(Ga. L. 1966, p. 609, § 41; Ga. L. 1982, p. 784, §§ 1, 2; Ga. L. 1984, p. 597, § 2; Ga. L. 1985, p. 546, § 1; Ga. L. 1986, p. 816, § 1; Ga. L. 2003, p. 820, § 4.)
Cross references.- Dismissal and renewal of actions generally, § 9-2-60 et seq.
Dismissal, Uniform Superior Court Rules, Rule 14.
Dismissal of actions in probate court, Uniform Rules for the Probate Courts, Rule 12.
Editor's notes.- Ga. L. 2003, p. 820, § 9, not codified by the General Assembly, provides that this Act "shall apply to all civil actions filed on or after July 1, 2003."
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 41, see 28 U.S.C.
Law reviews.- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For note discussing the requirement that an adjudication be on the merits for the principles of res judicata to apply, see 11 Ga. L. Rev. 929 (1977). For note, "Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney upon the Client," see 22 Ga. L. Rev. 195 (1987). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 28 (2003). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 3-510 are included in the annotations for this Code section.
Inapplicable to criminal cases.
- Civil Practice Act, O.C.G.A. Ch. 11, T. 9, under which O.C.G.A. § 9-11-41 is included provides for dismissals with prejudice of only civil cases, and the trial court had no authority to dismiss a charge of criminal trespass. State v. Luttrell, 207 Ga. App. 116, 427 S.E.2d 95 (1993).
Dismissal of party during pretrial procedure.
- While the pretrial procedure under O.C.G.A. § 9-11-16 has broad general application, the method for dismissing an action is specifically provided under O.C.G.A. § 9-11-41, and the dismissal of a party is not within the purview of the pretrial procedure. Georgia Am. Ins. Co. v. Mills, 183 Ga. App. 707, 359 S.E.2d 697 (1987).
Dismissal without prejudice does not operate as an adjudication on the merits. Gillis v. Goodgame, 199 Ga. App. 413, 404 S.E.2d 815 (1991), rev'd on other grounds, 262 Ga. 117, 414 S.E.2d 197 (1992).
Options available to the court.
- O.C.G.A. § 9-11-41 allows the court to dismiss the action and restrict the dismissal to one without prejudice; however, the trial court also may elect to go forward with the trial of the case, and the judgment that is entered following such a trial is not a dismissal, but an adjudication upon the merits. Accolades Apts., L.P. v. Fulton County, 242 Ga. App. 214, 528 S.E.2d 268 (2000).
Requirement of objection to dismissal did not apply in magistrate court.
- Trial court erred in relying on O.C.G.A. § 9-11-41 in finding that a tenant failed to object to the landlord's voluntary dismissal of its magistrate court dispossessory action, resulting in the dismissal of the tenant's counterclaim to that action; the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., did not apply to magistrate court suits, O.C.G.A. §§ 15-10-40 and15-10-42, and there was nothing to indicate that the magistrate court opted to follow the Civil Practice Act as permitted by O.C.G.A. § 15-10-44. Howell v. Beauly, LLC, 337 Ga. App. 898, 789 S.E.2d 214 (2016).
Invited error.
- When a corporation sought to dismiss an administrator's wrongful death action because its caption bore the name of a nonexistent court, and the trial court later dismissed the action after the administrator filed a notice of voluntary dismissal, there was no basis for reversal; the trial court adopted the corporation's reasoning as a basis for dismissal and thus any error was invited by the corporation. Video Warehouse, Inc. v. Newsome, 285 Ga. App. 786, 648 S.E.2d 124 (2007).
Adding or dropping less than all parties.
- When less than all of the plaintiff's claims are added or dropped, the additions and deletions are not dismissals and renewals governed by O.C.G.A. §§ 9-2-61(a) and9-11-41(a), but simply amendments governed by the liberal amendment rules of O.C.G.A. § 9-11-15(a) and (c). Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).
O.C.G.A. § 9-11-41 does not provide for the voluntary, unilateral dismissal of a party's claims against some but not all of the parties to the action. Manning v. Robertson, 223 Ga. App. 139, 476 S.E.2d 889 (1996).
Plaintiff's attempted dismissal of one defendant was ineffective in the absence of a ruling by the trial court. Flemister v. Hopko, 230 Ga. App. 93, 495 S.E.2d 342 (1998).
Multiple voluntary dismissals did not bar suit based on claims arising later.
- Trial court erred by dismissing a mortgagor's breach of contract claims against the lender based on res judicata for voluntarily dismissing two prior federal court cases relating to the security deed because the allegations asserted in the complaint arose from events occurring after the dismissal of the federal actions and were, therefore, not barred by res judicata. Humphrey v. JP Morgan Chase Bank, N.A., 337 Ga. App. 331, 787 S.E.2d 303 (2016).
Dismissal erroneously granted.
- Trial court erred by dismissing a father's contempt action because the final consent order had not been entered within the five-year rule under O.C.G.A. § 9-2-60(b) because the legitimation, custody, and support matter had been resolved by consent and all that remained was entry of the order; thus, the case presented an exception to the five-year rule. Ga. Dep't of Human Servs. v. Patton, 322 Ga. App. 333, 744 S.E.2d 854 (2013).
Recovery of expenses.
- Definition of court costs under O.C.G.A. § 9-11-41(d) does not include the witness fees, court reporting fees, and copying expenses that a prevailing party in a federal action is allowed to recover. Prison Health Servs. v. Mitchell, 256 Ga. App. 537, 568 S.E.2d 741 (2002).
Attorney fee award after voluntary dismissal proper.
- In awarding attorney fees to the appellees under O.C.G.A. §§ 9-11-37 and9-15-14 after an appellant voluntarily dismissed the appellant's lawsuit, the trial court did not violate the legislative intent behind O.C.G.A. § 9-11-41(a). The appellees incurred needless expense because of the appellant's discovery violations, and the litigation was unnecessarily expanded prior to the appellant's voluntary dismissal. Hart v. Redmond Reg'l Med. Ctr., 300 Ga. App. 641, 686 S.E.2d 130 (2009).
Dismissal pursuant to five-year rule.
- Trial court properly dismissed law clients' malpractice action pursuant to the "five-year rule," as there was no written order entered in the trial court for at least five years; that period was not tolled during the pendency of an appeal because the trial court had jurisdiction to proceed with at least part of the case. Paul v. Smith, Gambrell & Russell, 323 Ga. App. 447, 746 S.E.2d 739 (2013).
Dismissal erroneous for failure to pay fees.
- Since the masseur did not dismiss the prior action against a defendant, but rather, the trial court granted summary judgment to the defendant in the prior action and then awarded the defendant attorney fees, the trial court erred in dismissing the instant complaint for failure to pay the fees awarded in the prior action pursuant to O.C.G.A. § 9-11-41(d). Muhammad v. Massage Envy of Ga., Inc., 322 Ga. App. 380, 745 S.E.2d 650 (2013).
