               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-1160

                                Filed: 21 May 2019

Buncombe County, No. 18 CVS 1464

SHEENA BAREFOOT, Plaintiff

              v.

JACQUELYN PATRICIA RULE, Defendant.


      Appeal by plaintiff from order entered 13 August 2018 by Judge Marvin P.

Pope, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 10

April 2019.


      Crumley Roberts, LLP, by David J. Ventura, for plaintiff-appellant.

      McAngus Goudelock & Courie, by Zephyr Jost Sullivan, for defendant-appellee.


      STROUD, Judge.


      Plaintiff appeals an order granting defendant’s motion for judgment on the

pleadings based upon res judicata. Because we conclude that plaintiff’s voluntary

dismissal without prejudice of her prior lawsuit in Tennessee under Tennessee Rule

41 had no res judicata effect, we reverse and remand for further proceedings

consistent with this opinion.

                                   I.     Background
                                       BAREFOOT V. RULE

                                       Opinion of the Court



       On 28 June 2016,1 plaintiff filed a personal injury action in Tennessee against

defendant, alleging that defendant’s negligence caused her injuries arising out of an

automobile accident. The collision between the parties’ vehicles was on 3 July 2015

in North Carolina, but both parties were residents of Tennessee. In Tennessee, the

statute of limitations for a personal injury claim is one year. See Tenn. Code Ann. §

28-3-104(a)(1)(A) (Supp. 2016). On 7 November 2016, plaintiff filed a “Nonsuit

without Prejudice” noticing voluntary dismissal without prejudice citing “T.R.C.P.

41.01” which is similar to North Carolina General Statute § 1A-1, 41(a)(1) (2015).

Compare Tenn. R. Civ. P. 41.01; N.C. Gen. Stat. § 1A-1, Rule 41 (2015). Both the

Tennessee Rule of Civil Procedure Rule 41.01 and North Carolina’s Rule of Civil

Procedure 41 allow voluntary dismissal by a plaintiff without prejudice. Tenn. R.

Civ. P. 41.01; N.C. Gen. Stat. § 1A-1, Rule 41. Further, both states extend the statute

of limitations to refile a claim for one year from the date of the voluntary dismissal

without prejudice, if the statute of limitations would have otherwise expired. See

Tenn. Code Ann. § 28-1-105(a) (2000); N.C. Gen. Stat. § 1A-1, Rule 41.                      On 16

November 2016, the Tennessee trial court entered an order dismissing plaintiff’s

action without prejudice, noting it was the first dismissal.




1The file stamp is barely legible but defendant notes 28 June 2016 as the date of the complaint, and
our record confirms that an answer to that complaint was filed by August of 2016.


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                                  Opinion of the Court



      On 5 April 2018, plaintiff filed a complaint seeking recovery for personal

injuries arising from the same automobile accident in North Carolina, alleging

essentially the same tort claims as she had in Tennessee. The statute of limitations

for a personal injury claim in North Carolina is three years, see N.C. Gen. Stat. § 1-

52(16) (2015); so the North Carolina case was filed within North Carolina’s statute of

limitations, see id., but Tennessee’s one year statute of limitations and the one-year

extension would have expired. See Tenn. Code. §§ 28-1-105(a); -3-104(a)(1)(A).

       In June of 2018, defendant answered plaintiff’s complaint, denying the

material factual allegations and alleging several affirmative defenses, including res

judicata. Defendant alleged:

             Plaintiff filed a nearly identical action in the Circuit Court
             of Davidson County, Tennessee. A copy of the pleadings for
             this action is attached hereto as Exhibits A-F. On
             November 7, 2016, Plaintiff filed Exhibit F, Non-Suit
             without Prejudice. Tennessee has a one year statute of
             limitations for negligence claims. Plaintiff had one year to
             re-file her action after taking the voluntary dismissal,
             during which the statute of limitation was tolled. Plaintiff
             failed to re-file her action within the time allowed.

Defendant later filed a motion for judgment on the pleadings based upon the res

judicata defense. On 13 August 2018, the trial court granted defendant’s motion:

“[T]he Court hereby finds that the Plaintiff’s claims are barred by the doctrine of res

judicata. Accordingly, Defendant’s Motion for Judgment on the Pleadings i[s] hereby

GRANTED.” Plaintiff appeals.



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                                  Opinion of the Court



                   II.    Voluntary Dismissal without Prejudice

      Plaintiff contends that the trial court erred in granting defendant’s motion for

judgment on the pleadings.

