Cowperthwait v. Salem Baptist Church

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-374

Filed 05 September 2023

Forsyth County, No. 20 CVS 3011

IAN COWPERTHWAIT, WILLIAM COWPERTHWAIT, and CATHERINE
COWPERTHWAIT, Plaintiffs,

v.

SALEM BAPTIST CHURCH, INC., Defendant.

Appeal by Defendant from order entered 24 September 2021 by Judge Susan

E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals 4 October

2022.

Fox Rothschild LLP, by Troy D. Shelton and Elizabeth Brooks Scherer, and
Smith Law Group, PLLC, by Steven D. Smith and Jonathan M. Holt, for
plaintiffs-appellants.

Bovis, Kyle, Burch & Medlin, LLC, by Brian H. Alligood, for defendant-
appellee.

MURPHY, Judge.

This appeal concerns Plaintiffs’ attempt to take a voluntary dismissal without

prejudice in accordance with Rule 41(a)(1) after the trial court had announced its

ruling involuntarily dismissing the action under Rule 41(b). During the hearing,

Plaintiffs had expressed a contingent desire to take a voluntary dismissal if the trial

court were to allow Defendant’s dismissal for failure to prosecute, but they did not

actually attempt to take a voluntary dismissal until after an adverse ruling was
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Opinion of the Court

rendered. Under these circumstances, we hold that the trial court correctly vacated

Plaintiffs’ attempted Rule 41(a)(1) voluntary dismissal.

However, the trial court could not impose dismissal with prejudice as a

sanction under Rule 41(b) without explaining the prejudice Plaintiffs’ failure to

prosecute caused Defendant and the reason why sanctions short of dismissal would

not suffice. Although we review the trial court’s selection of sanction only for an abuse

of discretion, we hold that the trial court’s explanations for its selection of dismissal

with prejudice as a sanction were manifestly unsupported by reason. Accordingly,

we vacate the portion of the trial court’s order dismissing the case with prejudice and

remand for the trial court’s consideration of which sanction short of dismissal with

prejudice is appropriate.

BACKGROUND

On 9 July 2020, Plaintiffs Ian Cowperthwait and his parents, William and

Catherine Cowperthwait, filed a complaint against Defendant for personal injuries

Ian suffered as a child at Defendant’s summer camp in June 2011. The relevant

background concerns Plaintiffs’ alleged failure to prosecute.

Two weeks before filing the lawsuit, Plaintiffs’ counsel promised Defendant’s

liability insurance carrier he would try to produce copies of Ian’s medical records as

soon as possible. Six weeks later, on 19 August 2020, Defendant’s insurer asked

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Opinion of the Court

Plaintiffs’ counsel again for the medical records. 1 On 10 November 2020, after

Defendant’s insurer received an administrative session notice from the trial court,

the claims handler reiterated the medical records request.

On 9 December 2020, Defendant’s insurer retained counsel which, again,

requested production of the medical records and proposed a joint request to remove

the case from the approaching administrative session calendar. Plaintiffs’ counsel

agreed to remove the case from the court’s administrative calendar and again said he

would try to get the medical records sent over as soon as possible. On 4 January

2021, Defendant’s counsel served a request for statement of monetary relief sought,

formal interrogatories, and requests for production of documents.

Defendant filed its answer, along with interrogatories and document requests,

on 7 January 2021. Plaintiffs requested an extension of time to respond to the

discovery requests on 26 January 2021; and, on 2 February 2021, Defendant’s counsel

again asked Plaintiffs’ counsel to send the medical records. On 12 March 2021,

Defendant’s counsel wrote Plaintiffs’ counsel about the discovery responses—by then

1 While the Record before us contains a copy of the Summons issued on 9 July 2020, the Record

does not satisfy the requirements of N.C. R. App. P. 9(a)(1)(c) as the Summons included does not
include its return. See N.C. R. App. P. 9(a)(1)(c) (2023) (“The printed record in civil actions and special
proceedings shall contain[] . . . a copy of the summons with return, or of other documents showing
jurisdiction of the trial court over persons or property, or a statement showing same[.]”). Further, the
Record is devoid of any proof of service in accordance with N.C.G.S. § 1A-1, Rule 4(j2) of the Complaint
or an acceptance of service. See generally N.C.G.S. § 1A-1, Rule 4(j2) (2021). In our discretion under
N.C. R. App. P. 2, since personal jurisdiction over the Defendant is not at issue in this appeal and was
not raised as one of Defendant’s twelve affirmative defenses in its Answer, we exercise our discretion
to reach the merits of Plaintiffs’ appeal.