Cited in Bailey v. Louisville & N.R.R., 117 Ga. App. 185, 160 S.E.2d 245 (1968); Underwood v. United States Fid. & Guar. Co., 118 Ga. App. 847, 165 S.E.2d 874 (1968); Lovett v. Lovett, 225 Ga. 251, 167 S.E.2d 590 (1969); Todd v. Waddell, 120 Ga. App. 20, 169 S.E.2d 351 (1969); Wilson v. Matthews, 120 Ga. App. 284, 170 S.E.2d 346 (1969); Cochran v. Cheney, 121 Ga. App. 449, 174 S.E.2d 234 (1970); Maslia v. Hall, 121 Ga. App. 740, 175 S.E.2d 48 (1970); Godfrey v. Ramsey, 121 Ga. App. 767, 175 S.E.2d 127 (1970); Carver v. Cranford, 122 Ga. App. 100, 176 S.E.2d 272 (1970); Norman v. Walker, 123 Ga. App. 413, 181 S.E.2d 310 (1971); Cook v. Peeples, 227 Ga. 473, 181 S.E.2d 375 (1971); McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971); Control Data Corp. v. Carley, 124 Ga. App. 62, 183 S.E.2d 71 (1971); Arrendale v. Arrendale, 228 Ga. 295, 185 S.E.2d 83 (1971); Morton v. Retail Credit Co., 124 Ga. App. 728, 185 S.E.2d 777 (1971); Shonson v. Bottomy, 126 Ga. App. 691, 191 S.E.2d 618 (1972); Ben Nuckolls Fin. Co. v. Grubbs, 127 Ga. App. 44, 192 S.E.2d 408 (1972); Shonson v. Bottomy, 230 Ga. 188, 196 S.E.2d 135 (1973); Southern Concrete Prods. Co. v. Consolidated Equities Corp., 128 Ga. App. 698, 197 S.E.2d 798 (1973); Zaun v. Nobles, 128 Ga. App. 846, 198 S.E.2d 326 (1973); Garrett v. Panacon Corp., 130 Ga. App. 641, 204 S.E.2d 354 (1974); Baitcher v. Louis R. Clerico Assocs., 132 Ga. App. 219, 207 S.E.2d 698 (1974); Dollar v. Webb, 132 Ga. App. 811, 209 S.E.2d 253 (1974); Rothstein v. Brooks, 133 Ga. App. 52, 209 S.E.2d 674 (1974); Empire Banking Co. v. Martin, 133 Ga. App. 115, 210 S.E.2d 237 (1974); Gulf Oil Corp. v. Pentecost, 133 Ga. App. 651, 211 S.E.2d 908 (1975); Anderson v. Universal C.I.T. Credit Corp., 134 Ga. App. 931, 216 S.E.2d 719 (1975); Trulove v. Trulove, 233 Ga. 896, 213 S.E.2d 868 (1975); Moore v. Tootle, 134 Ga. App. 232, 214 S.E.2d 184 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Riden v. Commercial Credit Plan, 136 Ga. App. 191, 220 S.E.2d 746 (1975); American San. Servs. v. EDM of Texas, Inc., 136 Ga. App. 200, 221 S.E.2d 66 (1975); Culbreth v. Culbreth, 236 Ga. 583, 224 S.E.2d 417 (1976); Holcomb v. Trax, Inc., 138 Ga. App. 105, 225 S.E.2d 468 (1976); Positions, Inc. v. Steel Deck & Siding Co., 138 Ga. App. 200, 225 S.E.2d 769 (1976); Nix v. Nix, 138 Ga. App. 754, 227 S.E.2d 481 (1976); Hobgood v. Neely, 139 Ga. App. 135, 228 S.E.2d 30 (1976); Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448, 228 S.E.2d 403 (1976); American San. Servs., Inc. v. EDM of Tex., Inc., 139 Ga. App. 662, 229 S.E.2d 136 (1976); McLanahan v. Keith, 140 Ga. App. 171, 230 S.E.2d 57 (1976); Patterson v. Professional Resources, Inc., 140 Ga. App. 315, 231 S.E.2d 88 (1976); Roach-Russell, Inc. v. A.B.R. Metals & Serv., Inc., 140 Ga. App. 307, 231 S.E.2d 114 (1976); Peachtree Mtg. Corp. v. Northside Realty Assocs., 140 Ga. App. 541, 231 S.E.2d 350 (1976); Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81, 232 S.E.2d 575 (1977); Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977); West v. Griggs, 144 Ga. App. 285, 241 S.E.2d 26 (1977); Tarpley v. Hawkins, 144 Ga. App. 598, 241 S.E.2d 480 (1978); Mercury Rising, Inc. v. Gwinnett Bank & Trust Co., 144 Ga. App. 502, 241 S.E.2d 620 (1978); Carter v. Carter, 241 Ga. 335, 245 S.E.2d 292 (1978); City of Atlanta v. Rosebush, 146 Ga. App. 99, 245 S.E.2d 440 (1978); Brock v. Little, 241 Ga. 549, 246 S.E.2d 668 (1978); Dehco, Inc. v. State Hwy. Dep't, 147 Ga. App. 476, 249 S.E.2d 282 (1978); State v. Cooperman, 147 Ga. App. 556, 249 S.E.2d 358 (1978); Tingle v. Georgia Power Co., 147 Ga. App. 775, 250 S.E.2d 497 (1978); Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560 (1978); Mullins v. Oden & Sims Used Cars, Inc., 148 Ga. App. 250, 251 S.E.2d 65 (1978); Jones v. Atlanta Hous. Auth., 148 Ga. App. 605, 252 S.E.2d 19 (1979); Head v. Walker, 243 Ga. 108, 252 S.E.2d 440 (1979); Walsey v. American Fletcher Nat'l Bank & Trust Co., 151 Ga. App. 104, 258 S.E.2d 760 (1979); National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979); Parks v. Parks, 244 Ga. 479, 260 S.E.2d 873 (1979); Spurlock v. Commercial Banking Co., 151 Ga. App. 649, 260 S.E.2d 912 (1979); Berry v. Morton, 152 Ga. App. 117, 262 S.E.2d 263 (1979); Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 262 S.E.2d 481 (1979); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980); Maolud v. Keller, 153 Ga. App. 268, 265 S.E.2d 86 (1980); Emery Enters., Inc. v. Automatic Fastners Div., 155 Ga. App. 24, 270 S.E.2d 261 (1980); Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287, 277 S.E.2d 257 (1981); Corrosion Control, Inc. v. William Armstrong Smith Co., 157 Ga. App. 291, 277 S.E.2d 287 (1981); Sigmon v. Womack, 158 Ga. App. 47, 279 S.E.2d 254 (1981); Davis v. Barnes, 158 Ga. App. 89, 279 S.E.2d 330 (1981); Ross v. Ross, 159 Ga. App. 144, 282 S.E.2d 759 (1981); Johnson v. Freeman, 160 Ga. App. 431, 287 S.E.2d 314 (1981); Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710 (1982); Bouldin v. Aragona-Garcia Enters., Inc., 161 Ga. App. 396, 288 S.E.2d 673 (1982); Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459, 288 S.E.2d 711 (1982); Caswell v. Caswell, 162 Ga. App. 72, 290 S.E.2d 171 (1982); Stone v. Green, 163 Ga. App. 18, 293 S.E.2d 506 (1982); Freeman v. Criterion Ins. Co., 693 F.2d 1021 (11th Cir. 1982); Jones v. Christian, 165 Ga. App. 165, 300 S.E.2d 1 (1983); Dubberly v. Nail, 166 Ga. App. 378, 304 S.E.2d 504 (1983); Mathews v. City of Atlanta, 167 Ga. App. 168, 306 S.E.2d 3 (1983); Stevens v. FAA's Florist, Inc., 169 Ga. App. 189, 311 S.E.2d 856 (1983); Mote v. Helmly, 169 Ga. App. 475, 313 S.E.2d 493 (1984); Robinson v. Mullins, 169 Ga. App. 903, 315 S.E.2d 658 (1984); Davis v. First of Ga. Ins. Managers, Inc., 171 Ga. App. 347, 319 S.E.2d 517 (1984); Tuck v. Cummins Trucking Co., 171 Ga. App. 485, 320 S.E.2d 265 (1984); Polston v. Levine, 171 Ga. App. 893, 321 S.E.2d 350 (1984); Ferris v. Hill, 172 Ga. App. 599, 323 S.E.2d 895 (1984); Dempsey Bros. Dairies, Inc. v. Blalock, 173 Ga. App. 7, 325 S.E.2d 410 (1984); Spivey v. Rogers, 173 Ga. App. 233, 326 S.E.2d 227 (1984); Plank v. Bourdon, 173 Ga. App. 391, 326 S.E.2d 571 (1985); Citizens Bank v. Hooks, 173 Ga. App. 865, 328 S.E.2d 755 (1985); Smithloff v. Benson, 173 Ga. App. 870, 328 S.E.2d 759 (1985); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Coker v. Casey, 178 Ga. App. 682, 344 S.E.2d 662 (1986); Keith v. McLanahan, 147 Ga. App. 342, 249 S.E.2d 128 (1987); Smith v. National Bank, 182 Ga. App. 55, 354 S.E.2d 678 (1987); DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181 (1988); Ramos v. Vourtsanis, 187 Ga. App. 69, 369 S.E.2d 344 (1988); Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 379 S.E.2d 6 (1989); Williams v. City of Peachtree City, 192 Ga. App. 121, 385 S.E.2d 680 (1989); Ruff v. Central State Hosp., 192 Ga. App. 631, 385 S.E.2d 734 (1989); Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341, 392 S.E.2d 855 (1990); Jones v. Bienert, 197 Ga. App. 554, 398 S.E.2d 830 (1990); Hertz Corp. v. McCray, 198 Ga. App. 484, 402 S.E.2d 298 (1991); Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991); Mantegna v. Professional Auto Care, Inc., 204 Ga. App. 254, 419 S.E.2d 43 (1992); Health Images, Inc. v. Green, 207 Ga. App. 455, 428 S.E.2d 378 (1993); Bennett v. Bridgestone/Firestone, Inc., 208 Ga. App. 782, 431 S.E.2d 748 (1993); Greeson Homes Corp. v. Voss, 209 Ga. App. 14, 432 S.E.2d 271 (1993); Haehn v. Alheit, 212 Ga. App. 252, 441 S.E.2d 529 (1994); Sievers v. Espy, 264 Ga. 118, 442 S.E.2d 232 (1994); Ludi v. Van Metre, 221 Ga. App. 479, 471 S.E.2d 913 (1996); Brown v. Adams, 233 Ga. App. 813, 506 S.E.2d 135 (1998); Truitt v. Housing Auth., 235 Ga. App. 92, 507 S.E.2d 781 (1998); Lau v. Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999); Merchant v. Mitchell, 241 Ga. App. 173, 525 S.E.2d 710 (1999); Stephens v. Conyers Apostolic Church, 243 Ga. App. 170, 532 S.E.2d 728 (2000)
Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000); Chambers v. Green, 245 Ga. App. 814, 539 S.E.2d 181 (2000); Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000); Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 558 S.E.2d 432 (2001); Int'l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga. App. 752, 569 S.E.2d 865 (2002); Drake v. Wallace, 259 Ga. App. 111, 576 S.E.2d 87 (2003); Benson v. McMillan, 261 Ga. App. 78, 581 S.E.2d 707 (2003); Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 639 S.E.2d 570 (2006); Jenkins v. Crea, 289 Ga. App. 174, 656 S.E.2d 849 (2008); GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707, 667 S.E.2d 916 (2008); Vega v. La Movida, Inc., 294 Ga. App. 311, 670 S.E.2d 116 (2008); Muskett v. Sketchley Cleaners, Inc., 297 Ga. App. 561, 677 S.E.2d 731 (2009); Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009); Windsor v. City of Atlanta, 287 Ga. 334, 695 S.E.2d 576 (2010); Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011); Montgomery v. Morris, 322 Ga. App. 558, 745 S.E.2d 778 (2013); Heath v. Color Imprints USA, Inc., 341 Ga. App. 497, 801 S.E.2d 107 (2017); Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282 (2020).
Voluntary Dismissal
1. In General
Constitutionality
- Subsection (a) of this section is not unconstitutional. Deal v. Seaboard Coast Line R.R., 236 Ga. 629, 224 S.E.2d 922 (1976).
Legislative intent behind enactment of subsection (a) of O.C.G.A. § 9-11-41 was to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate a plaintiff's suit despite the inconvenience and irritation to the defendant. Griggs v. Columbus Bank & Trust Co., 188 Ga. App. 741, 374 S.E.2d 347 (1988); Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Intent of the legislature in enacting subsection (a) of O.C.G.A. § 9-11-41 was to give a plaintiff an opportunity to escape from an "untenable position" and relitigate the case, and thus there is no "bad-faith exception" to the right to dismiss and later relitigate, despite inconvenience and irritation to the defendant. Lakes v. Marriott Corp., 264 Ga. 475, 448 S.E.2d 203 (1994).
Federal rule contrasted.- Although the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is patterned generally after the Federal Rules of Civil Procedure, subsection (a) of this section represents a significant departure from Rule 41(a), F.R.C.P. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff'd, 483 F.2d 1395 (5th Cir. 1973).
Construction with other law.
- Upon a proper appeal from a final order, while neither former O.C.G.A. § 24-9-67.1 (see now O.C.G.A. § 24-7-702) nor O.C.G.A. § 9-11-16 required that a complaint be dismissed or stricken for failing to comply with the terms of those statutes, unlike the Anti-SLAPP statute, codified at O.C.G.A. § 9-11-11.1, because the trial court did not enter a final judgment within the meaning of O.C.G.A. § 9-11-68(b)(1), attorney fees were properly denied; moreover, as to the claim that dismissing and refiling in another court constitutes "improper judge shopping," obtaining a different judge was simply the result of the action, not necessarily the reason for doing so. McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007), cert. denied, No. S07C1602, 2007 Ga. LEXIS 656 (Ga. 2007).
Subsection (a) of O.C.G.A. § 9-11-41 was subject to former § 14-2-123(d) (see now O.C.G.A. § 14-2-744), relating to dismissal of shareholder's derivative actions, and the plaintiff's attempted dismissal of the shareholder's derivative suit was ineffective when no approval of the trial court was sought prior to the attempted dismissal. Reese v. Frazier, 158 Ga. App. 237, 279 S.E.2d 529 (1981).
Substantial justice intended.
- Subsection (a) of this section is to be interpreted so as to do substantial justice. Worthen v. Jones, 240 Ga. 388, 240 S.E.2d 842 (1977).
Statute provides a res judicata defense to any party against whom relief is being sought under the same claim which has been brought and voluntarily dismissed on three previous occasions. Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Voluntary dismissal terminates the action. Mitchell v. Wyatt, 192 Ga. App. 127, 384 S.E.2d 227 (1989); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992).
In an action containing a counterclaim, the failure of a defendant to object to a properly written and filed voluntary dismissal of the main action results in the counterclaim's dismissal. Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 425 S.E.2d 416 (1992).
Trial court lacked jurisdiction to hold a former employee in contempt for an alleged violation of a settlement agreement because the employee's former employer and a related entity had voluntarily dismissed their suit under O.C.G.A. § 9-11-41(a), which divested the trial court of jurisdiction and rendered null any subsequent trial court orders in the case. Gallagher v. Fiderion Group, LLC, 300 Ga. App. 434, 685 S.E.2d 387 (2009).
Trial court's denial of a co-guardian's motion to intervene in a lawsuit involving the approval of a settlement to a minor was affirmed because the trial court lacked jurisdiction to consider the motion since the motion was filed two weeks after the defendants had voluntarily dismissed the action seeking the approval of the settlement. Barnes v. Cannon, 347 Ga. App. 517, 820 S.E.2d 155 (2018).
Voluntary dismissal as matter of right.
- Plaintiff is entitled to voluntary dismissal as a matter of right when the plaintiff substantially complies with statutory conditions. English v. Atlanta Transit Sys., 134 Ga. App. 621, 215 S.E.2d 304 (1975).
Voluntary dismissal is a matter of right and terminates the action. Page v. Holiday Inns, Inc., 245 Ga. 12, 262 S.E.2d 783 (1980).
When the plaintiffs moved to dismiss the plaintiffs' cause of action without prejudice after the plaintiffs had been permitted to reopen the case to call an additional witness, the plaintiffs were entitled to dismissal without prejudice before the plaintiffs rested the plaintiffs' case. Redman Homes, Inc. v. Voss, 212 Ga. App. 404, 441 S.E.2d 792 (1994).
