
    David LYNN v. Joe NELSON, Nelson Nash, Mike Patterson, Ricky Reeves, and Larry Dean, d/b/a NSA Training Center.
    2940225.
    Court of Civil Appeals of Alabama.
    May 26, 1995.
    Rehearing Denied June 30, 1995.
    
      Jacob A. Walker III of Walker, Hill, Adams, Umbach, Meadows & Walton, Opeli-ka, for Appellant.
    Theresa S. Dean, Opelika, for Appellees.
   L. CHARLES WRIGHT, Retired Appellate Judge.

David Lynn entered into a joint moneymaking venture with the appellees. They rented office space. Lynn signed the lease, as did the other joint venturers. Lynn eventually left the group and returned to Lee County. It was his understanding that he would not owe any money on the lease once he left. His joint venturers understood otherwise. They filed an action in the Small Claims Court of Jefferson County in an effort to collect the amount of money owed by Lynn on the lease. The action was transferred to Lee County. Once in Lee County, the appellees requested that the action be dismissed. The request was granted.

The appellees again filed an action against Lynn in the Jefferson County Small Claims Court. The action was transferred to Lee County. The ease was set for a hearing. At the time of the hearing, the appellees filed a motion to transfer the ease to the circuit court. Due to the wording in the original action, the motion was denied. The appellees then made an oral motion for dismissal in order to file an action in the circuit court.

The appellees filed an action in the Circuit Court of Lee County. Following a hearing, the trial court found in favor of the appellees and awarded damages accordingly.

Lynn appeals and asserts that “[pjursuant to Rule 41(a) of the Alabama Rules of Civil Procedure, the Circuit Court of Lee County, Alabama, did not have jurisdiction in this cause due to the prior dismissals of the same suit by the Appellees.” According to the record, the dismissals were entered by order of the court, without condition. Such dismissals apparently fall within Rule 41(a)(2) and are without prejudice.

Lynn cites no authority, persuasive or otherwise, other than Rule 41(a), Ala.R.Civ.P., to support his argument. We, therefore, decline to address it further. William Wilson Enterprises, Inc. v. Napier, 395 So.2d 89 (Ala.Civ.App.1981).

The judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.

AFFIRMED.

ROBERTSON, P.J., and THIGPEN, YATES, and MONROE, JJ., concur.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

Because I would reverse the judgment of the trial court, I must respectfully dissent. The majority opinion states that “Lynn cites no authority, persuasive or otherwise, other than Rule 41(a), Ala.R.Civ.P., to support his argument. We, therefore, decline to address it further.” As discussed below, Rule 41(a) is relevant to his argument.

Lynn argues on appeal that Nelson was precluded from filing the action in the trial court once he had dismissed the action on two previous occasions. Rule 41(a)(1), Ala. R.Civ.P., states in pertinent part:

“[A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is 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 of Alabama, or of the United States, or of any state, an action based on or including the same claim.”

(Emphasis added.)

I disagree with the majority that the dismissals of the two actions in Lee District Court were subject to Rule 41(a)(2). The record does not indicate that Lynn ever filed an answer or a motion for summary judgment in either action before Nelson voluntarily dismissed the actions. Lynn did file a motion to transfer venue after Nelson filed each action in the Jefferson Small Claims Court; however, a motion to transfer venue is not an answer which would preclude a dismissal pursuant to Rule 41(a)(1). Littman v. Bache & Co., 252 F.2d 479 (2nd Cir.1958).

I also disagree with the majority that the second dismissal is without prejudice. Although the case action summary indicates that the Lee District Court dismissed the second action “without prejudice,” that notation is of no effect, because Rule 41(a)(1) explicitly provides that the second dismissal of the same action is an “adjudication upon the merits,” and that second dismissal is with prejudice. Nelson testified that all three actions regarded money Lynn allegedly owed on a lease. Rule 41(a)(1) precludes Nelson from filing the same action in the trial court after that action was dismissed on two previous occasions. Therefore, the trial court had no jurisdiction to enter the judgment against Lynn, and I would reverse its judgment.  