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Opinion of the Court

a week overdue, even with the 30-day extension they requested—and said that, if a

response wasn’t given by 19 March 2021, Defendant’s counsel would “understand the

matter to be ripe for a motion to compel and possible additional relief.” On 19 March

2021, Plaintiffs’ counsel responded via email apologizing for the delay and saying he

would have responses to Defendant’s counsel by 24 March 2021.

On 16 June 2021, still having not received responses to discovery requests,

Defendant moved to dismiss the case for failure to prosecute, or, in the alternative,

to compel discovery responses. Plaintiffs eventually responded to the discovery

requests on 15 July 2021, noting numerous objections throughout; however, Plaintiffs

failed to serve a response to Defendant’s request for statement of monetary relief

sought.

On 10 August 2021, the trial court heard Defendant’s Motion to Dismiss or, in

the alternative, Motion to Compel Discovery. At the hearing, Plaintiffs’ counsel offered

to take a voluntary dismissal without prejudice if the court were inclined to dismiss

for failure to prosecute and agreed to have Plaintiffs’ discovery objections struck if

the court deemed them untimely. The court orally announced it would grant

Defendant’s motion and asked Defendant’s counsel to draft a proposed order. The

court did not comment on a second offer by Plaintiffs to take a voluntary dismissal,

nor did the court explicitly state whether the dismissal would be with or without

prejudice.

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Opinion of the Court

After the hearing and before any written order was entered, Plaintiffs’ counsel

filed a Notice of Voluntary Dismissal Without Prejudice. Defendant moved to set aside

the voluntary dismissal, and the trial court held a hearing on the motion on 8

September 2021. The trial court orally granted Defendant’s motion to set aside and,

again, asked Defendant’s counsel to prepare the order. Subsequently, the trial court

entered a written order dismissing the case with prejudice for failure to prosecute,

and Plaintiffs timely appealed.

ANALYSIS

On appeal, Plaintiffs make two arguments: (A) that the trial court erred in

vacating their Rule 41(a)(1) voluntary dismissal without prejudice; and (B) that the

trial court abused its discretion in selecting an involuntary dismissal with prejudice

as Plaintiffs’ sanction under Rule 41(b) of our Rules of Civil Procedure.2 See Meabon

v. Elliott, 278 N.C. App. 77, 80 (“[I]n reviewing the appropriateness of the particular

sanction imposed [under Rule 41(b)], an abuse of discretion standard is proper . . . .”),

disc. rev. denied, 379 N.C. 151 (2021).

A. Vacating Rule 41(a)(1) Voluntary Dismissal

2 In addition to these issues, Defendant argues in its brief that William and Catherine
Cowperthwait’s claims are barred by statute of limitations, seemingly as an alternative ground for
upholding the trial court’s order in accordance with N.C. R. App. P. 28(c) as to William and Catherine
Cowperthwait’s claims. While we agree that the applicable statute of limitations in all likelihood
applies as to William and Catherine’s claims, we devote no further discussion to this argument because
the applicability of any statute of limitations was not the subject of the trial court’s order, nor was it
the basis of the motion to which that order responded; rather, the order on appeal solely concerned the
propriety of the trial court’s previous oral ruling on Defendant’s motion to dismiss for failure to
prosecute under Rule 41 and its vacation of Plaintiffs’ motion for voluntary dismissal.

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Opinion of the Court

As to Plaintiffs’ argument that the trial court erred in vacating their voluntary

dismissal, we disagree. While it is true that Rule 41(a) generally allows a plaintiff to

take voluntary dismissal “without order of court [] by filing a notice of dismissal at

any time before the plaintiff rests his case,” N.C.G.S. § 1A-1, Rule 41(a)(1) (2021), this

general rule is subject to the “limitations [] that the dismissal not be done in bad faith

and that it be done prior to a trial court’s ruling dismissing [the] plaintiff’s claim or

otherwise ruling against [the] plaintiff . . . .” Brisson v. Santoriello, 351 N.C. 589, 597

(2000) (emphasis added).