Voluntary dismissal by plaintiff did not prohibit sanctions.
- In an automobile collision case in which the defendant's uninsured motorist carrier attempted to schedule an independent medical examination (IME) with the plaintiff three times, and the carrier's motion to compel the plaintiff to submit to an IME was granted, but the plaintiff did not submit to the IME, the trial court did not lack jurisdiction to sanction the plaintiff because the plaintiff's voluntary dismissal was without effect to prohibit the trial court's ruling on sanctions as the trial court did not merely threaten to rule in the carrier's favor because the trial court clearly stated that the court was granting attorney fees and costs to the carrier, and the court then instructed the carrier to submit proof of the carrier's relevant fees. Baker v. Atlantic States Ins. Co., 354 Ga. App. 773, 840 S.E.2d 734 (2020).
Right to dismiss when defendant not prejudiced or deprived of defense.
- Plaintiff may always dismiss the plaintiff's action if no right of the defendant is prejudiced thereby. Palmer v. Palmer, 212 Ga. 616, 94 S.E.2d 722 (1956)(decided under former Code 1933, § 3-510).
Plaintiff may dismiss any claim when such dismissal will not prejudicially affect the interests of the defendant, but the plaintiff will not be permitted to dismiss when by so doing the defendant's rights will be prejudiced or the defendant will be deprived of any just defense. Howard v. Housing Auth., 220 Ga. 640, 140 S.E.2d 880 (1965)(decided under former Code 1933, § 3-510).
When defendant's answer is purely defensive, plaintiff may dismiss the plaintiff's action without leave or order of court, and after such dismissal there is no case in court and no decree can be rendered therein. Davenport v. Hardman, 184 Ga. 518, 192 S.E. 11 (1937)(decided under former Code 1933, § 3-510).
Plaintiff may dismiss an action after the defendant has filed an answer which is purely defensive in its nature and seeks no affirmative relief over against the plaintiff. Seaboard Air Line R.R. v. Whitman, 107 Ga. App. 375, 130 S.E.2d 272 (1963)(decided under former Code 1933, § 3-510).
Dismissal prejudicing defendant's affirmative rights not permitted.
- While ordinarily the plaintiff may dismiss the plaintiff's action with or without an order of court, an entire cause cannot properly be dismissed over the defendant's objection when the defendant's affirmative rights under the pleadings would be prejudiced thereby. Fender v. Hendley, 196 Ga. 512, 26 S.E.2d 887 (1943)(decided under former Code 1933, § 3-510).
When the defendant's answer prays for affirmative relief, the plaintiff cannot dismiss the plaintiff's action so as to interfere with the defendant's prayers for affirmative relief, whether the claims set up therein are legal or equitable; the defendant has the right to a hearing and a trial on the defendant's cross action. Griffin v. Lynn, 214 Ga. 300, 104 S.E.2d 442 (1958)(decided under former Code 1933, § 3-510).
Plaintiff may not dismiss action if such dismissal would prejudice any right of the defendant. GMC v. Jenkins, 117 Ga. App. 527, 160 S.E.2d 906, rev'd on other grounds, 224 Ga. 699, 164 S.E.2d 224 (1968) (decided under former Code 1933, § 3-510).
Jurisdiction of court to dismiss actions with prejudice.
- Contention that trial court's dismissal of actions with prejudice under O.C.G.A. § 9-11-41 was a nullity because the plaintiffs had already entered a voluntary dismissal was without merit since the court did nothing more than reduce to writing the legal effect accomplished by operation of law with a third voluntary dismissal. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).
Voluntary dismissal of a paternity complaint did not deprive the court of jurisdiction since, pursuant to O.C.G.A. § 19-7-48, the dismissal required the court's approval. Patterson v. Whitehead, 224 Ga. App. 636, 481 S.E.2d 621 (1997).
Summary judgment as to already-dismissed claim.
- Trial court's entry of summary judgment with respect to a claim which had already been dismissed was improper since voluntary dismissal operated to divest the court of jurisdiction. Smith v. Memorial Medical Ctr., Inc., 208 Ga. App. 26, 430 S.E.2d 57 (1993); Lotman v. Adamson Contracting, Inc., 219 Ga. App. 898, 467 S.E.2d 224 (1996).
Prayer for temporary alimony is not one for affirmative relief such as would preclude the plaintiff from dismissing the divorce action. Palmer v. Palmer, 212 Ga. 616, 94 S.E.2d 722 (1956)(decided under former Code 1933, § 3-510).
No dismissal after plea filed without leave of court on terms.
- While plaintiff may dismiss the plaintiff's action if the plaintiff shall not thereby prejudice any right of the defendant, the plaintiff may not dismiss the action after plea of setoff or otherwise is filed so as to interfere with that plea, unless by leave of court on sufficient cause shown, and on terms prescribed by the court. Collier v. DeJarnette Supply Co., 194 Ga. 129, 20 S.E.2d 925 (1942)(decided under former Code 1933, § 3-510).
Plaintiff in any action may dismiss at any time, provided the plaintiff shall not prejudice any right of the defendant or interfere with the defendant's plea, unless by leave of court on sufficient cause shown and on terms prescribed by the court. Riddle v. Riddle, 216 Ga. 549, 118 S.E.2d 83 (1961)(decided under former Code 1933, § 3-510).
Dismissal erroneous and appealable when defendant sought relief and restitution.
- When, as a condition for grant of an interlocutory injunction against interfering with possession of land, the plaintiff was required to file a bond to indemnify the defendant for such rentals as might be due by the plaintiff, which injunction was reversed by the Supreme Court as being mandatory in character, and the defendant in the same proceeding sought restitution and other relief, dismissal of the entire cause on the plaintiff's motion and objection by the defendant was erroneous, and was a final judgment from which appeal would lie. Fender v. Hendley, 196 Ga. 512, 26 S.E.2d 887 (1943)(decided under former Code 1933, § 3-510).
When no defensive pleadings have been filed by defendant, none of the defendant's rights are prejudiced by the plaintiff's dismissal of the plaintiff's action. Waldor v. Waldor, 217 Ga. 496, 123 S.E.2d 660 (1962)(decided under former Code 1933, § 3-510).
Claims that were subject to dismissal because the claims were duplicative of prior pending actions and subject to dismissal under O.C.G.A. § 9-2-5 were not void, thus, voluntary dismissal without prejudice of such claims was a dismissal within the meaning of O.C.G.A. § 9-11-41. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).
Dismissal of claims subject to consolidation.
- Contention that dismissal of actions with prejudice under O.C.G.A. § 9-11-41 was improper because some or all of the actions should have been consolidated under O.C.G.A. § 9-11-42 was without merit since the consent of all parties is required for consolidation. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).
There is no "bad faith" exception to the plaintiff's right to dismiss an action voluntarily pursuant to subsection (a) of O.C.G.A. § 9-11-41. C & S Indus. Supply Co. v. Proctor & Gamble Paper Prods. Co., 199 Ga. App. 197, 407 S.E.2d 346 (1991).
Plaintiff's voluntary dismissal of a legal malpractice action did not violate O.C.G.A. § 9-11-41 or public policy since the intent of the legislature in enacting that section was to give the plaintiffs the opportunity to escape untenable positions and relitigate the case, and there is no bad faith exception to this right, despite whatever inconvenience and irritation this may cause the defendants. Bunch v. Vincent, 234 Ga. App. 637, 507 S.E.2d 239 (1998).
When holders of an alleged easement filed an action in superior court for removal of an obstruction to the easement and then dismissed that action and filed a similar case in probate court, the holders were not guilty of improper "judge shopping," because O.C.G.A. § 9-11-41(a) allowed the holders to voluntarily dismiss the holders' superior court action without prejudice, and there was no "bad faith" exception to this right. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823 (2003).
Right of dismissal not unlimited.
