Civil Procedure. Court affirms voluntary dismissal by plaintiff, despite “two-dismissal “ rule, because the effect of the dismissal is not ripe until a third action is filed.

Federal National Mortgage Association v. Johnston, 2018 VT 51 [filed May 4, 2018] 

EATON, J. 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.

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.

Because the dismissal is effective upon filing and without court order, there is a question whether the court retains authority after the dismissal to decide whether the two-dismissal rule applies.  We have held in a different context, that “[i]n general, a court should not dictate preclusion consequences at the time of deciding a first action.”

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. 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.

Medical malpractice. Strict compliance with certificate-of -merit statute. Statute of limitations not tolled.

Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 [5/18/2018]

SKOGLUND, J. This is a consolidated appeal involving two successive malpractice actions brought by the executor of a decedent’s estate against the clinic where the decedent received treatment prior to her death and against the physician assistant who treated her. The trial court dismissed the first action because plaintiff failed to file the certificate of merit required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely. We conclude that the trial court properly dismissed both cases and therefore affirm.

Plaintiff contends that we should reverse because unlike the plaintiff in McClellan, he “substantially complied” with § 1042(a) by investigating the claim and providing defendants with an expert report that was equivalent to the certificate of merit prior to filing suit. We make explicit what we implicitly held in McClellan, namely, that § 1042’s requirement that a certificate of merit be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is “entirely omitted from the original complaint,” dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. McClellan, 2017 VT 13, ¶ 25. Strict enforcement of the certificate of merit requirement and the statute of limitations does not offend the Common Benefits Clause.

We also reject plaintiff’s argument that dismissal for failure to file a certificate of merit is a dismissal for lack of subject matter jurisdiction, and therefore the statute of limitations was tolled by 12 V.S.A. § 558. Because the failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action, 12 V.S.A. § 558 does not save plaintiff’s claim, and the trial court properly dismissed the second action.