We have expressly held that “[t]aking a voluntary dismissal based on concerns

about the potential for a future adverse ruling by the [trial court] is permissible.”

Market America, Inc. v. Lee, 257 N.C. App. 98, 106 (2017). However,

[d]ismissing an action after such a ruling has actually been
announced by the court is not. Once the trial court has
informed the parties of its ruling against the plaintiff on
the defendant’s dispositive motion, Rule 41 does not permit
the proceeding to devolve into a footrace between counsel
to see whether a notice of voluntary dismissal can be filed
before the court’s ruling is memorialized in a written order
and filed with the clerk of court. To hold otherwise would
make a mockery of the court’s ruling.

Id. at 106-07 (marks omitted).3

Here, Market America is directly on point. During the hearing on Defendant’s

3 While our research reveals no occasion on which either we or our Supreme Court have
commented on the standard of review for issues such as these, we infer from the scope of the analysis
in Market America that our standard of review in determining whether Plaintiffs’ voluntary dismissal
falls within one of these exceptions is de novo. Id. at 102-108.

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motion to dismiss, Plaintiffs’ counsel stated the following: “[I]f for some reason Your

Honor said that you were going to lean toward taking a dismissal on this, we would

then dismiss without prejudice and have an opportunity to re-file.” This was clearly

a contingent statement, not an expression that Plaintiffs were, at that time, taking a

Rule 41(a)(1) voluntary dismissal. Indeed, Plaintiffs’ counsel later acknowledged the

contingent nature of the earlier statement by remarking just after the trial court

granted Defendant’s motion to dismiss that “[he] asked the Court, if they were doing

that, [Plaintiffs] would take a [voluntary] dismissal.”

This is precisely the type of situation in which the principles discussed in

Market America are designed to prohibit an attempt to take an untimely voluntary

dismissal. If Plaintiffs had been concerned about the prospect of an adverse ruling,

they were entitled to take a voluntary dismissal at any earlier point in the litigation.

Market America, 257 N.C. App. at 106. They were not entitled to wait until the

adverse ruling occurred, then use a voluntary dismissal as a proverbial escape hatch

from whatever consequences that ruling may entail. “To hold otherwise would make

a mockery of the [trial] court’s ruling.” Id. at 106-07 (marks omitted).

B. Trial Court’s Selection of Rule 41(b) Sanction

As to Plaintiffs’ next argument—that the trial court improperly selected

dismissal with prejudice as its sanction under Rule 41(b)—we agree that the trial

court abused its discretion. See Egelhof v. Szulik, 193 N.C. App. 612, 619

(2008) (citing Turner v. Duke Univ., 325 N.C. 152, 165 (1989)) (“[I]n reviewing the

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appropriateness of the particular sanction imposed, an abuse of discretion standard

is proper . . . .”) In relevant part, Rule 41(b) permits an involuntary dismissal “[f]or

failure of the plaintiff to prosecute . . . .” N.C.G.S. § 1A-1, Rule 41(b) (2021). However,

“dismissal with prejudice is the most severe sanction available to the court in a civil

case, and thus, it should not be readily granted.” Lauziere v. Stanley Martin

Communities, LLC, 271 N.C. App. 220, 223 (2020), aff’d, 376 N.C. 789 (2021). “In

general,” then, “a trial court is required to ‘consider lesser sanctions before dismissing

an action under Rule 41(b).’” Wilder v. Wilder, 146 N.C. App. 574, 575 (2001) (quoting

Goss v. Battle, 111 N.C. App. 173, 176 (1993)). Moreover, in particular, we have held

“that the trial court must [] consider lesser sanctions when dismissing a case

pursuant to Rule 41(b) for failure to prosecute.” Id. at 576 (emphasis omitted).

