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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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BAREFOOT V. RULE
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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