- Subsection (a) of this section does not provide an unlimited and unfettered right of dismissal. Housing Auth. v. Mercer, 123 Ga. App. 38, 179 S.E.2d 275 (1970).
Dismissal is accomplished by plaintiff, not by court.
- Dismissal pursuant to subsection (a) of O.C.G.A. § 9-11-41 is accomplished by the plaintiff, not by order of the trial court. Swartzel v. Garner, 193 Ga. App. 267, 387 S.E.2d 359, cert. denied, 193 Ga. App. 911, 387 S.E.2d 359 (1989).
Voluntary dismissal of action against county board of commissioners not res judicata.
- Developer's prior action against the county board of commissioners, which the developer had voluntarily dismissed, was not res judicata as to the developer's later claim seeking mandamus against two county planning officials in the officials' individual capacities, because the officials were not parties to the prior action nor in privity with the board of commissioners under O.C.G.A. § 9-12-40. Carson v. Brown, 348 Ga. App. 689, 824 S.E.2d 605 (2019).
Voluntary dismissal is not a judgment of the court, but it is an order in the case. Page v. Holiday Inns, Inc., 245 Ga. 12, 262 S.E.2d 783 (1980).
Complainant may dismiss complaint without leave or order of court. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837 (1937)(decided under former Code 1933, § 3-510); Trusco Fin. Co. v. McGee, 206 Ga. 382, 57 S.E.2d 184 (1950)(decided under former Code 1933, § 3-510).
When parties sign and file a formal dismissal, upon entry of the dismissal on the docket, the case is effectively dismissed, and no order of the judge is necessary to effect that result. Minchew v. Minchew, 222 Ga. 593, 151 S.E.2d 144 (1966)(decided under former Code 1933, § 3-510).
Dismissal subject to correction under
§ 9-11-60(g). - Voluntary dismissal is an "order" within the meaning of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60(g)), and is subject to correction as provided therein. Page v. Holiday Inns, Inc., 245 Ga. 12, 262 S.E.2d 783 (1980).
Withdrawal by amendment, not notice of dismissal.
- In a creditor's fraudulent transfer action against a guarantor and the guarantor's transferees, because the creditor properly withdrew the creditor's claims relating to certain Florida property by amendment under O.C.G.A. § 9-11-15, not a notice of dismissal under O.C.G.A. § 9-11-41, prior to any decision by the court to dismiss those claims, the trial court had no authority to rule on those claims. Cmty. & S. Bank v. Lovell, 302 Ga. 375, 807 S.E.2d 444 (2017).
Written notice filed by the plaintiff is required to effectuate the voluntary dismissal of an action. Swartzel v. Garner, 193 Ga. App. 267, 387 S.E.2d 359, cert. denied, 193 Ga. App. 911, 387 S.E.2d 359 (1989).
When plaintiff's counsel informed the court of the plaintiff's intent to dismiss the case, signed a voluntary dismissal that day, and served the dismissal on defense counsel by mail, no voluntary dismissal occurred until the plaintiff actually filed a written notice thereof and the six-month renewal period did not begin until that date. Carter v. Digby, 244 Ga. App. 217, 535 S.E.2d 286 (2000).
Trial court did not err in not voluntarily dismissing the motorist and the passenger's action against the first possible driver and the second possible driver, as the motorist and the passenger's attempts to voluntarily dismiss their action, initially against the second possible driver and then against the first possible driver was ineffective to dismiss either of those parties, as the motorist and the passenger did not first obtain an order from or the permission of the court; accordingly, the first possible motorist and the second possible motorist's appeal of the denial of their summary judgment was not moot. Rosales v. Davis, 260 Ga. App. 709, 580 S.E.2d 662 (2003).
Order must be properly entered in record of court to toll five-year period.
- As a jury selection notice sent by the trial court to the parties was not stamped by the clerk of court's office as "filed," and there was nothing else in the record to show that the notice was properly entered in the records of the court, the jury selection notice did not meet the requirements for a written order that tolled the five-year dismissal period of O.C.G.A. § 9-11-41(e). Therefore, the trial court erred in denying the defendants' motion to dismiss. Pilz v. Thibodeau, 293 Ga. App. 532, 667 S.E.2d 622 (2008).
Nunc pro tunc order could not be used to effectuate a voluntary dismissal since no written notice had ever been filed by the plaintiffs. Swartzel v. Garner, 193 Ga. App. 267, 387 S.E.2d 359, cert. denied, 193 Ga. App. 911, 387 S.E.2d 359 (1989).
Dismissal not on merits.
- Dismissal under O.C.G.A. § 9-11-41 is not on the merits, and case may be refiled within six months of automatic dismissal. Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982).
Because the counterclaim-plaintiffs in the second-dismissed case were not plaintiffs in the first-dismissed case, the second dismissal did not operate as an adjudication upon the merits under O.C.G.A. § 9-11-41(a)(3). Consequently, O.C.G.A. § 9-12-40 did not preclude the instant action, and the trial court erred in dismissing the action on that ground. Dillard Land Invs., LLC v. S. Fla. Invs., LLC, 320 Ga. App. 209, 739 S.E.2d 696 (2013).
"Before the plaintiff rests his case" has reference to the actual trial of a case rather than to proceedings on pretrial motions. Muhanna v. O'Kelley, 185 Ga. App. 220, 363 S.E.2d 626 (1987); Delta Air Lines v. Van Diviere, 192 Ga. App. 207, 384 S.E.2d 272 (1989).
Involuntary dismissals not covered by subsection (a).
- Interpretation of subsection (a) of this section as referring to involuntary dismissals not on the merits is probably precluded by the fact that subsection (b) of this section specifically deals with such dismissals. Bowman v. Ware, 133 Ga. App. 799, 213 S.E.2d 58 (1975).
Dismissal for failure to state claim.
- Ruling which grants a motion to dismiss under Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(b)(6)) for failure to state a claim is an adjudication on the merits of plaintiff's claim and is not equivalent to a voluntary dismissal under subsection (a) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41). State v. Golia, 235 Ga. 791, 222 S.E.2d 27 (1976).
In an action in which the court orally granted the bank's motion to dismiss for failure to state a claim but then the trial court granted the plaintiffs' motion for voluntary dismissal pursuant to O.C.G.A. § 9-11-41(a), the trial court was entitled to change the court's mind as the oral decision had not been reduced to writing pursuant to O.C.G.A. § 5-6-31. Wachovia Bank Savannah, N.A. v. Kitchen, 272 Ga. App. 601, 612 S.E.2d 885 (2005).
Dismissal of class action.
- Voluntary dismissal of a Ga. L. 1966, p. 609, § 23 (see now O.C.G.A. § 9-11-23(a)(1)) class action without leave of court is ineffectual. State v. Golia, 235 Ga. 791, 222 S.E.2d 27 (1976).
Dismissal after challenge to jurisdiction.
- Notice of voluntary dismissal filed after motions challenging jurisdiction of the person of defendant is not untimely. Central Mut. Ins. Co. v. Wofford, 145 Ga. App. 836, 244 S.E.2d 899, rev'd on other grounds, 242 Ga. 338, 249 S.E.2d 21 (1978).
Voluntary dismissal of magistrate court action was not res judicata.
- Trial court erred by granting the debtors' motion to dismiss by applying res judicata to the voluntary dismissal of the prior magistrate court actions because of the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., was inapplicable to magistrate courts, thus, the voluntary dismissal under O.C.G.A. § 9-11-41(a)(1) did not operate as an adjudication upon the merits of the case. Target Nat'l Bank v. Luffman, 324 Ga. App. 442, 750 S.E.2d 750 (2013).
Effect of motion to dismiss for failure to substitute parties.
- Plaintiff may voluntarily dismiss action at any time before verdict or oral announcement of judgment by the trial court, and this right is not abridged by the filing of a motion to dismiss based upon the plaintiff's failure to comply with Ga. L. 1966, p. 609, § 25 (see now O.C.G.A. § 9-11-25(a)(1)), relating to substitution of parties. Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 249 S.E.2d 21 (1978).
