Do you always want a quick victory?

The recent Kentucky Court of Appeals decision in Whaley v. Whitaker suggest that the answer to that question is not always yes. The Whaley’s filed suit against Whitaker Bank. Whitaker filed a Motion to Dismiss under CR 12.02. The Whaley’s filed a Notice under Cr 41.01(1) to voluntarily dismiss their claim without prejudice. The trial court ruled for Whitaker on their CR 12.02 motion and dismissed the action with prejudice. The Plaintiff’s appealed. The Court of Appeals noted that the issue of whether the trial court can rule on any motion after a properly filed CR 41.01(1) notice is filed was a question that had not been answered in Kentucky. In looking at the equivalent rule in the Federal Civil Rules the Court of Appeals noted that there was a split among the Circuits on the issue. The Court of Appeals decided that once a proper CR41.01(1) notice is filed, the trial court loses jurisdiction to do anything else in the case, and thus the trial court in this case could not subsequently rule on the pending CR12.02 Motion to Dismiss.

The lesson of the case is that if you think you may have a sure winner based on the plaintiff’s complaint, you might want to go ahead and file an answer (which eliminates the plaintiff’s right to dismiss the action without prejudice pursuant toCR41.01(1)) and then file a motion for judgment on the pleadings or a motion for summary judgment.

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About dknights

Attorney, Kentucky
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