TELEPHONIC, INC. V. MONTGOMERY PLAZA CO., 1975-NMCA-040, 87 N.M. 407, 534 P.2d
1119 (Ct. App. 1975)
TELEPHONIC, INC., and Sailor J. Kennedy,
Plaintiffs-Appellees,
vs.
MONTGOMERY PLAZA COMPANY, INC., Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1975-NMCA-040, 87 N.M. 407, 534 P.2d 1119
George A. Dubois, Bruce R. Muir, Branch,
Dickson, Dubois & Wilson, P.A., Albuquerque, for defendant-appellant.
Quincy D. Adams, Adams & Foley,
Albuquerque, for plaintiffs-appellees.
LOPEZ, J., wrote the opinion. WOOD, C.J.,
and HERNANDEZ, J., concur.
{1} The plaintiffs sued the
defendant for breach of contract and prayed for compensatory and punitive
damages. Notice of dismissal with prejudice was then filed by plaintiffs.
Section 21-1-1(41)(a), N.M.S.A. 1953 (Repl. Vol. 4). A motion to correct the
notice of dismissal because of clerical error was filed. Section 21-1-(60)(a),
N.M.S.A. 1953 (Repl. Vol. 4). Answer and counterclaim for malicious prosecution
were then filed by the defendant. Plaintiffs next filed a motion to dismiss
their own complaint without prejudice and to dismiss defendant's counterclaim.
The lower court dismissed plaintiffs' complaint without prejudice and dismissed
defendant's counterclaim. Defendant appeals. We affirm and correct the
dismissal of the counterclaim to read "without prejudice."
{2} Defendant has four points
for reversal of which his first, relative to Rule 41(a) of the New Mexico Rules
of Civil Procedure, supra, is dispositive of this appeal.
{3} Rule 41(a), supra, states
as follows:
"Rule 41. Dismissal of actions.
"(a) Voluntary dismissal -- Effect thereof.
"(1) By Plaintiff -- By Stipulation. Subject to the
provisions of Rule 23(c) and of any statute, an action may be dismissed by the
plaintiff without order of the court (i) by filing a notice of dismissal at any
time before service of the answer, or (ii) by filing a stipulation of dismissal
signed by all parties who have appeared generally in the action.
"(2) By Order of Court. Except as provided in paragraph
(1) of this subdivision of this rule, an action shall not {*409}
be dismissed at the plaintiff's instance save upon order of the court and
upon such terms and conditions as the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the service upon him of the plaintiff's
motion to dismiss, the action shall not be dismissed against the defendant's
objection unless the counterclaim can remain pending for independent
adjudication by the court. Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice."
{4} The last motion filed by
the plaintiffs was pursuant to Rule 41(a)(2), supra. The order of the lower
court entered as a result of this motion is the basis for this appeal. The
plaintiffs had a right, under subsection (41)(a)(1)(i), supra, before the
answer and counterclaim were filed, to dismiss their complaint. The undisputed
evidence on the record indicates that the error was "clerical" in
that the phrase "with prejudice" was substituted for "without
prejudice" at some point between counsel's dictation of the notice and the
final draft. Counsel acknowledges that he did not catch the mistake prior to
filing it as typed.
{5} If the first notice of
dismissal had been correct, a dismissal without prejudice of the plaintiff's
suit would have left the parties in a situation the same as though the suit had
never been filed. See McCuistion v. McCuistion,
73 N.M. 27,
385 P.2d 357 (1963).
Upon a voluntary dismissal, the answer of the defendant would have been
vitiated and the counterclaim would have annulled. See A. B. Dick Co. v. Marr,
197 F.2d 498 (2d Cir. 1952); Ratner v. Bakery and Confectionery Workers Int.
U., 129 U.S. App.D.C. 305, 394 F.2d 780 (1968).
{6} After the filing of the
erroneous notice of dismissal with prejudice, the plaintiffs filed a motion
pursuant to Rule 60(a) of the New Mexico Rules of Civil Procedure, supra, to
correct the notice. Both the notice of dismissal with prejudice and this motion
were filed before defendant's answer and counterclaim. Two affidavits were
attached to the Rule 60(a), supra, motion stating that the plaintiffs' attorney
had been instructed by plaintiff to dismiss without prejudice and that the
attorney dictated the notice to read "without prejudice", that it was
erroneously transcribed by a secretary as "with prejudice", and
subsequently filed as such in the district court. This explanation is not
disputed by the defendant.
{7} When the facts upon which
the court acts on a motion to correct a clerical error are undisputed and only
one conclusion can be drawn from them, we are not bound by the order made
below. Estate of Burnett, 11 Cal.2d 259, 79 P.2d 89 (1938).
{8} Under Rule 60(a), supra,
courts have the power and the duty to correct clerical errors in orders which
are issued due to inadvertence or mistake. American Trucking Assos. v. Frisco
Transp. Co., 358 U.S. 133, 79 S. Ct. 170, 3 L. Ed. 2d 172 (1958). Compare
United States v. Kenner, 455 F.2d 1 (7th Cir. 1972).
{9} We conclude, based upon
the uncontradicted evidence of the record, that the lower court not only had
the right but the duty to correct the clerical mistake in plaintiffs' original
notice of dismissal with prejudice to read "without prejudice."
Compare Herrera v. Springer,
85 N.M. 6,
508 P.2d 1303 (Ct. App.1973), reversed
on other grounds,
85 N.M. 201,
510 P.2d 1072 (1973). See Silva v. Second
Judicial Dist., 57 Nev. 468, 66 P.2d 422 (1937). See also E. Clemens Horst Co.
v. Federal Mutual Liability Inc. Co., 22 Cal. App.2d 548, 71 P.2d 599 (1937).
{10} We believe that the
lower court erred in not granting the plaintiffs' motion to correct the notice
of dismissal with prejudice.
{11} The lower court's order
dismissing plaintiffs' complaint is affirmed, as reaching the right result for
the wrong reason, but to make clear the nature of the dismissal of the
counterclaim, we amend the order dismissing defendant's counterclaim to read
"without prejudice." Scott v. Murphy Corporation,
79 N.M. 697,
448
P.2d 803 {*410} (1968); H. T. Coker
Const. Co. v. Whitfield Transp., Inc.,
85 N.M. 802,
518 P.2d 782 (Ct.
App.1974). See Gonzales v. Oil, Chemical and Atomic Works Int. U.,
77 N.M. 61,
419 P.2d 257 (1966).
WOOD, C. J., and HERNANDEZ, J., concur.