two-dismissal rule in North Carolina

2012Under the two dismissal rule, there are two elements: (1) the plaintiff must have filed the notices to dismiss under Rule 41(a)(l)(i), since this Court has held that the two dismissal rule does not apply where the plaintiffs dismissal is by stipulation or by order of court, Parrish v. Uzzell, 41 N.C.

2003First, the plaintiff must have filed notices to dismiss under Rule 41(a)(1) (since this Court has held that the two dismissal rule does not apply where plaintiffs dismissal is by stipulation or by order of court, Parrish v. Uzzell, 41 N.C.

2016This Court thus reasoned that, "the two dismissal rule ... [was] not applicable to [the lender's] claim for judicial foreclosure as [the lender] could not have brought a claim for judicial foreclosure in the same action as its claims for foreclosure by power of sale." Id. at ----, 763 S.E.2d at 13 (citation omitted).

2016This Court thus reasoned that, "the two dismissal rule ... [was] not applicable to [the lender's] claim for judicial foreclosure as [the lender] could not have brought a claim for judicial foreclosure in the same action as its claims for foreclosure by power of sale." Id. at ----, 763 S.E.2d at 13 (citation omitted).

2019Standard of Review “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In re Will of Jones, 362 N.C. 569, 573 , 669 S.E.2d 572, 576 (2008) (citation and 6 Defendant also filed timely Notice of Appeal from certain orders of the trial court; however, because our disposition renders Defendant’s appeal moot, we do not reach Defendant’s cross appeal. - 13 - EQUITY TR.

2019Standard of Review “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In re Will of Jones, 362 N.C. 569, 573 , 669 S.E.2d 572, 576 (2008) (citation and 6 Defendant also filed timely Notice of Appeal from certain orders of the trial court; however, because our disposition renders Defendant’s appeal moot, we do not reach Defendant’s cross appeal. - 13 - EQUITY TR.

2018Hardison moves for dismissal on the grounds, inter alia, that: Plaintiff’s claims in this action are barred by the two dismissal rule in Rule 41(a)(1); Plaintiff’s direct, individual claims fail because Plaintiff has not alleged facts that would bring his claims under the exceptions as articulated in Barger v. McCoy Hillard & Park, 346 N.C. 650, 658 , 488 S.E.2d 215, 219 (1997); and Plaintiff fails to allege the existence of a civil conspiracy involving Hardison.

2018Hardison moves for dismissal on the grounds, inter alia, that: Plaintiff’s claims in this action are barred by the two dismissal rule in Rule 41(a)(1); Plaintiff’s direct, individual claims fail because Plaintiff has not alleged facts that would bring his claims under the exceptions as articulated in Barger v. McCoy Hillard & Park, 346 N.C. 650, 658 , 488 S.E.2d 215, 219 (1997); and Plaintiff fails to allege the existence of a civil conspiracy involving Hardison.

2016The dispositive issue, as we see it, is whether or not each failure to make a payment by a borrower under the terms of a promissory note and deed of trust constitutes a separate default, or separate period of default, such that any successive acceleration and foreclosure actions on the same note and deed of trust involve claims based upon different transactions or occurrences, thus exempting them from the two dismissal rule contained in Rule 41(a). - -- N.C.App. at ----, 773 S.E.2d at 104 (italics added).

2016After noting that our State's appellate courts had not addressed the issue directly, this Court reviewed related case law from North Carolina as well as the approaches to the two dismissal rule in foreclosure matters in other jurisdictions before holding that "a lender's election to accelerate payment on a note and foreclose on a deed of trust does not necessarily place future payments at issue such that the lender is barred from filing *92 subsequent foreclosure actions based upon subsequent defaults, or periods of default, on the same note." iD. at ----, 773 S.E.2D at 106.

2010“The two-dismissal rule . . . applies only when the plaintiff has twice dismissed an action based on . . . the same claim.” Hopkins v. Ciba-Geigy Corp., 111 N.C.

2010App. 179, 182 , 432 S.E.2d 142, 144 (1993) (citation omitted).

2005In Allen, id. at 522, 588 S.E.2d at 497 , the Court specifically relied upon Country Club of Johnston County, Inc. v. United States Fid. & Guar.

2005In Allen, id. at 522, 588 S.E.2d at 497 , the Court specifically relied upon Country Club of Johnston County, Inc. v. United States Fid. & Guar.

1997See Poore v. Swan Quarter Farms, Inc., 79 N.C.App. 286 , 338 S.E.2d 817 (1986); Kuhn v. Williamson, 122 F.R.D. 192 (E.D.N.C.1988).

1997See Poore v. Swan Quarter Farms, Inc., 79 N.C.App. 286 , 338 S.E.2d 817 (1986); Kuhn v. Williamson, 122 F.R.D. 192 (E.D.N.C.1988).