Three factors must inform a trial court’s decision to impose dismissal or some

other sanction under Rule 41(b): “(1) whether the plaintiff acted in a manner which

deliberately or unreasonably delayed the matter; (2) the amount of prejudice, if any,

to the defendant; and (3) the reason, if one exists, that sanctions short of dismissal

would not suffice.” Id. at 578. Here, in compliance with Wilder, the trial court offered

the following conclusions of law in support of its ruling:

1. Rule 41(b) of the North Carolina Rules of Civil Procedure
authorizes a court to dismiss an action for failure to
prosecute or failure to comply with the Rules of Civil
Procedure or any order of court. Before dismissing an
action for failure to prosecute, Courts are to determine the
following three factors: (1) whether the plaintiff acted in a
manner which deliberately or unreasonably delayed the

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matter; (2) the amount of prejudice, if any, to the
defendant; and (3) the reason, if one exists, that sanctions
short of dismissal would not suffice.

2. The Court finds that the Plaintiffs have unreasonably
delayed this matter. Although Ian Cowperthwait has been
admitted to treatment facilities since April of 2021, no
explanation was given for the more than eight months that
passed since the filing of the complaint before April of 2021.
Moreover, the Court notes that Ian’s parents, William and
Catherine Cowperthwait are named Plaintiffs. No
explanation has been offered for their failure to prosecute
the action.

3. The Court finds that the delay has prejudiced the
Defendant. The case is already unusually old by virtue of
the tolling of the statute of limitations applicable to Ian
Cowperthwait due to his minor status (age 11) at the time
of the incident. That incident occurred more than ten (10)
years ago. The additional year-long delay in prosecuting
this action has prejudiced the Defendant by exacerbating
the inordinate amount of time since the incident, during
which witnesses have moved and witness memories have
inevitably faded.

4. Sanctions short of dismissal would be insufficient
because the adverse effects of witness unavailability and
faded memories that inevitably accompany lengthy periods
of time cannot be reversed. Additionally, the Court should
not be expected to carry a personal injury action over
multiple terms due to failure in prosecution.

While we are cognizant of the great deference owed to the trial court under an

abuse of discretion standard, we are confident in this case that such an abuse of

discretion occurred. See Briley v. Farabow, 348 N.C. 537, 547 (1998) (“An abuse of

discretion is a decision manifestly unsupported by reason or one so arbitrary that it

could not have been the result of a reasoned decision.”). Although the trial court

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Opinion of the Court

adequately and reasonably answered whether Plaintiffs acted in a manner which

unreasonably delayed the matter, its rationale for the conclusions that Defendant

suffered prejudice and that sanctions short of dismissal would be insufficient were

based exclusively on the projected impact on witness availability and memory and

the logistical burden on the court. However, no explanation is offered as to why the

marginal impact on witness availability and memory would have been significant

relative to the filing of the complaint, and we fail to see how the case’s “unusual” age

relative to the underlying injury would render the additional time elapsed since the

filing of the complaint especially problematic.4

In substance, the reasons offered by the trial court appear to relate primarily

to the total length of time elapsed since the events giving rise to the claims,

concerning the eleven years since the injury rather than the thirteen months that

had elapsed between the filing of Plaintiffs’ complaint and the trial court’s oral ruling

on Defendant’s Rule 41 motion. However, ten years being available to Ian to file his

complaint after the events giving rise to his claims is a policy decision that has

already been made by the General Assembly through its enactment of N.C.G.S. § 1-

17(a)(1), not a valid discretionary basis on which the trial court may dismiss the

4 If anything, the logical tendency of the case already being old would be to lessen the marginal

impact of further time having elapsed, not increase it. Common sense and experience dictate that that
the level of detail lost in an eleven-year-old memory relative to a ten-year-old memory is far less than
the level of detail lost in, for example, a one-month-old memory relative to a thirteen-month-old
memory.

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action for failure to prosecute. See N.C.G.S. § 1-17(a)(1) (2021) (“A person entitled to

commence an action who is under a disability at the time the cause of action accrued

may bring his or her action . . . within three years next after the removal of the

disability[.]”). Finally, to the extent the trial court also incurred a logistical burden

from the delay, the trial court has offered no rationale or citation to authority

explaining why that reason, standing alone, requires the extreme sanction of

dismissal with prejudice. Cf. Green v. Eure, 18 N.C. App. 671, 672 (1973) (“Expedition

for its own sake is not the goal.”).

