Rules of Civil Procedure 41.2 (NCI3d) — failure to state claim — dismissal — adjudication upon merits A dismissal of plaintiff's initial complaint for failure to state a claim operated as an adjudication upon the merits in the absence of a contrary specification in the order of dismissal, and the trial court should have allowed defendant's motion to dismiss plaintiff's refiled complaint. N.C.G.S. 1A-1, Rules 12(b)(6) and 41(b).
Am Jur 2d, Judgments 495.
Judge WYNN concurring.
Defendant filed a motion for summary judgment. The trial court granted the motion and dismissed plaintiff's claim. From this judgment plaintiff appeals.
ARNOLD, Judge.
There is a cross assignment of error which is dispositive of this case. Defendant correctly argues that the trial court erred in denying its motion to dismiss plaintiff's refiled complaint. Plaintiff's initial complaint was dismissed for failure to state a claim. See N.C.R. Civ. P. 12(b)(6). "Unless the court in its order for dismissal otherwise specifies," a dismissal for failure to state a claim "operates as an adjudication upon the merits." N.C.R. Civ. P. 41(b). Therefore, we hold defendant's motion to dismiss plaintiff's refiled complaint should have been allowed.
For the reasons stated, judgment is vacated and the matter is remanded for entry of order dismissing the refiled complaint.
Vacated and remanded.
Judge LEWIS concurs.
Judge WYNN concurs with separate opinion.