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Wrenn v. Maria Parham Hospital12/7/1999
nt. Even if the voluntary dismissal had not recited that it was "with prejudice," it was the second dismissal of plaintiff's claims against Dr. Byrd and would have operated as an adjudication on the merits. "Such a dismissal is with prejudice, and it operates as a Disposition on the merits and precludes subsequent litigation in the same manner as if the action had been prosecuted to a full adjudication against the plaintiff." Graham v. Hardee's Food Systems, 121 N.C. App. 382, 384, 465 S.E.2d 558, 559-60 (1996); see Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974); N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (1990) ("a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this state . . . an action based on or including the same claim ").
In Barnes, decided after the enactment of the Uniform Act, the plaintiff contended that he was injured by the negligence of defendant McGee while McGee was acting as a servant of defendant YMCA. At trial, the trial court allowed the YMCA's motion for a directed verdict, and dismissed with prejudice the action against McGee. On appeal, this Court held that a "' ismissal with prejudice, unless the court has made some other provision, is subject to the usual rules of res judicata and is effective not only on the immediate parties but also on their privies.'" Barnes, 21 N.C. App. at 289, 204 S.E.2d at 205 (quoting 9 Wright and Miller, Federal Practice and Procedure, § 2367, pp. 185-86) (emphasis in original). Thus, " judgment on the merits in favor of the employee precludes any action against the employer where, as here, the employer's liability is purely derivative." Id.
This Court decided Graham following the Supreme Court decisions in Yates and Harris. In Graham, the female plaintiff sued Hardee's and its employee Rogers, based on sexual advances allegedly made by Rogers. The plaintiff dismissed her original complaint without prejudice, and then refiled her claim. Hardee's moved for summary judgment, following which the plaintiff again voluntarily dismissed her claim against Rogers. The trial court then granted Hardee's motion for summary judgment, and the plaintiff appealed. This Court held that "each of these claims [against Hardee's] as presented by plaintiff is dependant upon the alleged tortious conduct of Rogers. Since Rogers has been adjudicated not liable for the alleged conduct as a result of plaintiff's second voluntary dismissal of her claims against him, the remaining claims against Hardee's must also fail." Graham, 121 N.C. App. at 385, 465 S.E.2d at 560.
In the case before us, the dismissal against Dr. Byrd was a second dismissal of plaintiff's claims against him and therefore operated as an adjudication on the merits under the express language of Rule 41 of the Rules of Civil Procedure and our holding in Barnes. Furthermore, the voluntary dismissal itself specifically stated that it was with prejudice. Under the reasoning of our Court in Graham, the dismissal with prejudice as to Dr. Byrd operated as a Disposition on the merits, and "precludes subsequent litigation [against defendant Maria Parham Hospital, Inc.] in the same manner as if the action had been prosecuted to a full adjudication against the plaintiff." Id. at 384, 465 S.E.2d at 559-60. The trial court did not err in its grant of summary judgment in favor of defendant, and this assignment of error is overruled.
Affirmed.
Judges WYNN and EDMUNDS concur.
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