CONCLUSION

The trial court’s selection of dismissal with prejudice as the Rule 41(b) sanction

was “manifestly unsupported by reason . . . .” Briley, 348 N.C. at 547. While we

affirm the portion of the trial court’s order vacating Plaintiffs’ Rule 41(a)(1) voluntary

dismissal, we reverse the portion of the trial court’s order dismissing the case with

prejudice and remand for the trial court to further consider which sanction short of

dismissal with prejudice is appropriate for Plaintiffs’ failure to prosecute. See

Lauziere, 271 N.C. App. at 228 (reversing and remanding for further proceedings

where dismissing with prejudice for a failure to prosecute was predicated on an abuse

of discretion).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Judge GORE concurs.

Chief Judge STROUD concurs in result only in part and dissents in part.

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STROUD, Chief Judge, concurring in result only in part, dissenting in part.

I concur with the Majority Opinion in the result only as to the first issue and

agree the trial court did not err in vacating Plaintiffs’ notice of voluntary dismissal

without prejudice, although I specifically dissent from Footnote 2 of the Majority

Opinion. I also dissent as to the second issue. The trial court did not abuse its

discretion by dismissing Plaintiffs’ claim with prejudice under Rule 41(b).

As to Footnote 2, the claims of William and Catherine Cowperthwait were

clearly barred by the statute of limitations. Their claims were for “medical bills and

expenses” for their son’s treatment for his injuries allegedly caused by Defendant’s

negligence, and these claims were not tolled. Defendant properly pled the defense of

expiration of the statute of limitations on their claims, and in the context of this case,

which deals with delay and the failure to bring claims until ten years after the

incident giving rise to the claim, the expiration of the statute of limitation on their

claims, as opposed to Ian’s claim, is certainly a factor the trial court might properly

consider, but I will not address the issue further.

Turning to the Rule 41(b) issue, the Majority Opinion notes four of the trial

court’s conclusions of law provided to support its ruling as to dismissal with prejudice

as a sanction. But the Majority Opinion overlooks the trial court’s four pages of

detailed findings of fact regarding the relevant procedural history of the case.

The trial court’s findings of fact are not challenged on appeal and are thus

binding on this court. See Cohen v. McLawhorn, 208 N.C. App. 492, 498, 704 S.E.2d
 COWPERTHWAIT V. SALEM BAPTIST CHURCH, INC.

Stroud, CJ., concurring in result only in part, dissenting in part

519, 524 (2010) (“Unchallenged findings of fact are presumed to be supported by

competent evidence, and are binding on appeal.” (citations and quotation marks

omitted)). In summary, these findings address the Plaintiffs’ repeated promises to

produce medical records supporting the claim and failures to provide these records as

well as Plaintiffs’ failures to respond to formal discovery requests for the records. The

trial court found Defendant had been attempting to obtain the medical records from

Plaintiffs for over seven years as of the date of the hearing on Defendant’s motion to

dismiss or to compel discovery in 2021. Although some records were produced, the

Plaintiffs never produced a full response to the discovery. The trial court also made

findings regarding Ian Cowperthwait’s arrests on various criminal charges in 2020

and 2021 and his admissions to treatment facilities in 2021 and addressed why these

circumstances did not justify the Plaintiffs’ failure to act during various periods of

time. The trial court made findings regarding Plaintiffs’ failure to produce: “complete

medical records[;]” “any of his [Ian’s] school records[;]” records from “recovery

facilities[;]” “expert witness identification(s)[;]” and “social media content[.]”

We know the trial court was well-aware of the factors it must consider in

determining the appropriate sanction, as the trial court’s first conclusion of law notes

that under Rule 41(b) “[c]ourts are to determine the following three factors:”

(1) whether the plaintiff acted in a manner which
deliberately or unreasonably delayed the matter; (2) the
amount of prejudice, if any, to the defendant; and (3) the
reason, if one exists, that sanctions short of dismissal
would not suffice. Wilder v. Wilder, 146 N.C. App. 574,

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Stroud, CJ., concurring in result only in part, dissenting in part

[578], 553 S.E.2d 425, 428 (2001).

