On
Appeal from Superior Court, Rutland Unit, Civil Division
April Term, 2018 Helen M. Toor, J.
Brett
Edmunds of Shechtman Halperin Savage, LLP, Pawtucket, Rhode
Island, Plaintiff-Appellee.
Marjorie Johnston and Kamberleigh Johnston, Pro Ses, Rutland,
Defendants-Appellants.
Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
EATON,
J.
¶
1. Defendants Marjorie Johnston and Kamberleigh Johnston
appeal the voluntary dismissal without prejudice filed by
plaintiff bank Federal National Mortgage Association in this
eviction action. On appeal, defendants argue that because a
prior eviction action filed by bank had been dismissed, this
case should have been dismissed with prejudice. Defendants
also contend that the court erred in denying their motion to
reconsider without a hearing and not dismissing the case on
mootness grounds. We conclude that the effect of the
voluntary dismissal is not ripe until a third action is filed
and affirm.
¶
2. Court records indicate that in June 2016 bank filed an
eviction action against defendant Marjorie Johnston for
property located at 49 Pine Street in Rutland. Fed.
Nat'l Mortg. v. Johnston, No. 302-6-16 Rdcv (Vt.
Super. Ct.). Following entry of a default judgment, the court
found that service had not been properly completed and bank
conceded to vacating the default judgment. Because the time
for service had run, the court dismissed the case without
prejudice in November 2016. In March 2017, bank filed this
eviction action against defendants for property located at 49
Pine Street, unit 2, in Rutland. The complaint alleged that
bank had purchased the property in a foreclosure sale and
that defendants were the former mortgagors and current
occupants of the property. In June 2017, bank filed a notice
of voluntary dismissal, seeking to dismiss the case without
prejudice. At that time, defendants had not filed an answer
or otherwise appeared in the case. The dismissal was entered
on June 23, 2017. On July 10, 2017, defendant Marjorie
Johnston filed a notice of appearance in the case and a
motion to reconsider, arguing that the case should have been
dismissed with prejudice due to the dismissal of the
prior eviction action. Defendant also asserted that instead
of allowing a voluntary dismissal, the court should dismiss
the case with prejudice on mootness grounds because bank had
sold the property prior to seeking a voluntary dismissal. The
trial court denied the motion without a hearing. The court
explained that bank was entitled to dismiss the action
without prejudice because defendants had not yet filed an
answer. The court concluded that the dismissal was without
prejudice because the prior action had been dismissed by
court order rather than by bank's voluntary dismissal.
Defendants appeal.
¶
3. Under Vermont Rule of Civil Procedure 41(a), a plaintiff
can dismiss a case "without order of court" by
filing a notice of dismissal if it is before the adverse
party files an answer. A voluntary dismissal is usually
without prejudice, "except that a notice of dismissal
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court." V.R.C.P.
41(a)(1). This is known as the two-dismissal rule.
¶
4. Defendants contend that the two-dismissal rule applies
here and therefore dismissal should have been entered
"with prejudice."[1] Defendants further assert that
the court erred in denying their motion to reconsider without
a hearing and in denying their request to dismiss the case
with prejudice on mootness grounds. We conclude that
defendants' argument concerning the two-dismissal rule
was not properly before the trial court and will become ripe
only when and if a third action is filed. Therefore, we do
not reach the merits of the claim or defendants' argument
concerning mootness.
¶
5. We begin with the dismissal rule. "The interpretation
of procedural rules is a question of law which we review de
novo." State v. Amidon, 2008 VT 122, ¶ 16,
185 Vt. 1, 967 A.2d 1126. In assessing the meaning of the
rule, we examine the language and purpose of the rule. See
id. (stating that in interpreting procedural rules,
courts employ statutory-construction tools and consider
rule's "plain language and the purpose it was
designed to serve"). Rule 41(a) is entitled
"Voluntary Dismissal; Effect Thereof" and is
separated into paragraphs for dismissal by plaintiff or
stipulation, and by court order. Rule 41(a)(1), the portion
for dismissal by plaintiff, states that a plaintiff
"without order of court" can dismiss an action
"by filing a notice of dismissal" if it is before
the adverse party has served an answer or a motion for
summary judgment. The language of the rule specifically
providing that dismissal is "without order of
court" connotes that as long as a plaintiff makes the
filing and the requisite facts are present-the defendant has
not filed an answer-then the case is dismissed. The rule
language does not imply that any court action is required to
effectuate the dismissal. This is reinforced by the
Reporter's Notes, which explain that voluntary dismissal
is "as of right" if made "before the adverse
party pleads." Reporter's Notes, V.R.C.P. 41. This
voluntary dismissal is without prejudice unless the
two-dismissal exception applies.