Plaintiffs right to dismiss voluntarily any time before the verdict is not abridged by the filing of a motion to dismiss based on plaintiff's failure to comply with Ga. L. 1966, p. 609, § 25 (see now O.C.G.A. § 9-11-25(a)(1)), relating to substitution of parties. Central Mut. Ins. Co. v. Wofford, 145 Ga. App. 836, 244 S.E.2d 899, rev'd on other grounds, 242 Ga. 338, 249 S.E.2d 21 (1978).
Improper third-party claims were not void; thus, voluntary dismissal without prejudice of such claims was a dismissal within the meaning of O.C.G.A. § 9-11-41. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).
Dismissal allowed when issues of liability and damages were bifurcated.
- Plaintiff who brought a breach of contract action and was unable to adequately prove lost profits was entitled to voluntarily dismiss the plaintiff's case without prejudice, even though the issues of liability and damages had been bifurcated. Pounds v. Hospital Auth., 197 Ga. App. 598, 399 S.E.2d 92 (1990).
Dismissal allowed before verdict.
- Subsection (a) of this section allows dismissal at any time before verdict, not entry of judgment. Stegar v. Northeast Foreign Car Serv., Inc., 143 Ga. App. 760, 240 S.E.2d 95 (1977).
Voluntary dismissal after motion for partial summary judgment.
- Plaintiff's voluntary dismissal without prejudice was timely since the submission of the plaintiff's case for a ruling on a motion for partial summary judgment did not result in the plaintiff resting the plaintiff's entire case so as to terminate the plaintiff's statutory right to voluntarily dismiss without prejudice. Bunch v. Vincent, 234 Ga. App. 637, 507 S.E.2d 239 (1998).
Voluntary dismissal not permitted after judgment announced.
- Plaintiff may not dismiss action after the verdict is published or after the plaintiff has knowledge that the jury has agreed on a verdict for the defendant, even if such verdict is not yet published. Seaboard Air Line R.R. v. Whitman, 107 Ga. App. 375, 130 S.E.2d 272 (1963)(decided under former Code 1933, § 3-510).
Once a judgment in a civil case has been announced, though not formally entered, attempted filing of a voluntary dismissal is not permissible and does not effect a dismissal. Jones v. Burton, 238 Ga. 394, 233 S.E.2d 367 (1977); Kilby v. Keener, 249 Ga. 667, 293 S.E.2d 318 (1982); Mixon v. Trinity Servs., Inc., 176 Ga. App. 679, 337 S.E.2d 362 (1985).
Announcement by trial judge of a decision that will terminate a civil case, even though that decision has not been formally reduced to writing and entered, will preclude filing of a voluntary dismissal after such announcement but before the judgment is actually entered by the trial judge. Jones v. Burton, 238 Ga. 394, 233 S.E.2d 367 (1977); Pizza Ring Enters., Inc. v. Mills Mgt. Sources, Inc., 154 Ga. App. 45, 267 S.E.2d 487 (1980); Smith v. Hartford Fire Ins. Co., 162 Ga. App. 26, 289 S.E.2d 520 (1982); Johnson v. Wade, 184 Ga. App. 675, 362 S.E.2d 469 (1987).
When wife initiated divorce litigation, invoked aid of the court in determining custody and temporary support, appeared at a hearing, and obtained partial relief in the form of the award of temporary custody of one of the three children, along with child support, the announcement of the trial court of the court's decision relative to temporary custody of the children constituted a "verdict" within the contemplation of subsection (a) of O.C.G.A. § 9-11-41, and the wife's subsequent voluntary dismissal resulting from dissatisfaction at not obtaining custody of all three children was ineffective in toto. Groves v. Groves, 250 Ga. 459, 298 S.E.2d 506 (1983).
Voluntary dismissal which was presented to the trial court for filing after plaintiff's counsel received notice that the jury was prepared to announce the jury's verdict, which the court initially declined to accept, but which, following the entry of the verdict for the defendants, the court did accept, backdating the court's decision to reflect an earlier filing, was not timely filed, and the judgment of the trial court was reversed with direction that the judgment be entered on the verdict. Vanderbreggen v. Hodge, 171 Ga. App. 868, 321 S.E.2d 218 (1984).
Regardless of the wording of subsection (a) of O.C.G.A. § 9-11-41, the right of a voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, when there has already been an announcement by the court of the court's intention to rule in favor of the defendant. Bailey v. Austin, 185 Ga. App. 831, 366 S.E.2d 214 (1988).
Because a lender's O.C.G.A. § 9-11-41(a)(1)(A) notice to withdraw an appeal after sustaining an adverse judgment on the merits did not toll the time in which the lender was required to file a transcript on appeal, the renewal statute, O.C.G.A. § 9-2-61, did not apply; thus, the appeal was properly dismissed pursuant to O.C.G.A. § 5-6-48(c). Schreck v. Standridge, 273 Ga. App. 58, 614 S.E.2d 185 (2005).
Client's voluntary dismissal of the client's action against a magistrate judge for violation of the client's civil rights had no effect because prior to the client filing the voluntary dismissal, the trial court communicated the court's decision on the merits to the parties. Wall v. Thurman, 283 Ga. 533, 661 S.E.2d 549 (2008).
Dismissal prior to announcement of ruling adverse to plaintiff.
- Plaintiffs were entitled to refile the plaintiffs' original action after a voluntary dismissal since, even though there had been an arbitration award in favor of the defendants, there was no announcement of an adverse ruling by the trial court. Lakes v. Marriott Corp., 264 Ga. 475, 448 S.E.2d 203 (1994).
When the trial court never actually ruled on a citizen's motion for a directed verdict, the court properly allowed a police officer permission to voluntarily dismiss the police officer's personal injury action as the trial court never addressed whether the wilful and wanton misconduct exception to the Fireman's rule applied. Mikkilineni v. Lawver, 267 Ga. App. 558, 601 S.E.2d 128 (2004).
Although a plaintiff became aware through the plaintiff's litigation opponent's counsel's email, which acknowledged that the trial court had asked the opponent to draft an order on the court's summary judgment motion, that the trial court was probably going to rule against the plaintiff, the plaintiff could still dismiss the plaintiff's claims without prejudice pursuant to O.C.G.A. § 9-11-41(a)(1)(A). The trial court had not actually indicated which way the court was going to rule. First Media Group, Inc. v. Doe, 312 Ga. App. 84, 717 S.E.2d 277 (2011), cert. denied, No. S12C0342, 2012 Ga. LEXIS 483 (Ga. 2012).
Effect of vacation of oral grant of directed verdict.
- Rule that an oral announcement of a ruling terminating the litigation will preclude voluntary dismissal under subsection (a) of O.C.G.A. § 9-11-41, even though the ruling is not reduced to writing, did not apply since, prior to the voluntary dismissal, the trial court reconsidered and vacated the court's oral grant of a directed verdict without entering a final judgment. Cecil T. Allgood, Inc. v. Stark Props., Inc., 244 Ga. App. 105, 534 S.E.2d 858 (2000).
Effect of motion for judgment notwithstanding mistrial.
- When a mistrial has been declared due to the inability of the jury to reach a verdict and the defendant thereafter files a timely motion for judgment notwithstanding the mistrial, the plaintiff's right of voluntary dismissal is not restored unless and until that motion has been denied. LeRoux v. Levine, 194 Ga. App. 381, 390 S.E.2d 629 (1990).
After party has taken chance of litigation and knows the actual result reached in the action by the tribunal which is to pass upon it, the party cannot, by exercising the right of voluntary dismissal, deprive the opposite party of the victory thus gained. Cooper v. Rosser, 233 Ga. 388, 211 S.E.2d 303 (1974); Bytell v. Paul, 173 Ga. App. 83, 325 S.E.2d 451 (1984).