The trial court’s order then clearly addresses all these factors. Specifically, the

trial court concluded that Plaintiffs provided “no explanation” for the delay of “more

than eight months that passed since the filing of the Complaint before April of 2021.”

The trial court concluded “the delay has prejudiced the Defendant” because the “case

is already unusually old by virtue of the tolling of the statute of limitations” based on

Ian’s status as a minor child “at the time of the incident” over “ten (10) years ago.”

The additional year of delay in prosecuting the case “exacerbat[ed] the inordinate

amount of time since the incident, during which witnesses have moved and witness

memories have inevitable faded.”

The Majority rejects these reasons on the grounds they “primarily” relate to

the period of time when the statute of limitations as to Ian’s claim was tolled rather

than the period of time between the filing of the complaint and the ruling on

Defendant’s Rule 41 motion. But a plain reading of the conclusions of law refutes the

Majority’s interpretation. The trial court’s discussion of Plaintiffs unreasonable delay

focuses on how “no explanation was given for the more than eight months that passed

since the filing of the complaint[.]” (Emphasis added.) Similarly, in its conclusion on

prejudice, the trial court noted “[t]he additional year-long delay in prosecuting this

action has prejudiced the Defendant[.]” (Emphasis added.) As a result, the trial court

properly relied on the period of time between the filing of the complaint and the ruling

on Defendant’s Rule 41 motion.

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Stroud, CJ., concurring in result only in part, dissenting in part

Finally, the trial court addressed “the reason, if one exists, that sanctions short

of dismissal would not suffice.” Wilder, 146 N.C. App. at 578, 553 S.E.2d at 428. The

trial court concluded, based on all the unchallenged findings of fact, sanctions short

of dismissal would not suffice because “the adverse effects of witness availability and

faded memories that inevitably accompany lengthy periods of time cannot be

reversed.” Nor should the trial court “be expected to carry a personal injury action

over multiple terms due to failure in prosecution.”

The trial court adequately addressed the Wilder factors. The trial court is not

required to list each potential sanction short of dismissal and explain why it rejected

each one. See Batlle v. Sabates, 198 N.C. App. 407, 421, 681 S.E.2d 788, 798 (2009)

(“[T]he trial court is not required to list and specifically reject each possible lesser

sanction prior to determining that dismissal is appropriate.” (quoting Badillo v.

Cunningham, 177 N.C. App. 732, 735, 629 S.E.2d 909, 911 (2006)).

This court is required to review the trial court’s ruling for abuse of discretion.

See Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998) (“An abuse of

discretion is a decision manifestly unsupported by reason or one so arbitrary that it

could not have been the result of a reasoned decision.”). The trial court made detailed

findings of fact, clearly addressed all three Wilder factors, and in its discretion

concluded that “[s]anctions short of dismissal would be insufficient” based on the facts

and factors the trial court had already addressed. The Majority, had it been in the

place of the trial court, might have made a different discretionary evaluation of the

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Stroud, CJ., concurring in result only in part, dissenting in part

various factors in this case. But this sort of evaluation is actually de novo review, not

a review for abuse of discretion.

The abuse of discretion standard of review is applied to
those decisions which necessarily require the exercise of
judgment. The test for abuse of discretion is whether a
decision “is manifestly unsupported by reason,” White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985), or “so
arbitrary that it could not have been the result of a
reasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330
S.E.2d 450, 465 (1985). The intended operation of the test
may be seen in light of the purpose of the reviewing court.
Because the reviewing court does not in the first instance
make the judgment, the purpose of the reviewing court is
not to substitute its judgment in place of the decision
maker. Rather, the reviewing court sits only to insure that
the decision could, in light of the factual context in which
it is made, be the product of reason.

Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986).

The trial court’s decision is clearly supported by reason and is not arbitrary in

any way. I concur in result only as to the Majority Opinion’s affirming the trial court’s

order vacating the Plaintiffs’ voluntary dismissal, dissent as to Footnote 2, and

dissent as to the Majority Opinion’s ruling on the portion of the trial court’s order

dismissing the case with prejudice.

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