¶
6. Because the dismissal is effective upon filing and without
court order, the question is whether the court retains
authority after the dismissal to decide whether the
two-dismissal rule applies. In a different context, this
Court addressed the question of whether it was appropriate
for a court dismissing a case to explain the preclusive
effect of the dismissal. We held that "[i]n general, a
court should not dictate preclusion consequences at the time
of deciding a first action" because it is "the duty
of the second trial court-which knows both what the earlier
finding was and how it relates to a later case-to
independently determine what preclusive effect a prior
judgment may be given." Cenlar FSB v.
Malenfant, 2016 VT 93, ¶ 42, 203 Vt. 23, 151 A.3d
778 (quotations omitted). Similarly, we conclude that the
question of whether the two-dismissal rule applies to a
voluntary dismissal is not ripe until a third action is
filed. First, this preserves the summary nature of the
voluntary dismissal under Rule 41, allowing dismissal as of
right and without court action. Second, it reserves the
question for when it is actually live; if no subsequent
action is filed, then it may not ever be necessary to address
the question of whether the two-dismissal rule applies. If a
third action is filed, at that point, the court can determine
the facts of the prior two actions and decide if the
two-dismissal rule applies.[2]
¶
7. Federal interpretations of analogous Federal Rule of Civil
Procedure 41 agree with this approach. See Amidon,
2008 VT 122, ¶ 16 (explaining that where federal rule is
similar to Vermont rule, "we look to federal cases
interpreting the federal rule for guidance"); see also
Reporter's Notes, V.R.C.P. 41 (stating that Vermont Rule
41 is "substantially similar to" Federal Rule 41).
In Commercial Space Management Co. v. Boeing Co.,
193 F.3d 1074 (9th Cir. 1999), the Court of Appeals for the
Ninth Circuit was faced with a similar question to that
raised here. In that case, the plaintiff filed a first
action, which ended with a stipulation to dismiss. The
plaintiff brought a second action based on the same claims
and filed a voluntary dismissal before an answer was filed
and the case was dismissed without prejudice. One of the
defendants filed a motion under Federal Rule of Civil
Procedure 59(e) to alter or amend, seeking to change the
dismissal to "with prejudice" based on its
assertion that the two-dismissal rule applied. The appeals
court concluded that "whether the second voluntary
dismissal is subject to the two dismissal rule such that it
operates with prejudice as an adjudication upon the merits is
an issue that becomes ripe (and can be determined) only in a
third action, if and when one is filed." Id. at
1076. The court stated: "Because the dismissal is
effective on filing and no court order is required, the
filing of a notice of voluntary dismissal with the court
automatically terminates the action as to the defendants who
are the subjects of the notice." Id. at 1077
(quotation and alteration omitted). The court further
explained that because the trial court lacks authority to
condition a voluntary dismissal after it is filed, the
application of the two-dismissal rule must be deferred to a
third action. Id. at 1080. Other
courts[3] have agreed that the issue of whether the
two-dismissal rule applies "is an issue that becomes
ripe and can be determined only in a third action, if and
when one is filed." E. Surette, Construction and
Application of Two-Dismissal Rule Under Federal Law, 10
A.L.R. Fed. 3d Art. 4, § 11 (2016) (citing cases).
¶
8. Defendants claim that the trial court erred in denying
their motion to reconsider and in adjudicating it without a
hearing. The trial court has discretion to decide a motion to
reconsider and may dispose of such a motion without a
hearing. See Rubin v. Sterling Enters., Inc., 164
Vt. 582, 588, 674 A.2d 782, 786 (1996) ("Although
generally favored, hearings are not mandatory for V.R.C.P. 59
motions, particularly where the moving party has failed to
show prejudice from the lack of a hearing."). Given that
the motion raised application of the two-dismissal rule and
our holding that the application of the two-dismissal rule
was not a matter within the court's authority, we
conclude that defendants cannot demonstrate prejudice from
the lack of a hearing or that the court erred in denying them
relief.
¶
9. Defendants' final argument is that the case should
have been dismissed as moot because bank no longer owned the
property when it filed the dismissal. Because the voluntary
dismissal had already been entered, the court was without
authority to consider defendants' subsequent request to
dismiss the matter on other grounds. See Am. Soccer Co.
v. Score First Enters., 187 F.3d 1108, 1112 (9th Cir.
1999) (holding that plaintiff has right to voluntarily
dismiss without prejudice if no answer is filed ...