In issue of first impression COA holds Notice of voluntary dismissal without prejudice denies court of further jurisdiction unless answer or motion for summary judgment filed: WHALEY v. WHITAKER BANK, INC. (COA 5/2/2008)

WHALEY V. WHITAKER BANK, INC.
CIVIL PROCEDURE:  Notice of voluntary dismissal without prejudice denies court of further jurisdiction unless answer or motion for summary judgment filed

2007-CA-001451 534
PUBLISHED: VACATING AND REMANDING
PANEL: WINE PRESIDING; ACREE, KNOPF CONCUR
SCOTT COUNTY
DATE RENDERED: 5/2/2008

CA vacates and remands order granting motion to dismiss under CR 12.02.

Appellants filed a notice of voluntary dismissal without prejudice under CR 41.01(1) while appellee’s CR 12.02 motion to dismiss (with prejudice) was pending. CR 41.01 allows a plaintiff to voluntarily dismiss "before service by the adverse party of an answer or of a motion for summary judgment…." Appellee’s CR 12.02 motion presented matters outside the pleadings to be considered, so the TC considered this motion as a motion for SJ (at a hearing conducted after appellants’ CR 41.01 notice was filed) and granted dismissal with prejudice.

In an issue of first impression, COA holds that the TC erred by granting the CR 12.02 motion because the TC lost jurisdiction immediately upon filing of the CR 41.01 notice. "Once the plaintiff gives his notice, the lawsuit is no more."

Digested by John E. Hamlet

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