Fields v. Irvin H. Whitehouse & Sons Co.

ORR, Judge.

The sole issue on appeal is whether the trial court erred in denying defendant’s motion to dismiss under N.C. Gen. Stat. § 1A-1, Rule 41(d) (1983). For the reasons set forth below, we affirm the trial court’s order.

Under Rule 41(d),

A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action. ... If a plaintiff who once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of costs of the action previously dismissed.the court, upon motion of…