary judgment on 23 October 1980.

By order dated 1 January 1981, filed 12 January 1981, the trial judge having held evidentiary hearing, allowed defendants' motion for summary judgment on Counts Five, Six and Seven, but denied it as to Counts One, Two, Three, and Four. There was no appeal.

On 21 January 1982, the record shows that "Pursuant to Rule 41 of the North Carolina Rules of Civil Procedure, the plaintiff, Ben Lloyd, hereby gives notice of voluntary dismissal without prejudice of his claims against Carnation Company." No mention is made of the defendants Willier or Manuel.

The record contains no formal notice of appeal or appeal entries. However, on page one of the record we find the following language: "Order entered January 1, 1981, dismissing counts 5, 6, and 7 of the Complaint from which Plaintiff excepted in open Court. Upon voluntary dismissal of the remaining Counts of the Complaint, Plaintiff gave Notice of Appeal in open Court to the North Carolina Court of Appeals." The record was certified by the Clerk of Superior Court on 20 April 1982.

In the plaintiff's grouping of exceptions and assignments of error the record shows but one assignment of error and one exception. The one assignment of error is designated as follows: "The Plaintiff assigns as error the Court's decision in its Order dated January 1, 1981, to allow the Defendant's Motion for Summary Judgment as to Counts 5, 6, and 7 of the Complaint; error is assigned on the basis that there are factual issues sufficient in said counts to be decided by a jury ...."

Upon this quagmire of conduct, basic procedural questions arise as to the defendant Carnation Company singly and as to defendants Willier and Manuel jointly. The problems will be discussed separately.

I. PLAINTIFF'S APPEAL AS TO CARNATION COMPANY

The act of plaintiff taking a voluntary dismissal without prejudice by filing a notice of dismissal at any time before the plaintiff rests his case is authorized by Rule 41(a)(1) of the Rules of Civil Procedure. Pursuant to that rule, on 21 January 1982, plaintiff gave "notice of voluntary dismissal without prejudice of his claims against Carnation Company." (emphasis added). Only then does plaintiff "appeal." By his assignment of error plaintiff now wants us to review the decision of the trial judge entered on 1 January 1981, more than one year prior to the dismissal, when summary judgment was granted on Count Five of the complaint in favor of Carnation Company.

We hold that when plaintiff took a voluntary dismissal without prejudice as to his claims against Carnation Company, he destroyed his right to appeal the adverse ruling of 1 January 1981 allowing summary judgment on Count Five of the Complaint. There was nothing left on which to appeal after the voluntary dismissal.

Our research has led us to the case of Pipeliners Local Union No. 798, Tulsa, Okl. v. Ellerd, 503 F.2d 1193 (10th Cir.1974), which we choose to use for comparative purposes. The Tenth Circuit was confronted with the procedural situation wherein on 9 February 1972 the trial court had entered a formal order granting all defendants' motions to dismiss the Complaint for failure to state a claim upon which relief could be granted. The existence of a counterclaim kept the case alive. On 26 September 1973, the plaintiffs took an oral voluntary dismissal in open court of "all actions 'as to all parties with the exception of the parties to the counterclaim.' " Id. at 1199.

The decision of Pipeliners, Id. at 1200, declares: "It is significant, we believe, that appellants' (i.e., the plaintiffs') supplemental memorandum on appeal refers to the dismissal order of September 26, 1973, as one 'voluntarily' agreed upon by plaintiffs-appellants. The voluntary dismissal constituted a bar to appellants' attack upon the Order of Dismissal of February 9, 1972." Of like import is 5 Moore's Federal Practice p 41.02 at 41-43 (2d ed. 1982): "Where plaintiffs' notice of voluntary dismissal under Rule 41(a)(1) is not disturbed by the trial court or where plaintiff knowingly and willingly agrees to a stipulation of dismissal, he has no standing to appeal."

In his discussion of the effect of dismissal with and without prejudice, Moore, Id., p 41.05 at 41-76, states that "A dismissal without prejudice leaves the situation so far as procedures therein are concerned the same as though the suit had never been brought." This text is cited with approval in Covey v. C.I.T. Corp., 71 F.R.D. 487, 489-90 (E.D.Okl.1975). However, as provided in our Rule 41(a)(1) "a new action based on the same claim may be commenced within one year after such dismissal ...."

The case of McGoff v. Rapone, 78 F.R.D. 8 (E.D.Pa.1978), discussed the dismissal procedures under federal practice. The court stated that a voluntary dismissal by stipulation "is not 'final' in the sense that, being without prejudice, the plaintiff is free to refile. Similarly, since it does not even require an order ... then by definition it cannot be an 'appealable' order, and in that technical sense it is 'nonfinal.' ... However, ... a Fed.R.Civ.P. 41(a)(1) dismissal is 'final' for purposes of a 60(b) motion [relief from judgment], which requires a 'final judgment, order or proceeding.' " Id. at 22.

Although we have found no North Carolina case directly on point, we believe that the fundamental principles of law concerning standing to appeal in these federal citations are fully applicable to the factual situation before us. The appeal of the plaintiff against Carnation Company is dismissed.

II. PLAINTIFF'S CLAIMS AGAINST DEFENDANTS WILLIER AND MANUEL

The only party-defendants in Counts Six and Seven of the complaint are Willier and Manuel. Plaintiff sought no relief against these defendants within any other Count or claim. Count Six alleges a Conspiracy to Commit Unfair Trade Practices. Count Seven alleges an Unlawful Interference With Contractual Rights. After a December 1980 evidentiary hearing on defendants' motion for summary judgment as to all claims, the trial judge entered an order dated 1 January 1981, filed 12 January 1981, dismissing Counts Five, Six and Seven in their entirety. To the entry of summary judgment plaintiff excepted in open court but did not appeal.

On 21 January 1982, plaintiff took a voluntary dismissal without prejudice of his claims against the defendant Carnation Company. No mention is made of the defendants Willier and Manuel. Following entry of the voluntary dismissal, plaintiff gave notice of appeal in open court. A full year passed between the granting of the motion for summary judgment and the giving of notice of appeal. There are no appeal entries in the record.

Immediately before the taking of the voluntary dismissal, the case was alive as to the four remaining counts against defendant Carnation Company. By brief and oral arguments the parties tell us that a jury trial of several days' duration was in progress in January 1982 as to Carnation Company, and that plaintiff's dismissal came before plaintiff rested his case. In open court after the voluntary dismissal of Carnation, plaintiff gave his only notice of appeal.

Is the plaintiff "in court" as to the defendants Willier and Manuel? We answer yes and will examine the merits of the granting of summary judgment.

The losing party has no absolute right to appeal immediately from an interlocutory order. As to defendant Carnation Company, the summary judgment against it on Count Five was interlocutory in that the ruling disposed of fewer than all claims, and in that there was no certification by the judge as to substantial need for immediate review on appeal without delay. As to defendants Willier and Manuel, since plaintiff sought no relief against them except as pleaded in Counts Six and Seven, when these two counts were dismissed by summary judgment, the result was that all claims against Willier and Manuel were dismissed.

Plaintiff could have immediately appealed from this interlocutory order, considering that the ruling on summary judgment disposed of all parties and all claims, by virtue of the ruling being final as to all claims of the plaintiff as to each of these two defendants. Plaintiff could have had these two claims certified for appeal by the trial court under Rule 54(b) of the Rules of Civil Procedure. The exception to the court's ruling of 1 January 1981 kept alive the issue of the correctness of the trial judge's decision on summary judgment while the plaintiff proceeded with the...