If verdict returned by jury is void, plaintiff's voluntary dismissal is timely and authorized prior to the return of a valid verdict. McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971).
Oral announcement of ruling on summary judgment constituted "verdict".
- Complaint against real estate agents and purchaser of land alleging fraud against the seller of land could not be voluntarily dismissed and reinstated in another county against all parties except the purchaser when the trial court orally announced that the purchaser's motion for summary judgment would be granted since such an oral announcement amounted to a "verdict" permanently affecting the course of the litigation as to all of the parties, not first the purchaser. Guillebeau v. Yeargin, 254 Ga. 490, 330 S.E.2d 585 (1985).
When verdict has been received by the clerk of the court, and read at the direction of the judge, it has been published. A plaintiff may not thereafter dismiss a plaintiff's action unless it is void or for some lawful reason can be set aside. Hannula v. Ramey, 177 Ga. App. 512, 339 S.E.2d 735 (1986).
Dismissal before intervention.
- Plaintiff may dismiss petition for injunction, even though there may be persons who might intervene, when such dismissal is effected before such intervention. Davenport v. Hardman, 184 Ga. 518, 192 S.E. 11 (1937)(decided under former Code 1933, § 3-510).
Dismissal after evidence introduced.
- When there was no prayer for nor facts pled in the defendant's answer justifying grant of affirmative relief to the defendant, the court did not err in permitting the plaintiff to dismiss the case after introduction of evidence and before the submission to the jury. Christian v. McBryar, 88 Ga. App. 74, 76 S.E.2d 25 (1953)(decided under former Code 1933, § 3-510).
Announcement in open court that case has been settled is equivalent to dismissal. Jackson v. Taylor, 169 Ga. 300, 150 S.E. 156 (1929)(decided under former Code 1933, § 3-510).
Ruling not disturbed if "any evidence".
- Trial court's ruling on a motion under subsection (b) of O.C.G.A. § 9-11-41 for involuntary dismissal will not be disturbed if there is "any evidence" to support the ruling. Magnus Homes, L.L.C. v. DeRosa, 248 Ga. App. 31, 545 S.E.2d 166 (2001).
Dismissal after settlement agreement inappropriate.
- Voluntary dismissal may not be filed after all parties announce a settlement agreement in open court and the trial court adopts the terms of the agreement in an oral order, even if the order is not reduced to writing until a later time. Leary v. Julian, 225 Ga. App. 472, 484 S.E.2d 75 (1997).
Filing of notice of interlocutory appeal acts as supersedeas, so as to prevent the plaintiff from dismissing the case while any issue is on appeal; to hold otherwise would subject the appellant to additional costs and possible harassment by an appellee who dismissed the pending action when faced with reversal on interlocutory appeal. Steele v. Steele, 243 Ga. 522, 255 S.E.2d 43 (1979).
Former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34) indicated the legislative intent that after filing of notice of appeal, status quo was to be maintained, and mandated that once supersedeas attached, interlocutory order should have the same procedural status and dignity as a final judgment; therefore, since subsection (a) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) would not permit plaintiff-appellee to dismiss the case while a final judgment in the plaintiff-appellee's favor was on appeal, thereby robbing the defendant-appellant of an opportunity to seek reversal, neither would it permit plaintiff-appellee to do so in an interlocutory context. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978).
Service or notice required to effect dismissal.
- Complaint is merely dormant after the plaintiff files a written notice of dismissal, and does not stand dismissed as of the date of filing of the notice unless and until the opposing party is served or has actual notice. Jones v. Jones, 230 Ga. 738, 199 S.E.2d 239 (1973).
Relegation of a notice of dismissal to a footnote within the body of a brief did not comply with the requirement in O.C.G.A. § 9-11-41 for filing a written notice of dismissal. Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721, 296 S.E.2d 74 (1982).
Renewal of dismissed action.
- When a case filed within the applicable statute of limitation is voluntarily dismissed by the plaintiff, the case may be recommenced either within the applicable limitation period or within six months after the dismissal, whichever is later pursuant to O.C.G.A. § 9-2-61. Atkinson v. Holt, 213 Ga. App. 427, 444 S.E.2d 838 (1994).
When the plaintiff voluntarily dismissed an action without prejudice and filed another complaint for damages, and the plaintiff did not perfect service by having the second complaint personally served on the defendant, the plaintiff failed to comply with the procedural prerequisites for renewal of the dismissed action. Atkinson v. Holt, 213 Ga. App. 427, 444 S.E.2d 838 (1994).
Trial court properly dismissed a plaintiff's renewal action regarding a personal injury suit because the plaintiff's original action was void in that the trial court had orally dismissed that suit for insufficiency of service and a lack of personal jurisdiction, and the renewal statute only applied to actions that were valid prior to dismissal. Stephens v. Shields, 271 Ga. App. 141, 608 S.E.2d 736 (2004).
Trial court correctly denied summary judgment to a corporation in an appellant's renewal action because the appellant was authorized to file a voluntary dismissal of the superior court appeal of a magistrate decision under O.C.G.A. § 9-11-41(a)(1)(A), which dismissed the appellant's case but did not dismiss the appeal, and because the renewal action was timely filed. Long v. Greenwood Homes, Inc., 285 Ga. 560, 679 S.E.2d 712 (2009).
Court of appeals correctly reversed a trial court's grant of summary judgment to a driver and a corporation based on a second driver's lack of diligence in serving the second driver's complaint in the second driver's voluntarily dismissed original action because the supreme court had previously held that inasmuch as diligence in perfecting service of process in an action properly refiled under O.C.G.A. § 9-2-61(a) had to be measured from the time of filing the renewed suit, any delay in service in a valid first action was not available as an affirmative defense in the renewal action; the first driver and corporation essentially sought the rewriting of an unambiguous statute, but their arguments were properly directed to the General Assembly because when the General Assembly wished to put a firm deadline on filing lawsuits, the legislature knew how to enact a statute of repose instead of a statute of limitation. Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165 (2010).
O.C.G.A. § 9-11-41(a), the voluntary dismissal statute, could be exercised by either party in a de novo appeal filed in superior court following the entry of a judgment in magistrate court, regardless of which party appealed. Once a landlord filed the landlord's voluntary dismissal, the landlord was also entitled to file a renewal action pursuant to O.C.G.A. § 9-2-61(a). Jessup v. Ray, 311 Ga. App. 523, 716 S.E.2d 583 (2011).
Trial court erred by denying a debtor's refiling of an appeal as untimely because the six-month period for filing the debtor's renewal action under O.C.G.A. § 9-2-61(a) began the day after the debtor dismissed the original superior court action, and ran until December 6, 2012, based on the method of calculation under O.C.G.A. § 1-3-1(d)(3), thus, the refiling of the action on December 6 was timely. Parsons v. Capital Alliance Fin., LLC, 325 Ga. App. 884, 756 S.E.2d 14 (2014).
Plaintiff's renewal action brought under the renewal statute, O.C.G.A. § 9-2-61(a), was timely because the six-month period was calculated not from the time the plaintiff dismissed some of the defendants, but from the date of the trial court's order granting the voluntary dismissal without prejudice as to all but one of the defendants. Had the plaintiff dismissed all the defendants, no court order would have been required, and the voluntary dismissal would have been effective. Gresham v. Harris, 329 Ga. App. 465, 765 S.E.2d 400 (2014).
Motion to dismiss must be filed with answer or renewal action not barred.
- Trial court did not err in denying the appellants' motion to dismiss because in order to bar the appellees from filing a renewal action, O.C.G.A. § 9-11-9.1(c) required the appellants to file a motion to dismiss at the same time the appellants filed the appellants answer to the original complaint and only raising the matter as a defense in the answer was insufficient to preclude the appellees from renewing the appellees' action pursuant to O.C.G.A. § 9-2-61. Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23, 793 S.E.2d 98 (2016).
Civil renewal provisions apply in habeas corpus proceedings.
