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Robinson v. General Mills Restaurants Inc.6/15/1993
McCRODDEN, Judge.
This case presents two questions: first, whether a voluntary dismissal is effective if, although filed in the correct county, it recites a different county; and second, when, if ever, a trial court may grant a Rule 60 motion for relief from a voluntary dismissal without prejudice. Because of the intricate nature of the procedural questions involved, we must first give a brief recitation of the procedural history of this case.
On 24 January 1989, plaintiffs filed an action for personal injury and loss of consortium, and on 27 December 1989, they filed a notice of voluntary dismissal without prejudice (the first notice). Both of these documents were filed in Forsyth County Superior Court. The notice of voluntary dismissal correctly recited the Forsyth County docket number and the names of the parties but it misstated the county in which the action pended. Nonetheless, the Forsyth County Clerk of Superior Court accepted and filed the notice of dismissal.
When he received his copy of the notice of dismissal, the attorney for defendant Salt Water notified plaintiffs' counsel of the error. As a result, on 24 January 1990, plaintiffs filed a second, corrected notice of voluntary dismissal (the second notice).
On 8 January 1991, more than one year after the filing of the first notice but within one year of the filing of the second notice, plaintiffs refiled this action in Montgomery County Superior Court. Defendants General Mills and Salt Water filed answers which contained Rule 12(b)(6) motions to dismiss based on plaintiffs' failure to refile the action within one year of filing the first notice of voluntary dismissal, a requirement of N. C. Gen. Stat. § 1A-1, Rule 41(a)(1) (1990).
On 11 July 1991, before defendants' motions could be heard in Montgomery County, plaintiffs filed in Forsyth County a motion for relief from the first notice of dismissal, pursuant to N.C. Gen. Stat. § 1A-1, Rule 60. On 2 August 1991, the Forsyth trial court denied the motion and, in its 30 August 1991 written order, stated that "if . . . had the authority to vacate the December 27, 1989 Notice of Voluntary Dismissal, it would, in its discretion grant Plaintiff's Motion for relief from that Notice of Dismissal; however, such authority does not exist." After the 2 August 1991 denial of plaintiffs' motion, the Montgomery County court took judicial notice of the Forsyth County court's decision and concluded that the first notice was valid and that the period of limitation of Rule 41(a) barred plaintiffs' action in Montgomery County. Plaintiffs properly took appeal from both of these decisions.
Plaintiffs' first assertion is that the Montgomery County court erred in concluding that the first notice of dismissal was valid, because the notice, filed in Forsyth County but reciting Richmond County as the county of venue, was fatally defective.
Although we reverse and remand based upon the Forsyth County trial court's action, a review of this issue is necessary to show that plaintiffs' Rule 60 motion in Forsyth County was necessary.
To persuade us that the first notice filed without proper notation of venue was defective, plaintiffs cite Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), and attempt to analogize the instant case with one dealing with a summons. The analogy does not hold. In Everhart, the summons at issue designated Cabarrus County in its caption although the action was actually pending in Davidson County. This Court found the summons fatally defective and incapable of conferring jurisdiction because it failed to notify the party of
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