A.    Standard of Review

      We review the trial court’s ruling on this issue de novo:

                   A trial court’s ruling on a motion for judgment on the
            pleadings is subject to de novo review on appeal. In
            determining whether to grant a motion for judgment on the
            pleadings,
                   the trial court is required to view the facts and
                   permissible inferences in the light most
                   favorable to the nonmoving party. All well
                   pleaded factual allegations in the nonmoving
                   party’s pleadings are taken as true and all
                   contravening assertions in the movant’s
                   pleadings are taken as false. All allegations
                   in the nonmovant’s pleadings, except
                   conclusions of law, legally impossible facts,
                   and matters not admissible in evidence at the
                   trial, are deemed admitted by the movant for
                   purposes of the motion.
            A motion for judgment on the pleadings should not be
            granted unless the movant clearly establishes that no
            material issue of fact remains to be resolved and that he is
            entitled to judgment as a matter of law. For that reason,
            the motion’s function is to dispose of baseless claims or
            defenses when the formal pleadings reveal their lack of
            merit, with a motion for judgment on the pleadings being
            the proper procedure when all the material allegations of
            fact are admitted in the pleadings and only questions of law
            remain. We will now utilize this standard of review to
            determine whether the trial court correctly granted
            Defendant’s motion.

Samost v. Duke Univ., 226 N.C. App. 514, 517–18, 742 S.E.2d 257, 259–60, aff’d per


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                                    Opinion of the Court



curiam, 367 N.C. 185, 751 S.E.2d 611 (2013) (citations, quotation marks, ellipses,

brackets, and footnotes omitted).

B.    Res Judicata

      Defendant argued to the trial court, and the trial court agreed, that plaintiff’s

claim should be dismissed based upon res judicata.

                    Res judicata precludes a second suit involving the
             same claim between the same parties or those in privity
             with them when there has been a final judgment on the
             merits in a prior action in a court of competent jurisdiction.
             A judgment operates as an estoppel not only as to all
             matters actually determined or litigated in the proceeding,
             but also as to all relevant and material matters within the
             scope of the proceeding which the parties, in the exercise of
             reasonable diligence, could and should have brought
             forward for determination. . . .
                    . . . In order to successfully assert the doctrine of res
             judicata, a litigant must prove the following essential
             elements: (1) a final judgment on the merits in an earlier
             suit, (2) an identity of the causes of action in both the
             earlier and the later suit, and (3) an identity of the parties
             or their privies in the two suits.

Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 84, 609 S.E.2d 259, 261–62 (2005)

(citations and quotation marks omitted).

      Plaintiff contends that res judicata is not relevant because “[t]his Appeal

involves the fundamental question of whether North Carolina’s Three Year Statute

of Limitations or Tennessee’s One Year Statute of Limitations governs the instate

action[.]” Defendant contends,

                     Notably, the statute of limitations for negligence


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                                   Opinion of the Court



             claims in Tennessee is one year. Tenn. Code Ann. §28-3-
             104(a)(1)(A). Since the car accident at issue occurred on 3
             July 2015, Plaintiff would have initially had to file her
             negligence claim in Tennessee on or before 3 July 2016.
             However, because the statute of limitations for Plaintiff’s
             claim was tolled for one year after the dismissal order was
             entered, she had until 16 November 2017 to re-file her
             claim. Plaintiff failed to re-file in Tennessee within that
             time period and instead filed the instant action on 5 April
             2018. Plaintiff’s claim was barred in Tennessee when she
             failed to re-file on or before 17 November 2017 because the
             tolling of the statute of limitations lapsed. As such, the
             Tennessee court’s dismissal, filed on 16 November 2016,
             became a final judgment on the merits for purposes of res
             judicata.

      Plaintiff presumes, without citing legal authority, that North Carolina

automatically steps in to apply its laws instead of Tennessee’s law upon re-filing her

claim in North Carolina, and defendant presumes, also without citing legal authority,

that once plaintiff filed her suit in Tennessee she would thereafter be bound by

Tennessee law on this claim even though she voluntarily dismissed that suit without

prejudice and re-filed in North Carolina.        Neither brief directly addresses the

question at the core of this appeal – whether taking a voluntary dismissal without

prejudice in one state requires the law of that state, here specifically the statute of

limitations, to control, even if the same claim is later filed in a different state, which

has a longer statute of limitations. Essentially, this is a question of how a voluntary

dismissal without prejudice operates between states.




