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COA Says Voluntary Dismissal Without Prejudice Can Convert Interlocutory Order Into Appealable Final Judgment

By Sean E. Andrussier

Today in Goodman v. Holmes & McLaurin the Court of Appeals (COA) declined to dismiss an interlocutory appeal from an order granting and denying in part a Rule 12(b) motion to dismiss. The reason: after the order came down, the plaintiff voluntarily dismissed without prejudice the claims the trial court didn't dismiss, thus converting the interlocutory order into a final judgment, the COA said.

In moving to dismiss the appeal as interlocutory, the defendant naturally relied on Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006) for the proposition that the voluntary dismissal without prejudice of the surviving claims cannot be used to render a partial dismissal order immediately appealable. After all, Hill said, in what appeared to be an alternative holding, that the plaintiffs couldn't convert a partial summary judgment into an appealable final judgment by dismissing the surviving claims without prejudice, because the plaintiffs remained at liberty to re-file their voluntarily dismissed claims. (Hill said, "If we were to entertain an appeal under these circumstances, an appeal would be possible from every interlocutory ruling which disposes of one or more claims as to one or more parties by taking a dismissal without prejudice as to the other parties and claims and later refiling the action. This was never intended by the General Assembly and will not be permitted.") But today the COA held that this portion of Hill was not controlling.

Full post as published by North Carolina Appellate Blog on September 02, 2008 (boomark / email).