Department of Transportation v. Combs

BRASWELL, Judge.

We are called upon to determine the effect of a defendant’s unusual and novel procedure of taking a “voluntary dismissal without prejudice” to the plaintiffs action in a highway condemnation case when the pleadings of the defendant did not raise any counterclaim, cross-claim or third-party claim. To say “he can’t do that!” states a truism of civil procedure. To reach an understanding of the consequences necessitates further examination into the proceedings below.

On 8 June 1981 the North Carolina Department of Transportation filed suit seeking to condemn and appropriate certain…