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                                   Opinion of the Court



      Tennessee’s case law interprets a Rule 41.01 voluntary dismissal without

prejudice to place the parties in the same position they were in prior to filing the suit:

“When a voluntary nonsuit is taken, the rights of the parties are not adjudicated, and

the parties are placed in their original positions prior to the filing of the suit.”

Himmelfarb v. Allain, 380 S.W.3d 35, 40 (Tenn. 2012). In Cooper v. Glasser, the

plaintiff had sued in California state court and voluntarily dismissed his case without

prejudice. 419 S.W.3d 924, 925 (Tenn. 2013). The plaintiff re-filed the action in a

federal court in Tennessee; thereafter, the plaintiff dismissed that action and re-filed

in Tennessee state court. Id. Unlike North Carolina, Tennessee allows for two

voluntary dismissals without prejudice. See N.C. Gen. Stat. § 1A-1, Rule 41; Tenn.

R. Civ. P. 41.01. The case was appealed to Tennessee’s Supreme Court on the issue

of whether federal or state law should control on claim preclusion, and notably, as

applicable to this case, Tennessee’s Supreme Court stated,

             Tennessee Rule of Civil Procedure 41.01(1) permits a
             plaintiff to voluntarily dismiss his case two times without
             prejudice. Moreover, this Court has previously recognized
             that a voluntary dismissal places the parties in their
             original positions prior to the filing of the suit. We are
             therefore convinced that Tennessee law does not give
             claim-preclusive effect to Mr. Cooper’s second voluntary
             dismissal in federal court.

Cooper, 419 S.W.3d at 927-30 (citation and quotation marks omitted). Thus, the

Tennessee Supreme Court explained that a voluntary dismissal without prejudice

functions to “place the parties in their original positions” and thereby allows them to


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                                       Opinion of the Court



switch between state and federal courts. See id.

       North Carolina’s Rule 41 operates in the same manner since the dismissal puts

the plaintiff in the same position “as if the suit had never been filed[.]” Hous. Auth.

of Wilmington v. Sparks Eng’g, PLLC, 212 N.C. App. 184, 187, 711 S.E.2d 180, 182

(2011) (citation, quotation marks, and brackets omitted).

                      It is well settled that a Rule 41(a) dismissal strips
               the trial court of authority to enter further orders in the
               case. The 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. As a result of the fact that, once 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.

Id. (citations, quotation marks, ellipses, and brackets omitted).

       Under either Tennessee or North Carolina law, a Rule 41.01 or 41 voluntary

dismissal without prejudice leaves the plaintiff “exactly where he or she was before

the action was commenced.” Id. Before this action was commenced, plaintiff was free

to file a lawsuit in either North Carolina or Tennessee. Plaintiff had three years to

file in North Carolina and only one year to file in Tennessee. See N.C. Gen. Stat. § 1-

52(16); Tenn. Code Ann. § 28-3-104(a)(1)(A).               The Tennessee Court’s order of

voluntary dismissal placed no restrictions upon plaintiff upon re-filing her claim.2


2 We do not suggest that the Tennessee court would have had any authority to enter an order of
voluntary dismissal without prejudice with any additional conditions upon plaintiff’s re-filing, but



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                                         Opinion of the Court



We conclude plaintiff was free to re-file her claim in North Carolina as an entirely

new claim, as if she had never filed the first suit, since the dismissal order in

Tennessee operated to leave her in the same position as she was prior to filing the

lawsuit. Defendant’s argument that the Rule 41.01 dismissal without prejudice

operated as a final judgment on the merits in an earlier suit and that plaintiff’s claim

is barred by res judicata is not supported by either Tennessee or North Carolina law.

Nor is Tennessee’s statute of limitations substituted for North Carolina’s based upon

the voluntary dismissal order. We reverse the order of the trial court and remand for

further proceedings. We express no opinion on the merits of plaintiff’s claim or other

defenses raised by defendant other than res judicata, the issue on appeal.

                                        III.    Conclusion

        We conclude the trial court erred in granting defendant’s motion for judgment

on the pleadings based on res judicata. We reverse and remand.

       REVERSED and REMANDED.

       Judges BRYANT and COLLINS concur.




even if this was possible, the order here did not include any conditions. See generally Bechuck v. Home
Depot U.S.A., Inc., 814 F.3d 287, 289 (5th Cir. 2016).

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