- O.C.G.A. § 9-14-42(c) was not a statute of repose and not an absolute bar to the refiling of a habeas corpus petition, and therefore, was not in conflict with the provisions of O.C.G.A. §§ 9-2-60(b) and (c) and9-11-41(e), which allowed for the renewal of civil actions after dismissal. Therefore, the habeas court's dismissal of a petition as untimely was reversed. Phagan v. State, 287 Ga. 856, 700 S.E.2d 589 (2010).
Trial court may not order complaint reinstated after the complaint has been voluntarily dismissed under subsection (a) of this section. Matthews v. Riviera Equip., Inc., 152 Ga. App. 870, 264 S.E.2d 318 (1980); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992).
Trial court is without authority to reinstate case dismissed by plaintiff's attorney. Bufford v. Farmers & Merchants Bank, 110 Ga. App. 393, 138 S.E.2d 609 (1964)(decided under former Code 1933, § 3-510).
Reinstatement may be refused.
- Minor appellants who dropped out of an action, thereby dismissing the only claims the appellants had, took a voluntary dismissal of the appellants' actions which was effective without court order pursuant to subsection (a) of O.C.G.A. § 9-11-41, rather than a dropping of parties requiring a court order pursuant to O.C.G.A. § 9-11-21 and thus the appellants' attempt to state the appellants' actions could have been dismissed. Young v. Rider, 208 Ga. App. 147, 430 S.E.2d 117 (1993).
Reinstatement and injunction against similar action error.
- When the plaintiff in pending bail-trover action in which the defendant seeks no affirmative relief dismisses the action, it is error for the court, on the defendant's motion, to reinstate such case and enjoin the plaintiff from proceeding with a similar action in another court against a third party. Trusco Fin. Co. v. McGee, 206 Ga. 382, 57 S.E.2d 184 (1950)(decided under former Code 1933, § 3-510).
Consent order operated to vacate prior dismissal order, and placed the parties to the suit in the status the parties held before the dismissal order was entered, which allowed voluntary mutual dismissals without prejudice under subsection (a) of O.C.G.A. § 9-11-41. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988).
Voluntary dismissal carries entire case with it, including the answer to the extent of defensive matter. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837 (1937).
When the defendant's answer is purely defensive, the plaintiff may dismiss, and after such dismissal, there is no case in court. Trusco Fin. Co. v. McGee, 206 Ga. 382, 57 S.E.2d 184 (1950)(decided under former Code 1933, § 3-510).
When no setoff or cross action pled.
- Dismissal of bill in equity carries whole case out of court, including the defendant's answer, if that answer contains no setoff or other prayer for relief in the nature of a cross action. Spence v. Dyal, 202 Ga. 739, 44 S.E.2d 658 (1947)(decided under former Code 1933, § 3-510).
Further defensive pleading is null.
- When pending case is dismissed by the plaintiff, such dismissal carries with it the defendant's answer, and further defensive pleading is a nullity. Trusco Fin. Co. v. McGee, 206 Ga. 382, 57 S.E.2d 184 (1950)(decided under former Code 1933, § 3-510).
After dismissal no decree may be rendered thereafter.
- When suit in equity is dismissed, it is out of court and no decree can be rendered upon it. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837 (1937)(decided under former Code 1933, § 3-510).
Voluntary dismissal terminates action.
- When the plaintiff's dismissal deprived the trial court of jurisdiction over the case and left the parties in the same position as if the suit had never been filed, the trial court had no authority to enter judgment for the defendants in the original suit or in the refiled suit. Lakes v. Marriott Corp., 264 Ga. 475, 448 S.E.2d 203 (1994).
Trial after dismissal is nugatory.
- When the defendant's answer was purely defensive in nature and sought no affirmative collateral relief against the plaintiff as in a cross action, the superior court erroneously failed to give full effect to plaintiff's attempted dismissal, and all that took place subsequently in the resulting trial was nugatory. Spence v. Dyal, 202 Ga. 739, 44 S.E.2d 658 (1947)(decided under former Code 1933, § 3-510).
Cross action seeking affirmative relief.
- Dismissal of action will not dismiss the defendant's cross action, if the defendant asks for affirmative relief on matters germane to the original petition. Collier v. DeJarnette Supply Co., 194 Ga. 129, 20 S.E.2d 925 (1942)(decided under former Code 1933, § 3-510).
Right to proceed with cross action on dismissal of divorce action.
- Dismissal of the plaintiff's divorce petition could not affect the wife's right to proceed for affirmative relief prayed for in the cross action. Grinnell v. Grinnell, 174 Ga. 904, 164 S.E. 681 (1932)(decided under former Code 1933, § 3-510).
Wife's right to proceed with cross action for alimony is unaffected by withdrawal or dismissal, for any reason, of original action. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953)(decided under former Code 1933, § 3-510).
When te husband sought a divorce against the wife, who thereafter personally served the answer and cross action upon the husband's attorney of record after issuance of process, and service was accomplished upon her, and husband then dismissed the case and moved out of state, the husband's motion to dismiss the answer and cross action for lack of personal service was without merit as cross action was still pending, the court having jurisdiction of both parties and the subject matter. Wright v. Wright, 217 Ga. 511, 123 S.E.2d 557 (1962)(decided under former Code 1933, § 3-510).
Defendant's right to hearing on equitable claims not interfered with.
- When the defendant has set up equitable claims in the defendant's answer by way of setoff or otherwise, dismissal of the complaint does not interfere with the defendant's right to a hearing or trial of such claims. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837 (1937)(decided under former Code 1933, § 3-510).
Defendant entitled to proceed with trial on prayers for affirmative relief.
- In action for specific performance, when the defendant's answer denied material allegations, and by cross action asserted that the defendant was the sole owner of the property and that the plaintiff was unlawfully withholding possession and had committed waste thereon, the defendant's answer clearly involved a prayer for affirmative relief, and after dismissal of the plaintiff's petition the defendant was entitled to proceed with a trial on prayers for affirmative relief against the plaintiff. Griffin v. Lynn, 214 Ga. 300, 104 S.E.2d 442 (1958)(decided under former Code 1933, § 3-510).
Plaintiff was not entitled to a voluntary dismissal since the defendants sought affirmative relief in the defendants' amended answer. Brown v. Liberty County, 247 Ga. App. 562, 544 S.E.2d 738 (2001).
Dismissal extinguished attorney's lien.
- Dismissal of the plaintiff's complaint in a personal injury action extinguished the attorney's lien. Villani v. Edwards, 251 Ga. App. 293, 554 S.E.2d 184 (2001).
Voluntary dismissal without prejudice was not a "final termination" of the case, and so the 45-day "window of opportunity" for moving for penalties and attorney's fees pursuant to O.C.G.A. § 9-15-14 did not begin to run with the plaintiff's voluntary dismissal of the plaintiff's complaint without prejudice, and the plaintiff's motion for penalties and attorney fees was timely; however, the award of attorney's fees was vacated and the case was remanded since the trial court's judgment contained no findings of conduct that authorized the award. Meister v. Brock, 268 Ga. App. 849, 602 S.E.2d 867 (2004).
When voluntary dismissal permitted.
- Habeas court erred by only considering the factors outlined in O.C.G.A. § 9-11-41(a)(1) to determine whether the petitioner's voluntary dismissal was proper and should have analyzed whether voluntary dismissal might otherwise be available upon order of the court pursuant to § 9-11-41(a)(2). Darling v. McLaughlin, 299 Ga. 106, 786 S.E.2d 657 (2016).
When the case does not involve a class action, an appointed receiver, another statute or a counterclaim, a plaintiff may voluntarily dismiss their case without prejudice: (1) by filing a notice of dismissal at any time before the first witness is sworn; (2) by stipulation of the parties; or, when the first two methods are unavailable, (3) upon order of the court and upon the terms and conditions as the court deems proper. Darling v. McLaughlin, 299 Ga. 106, 786 S.E.2d 657 (2016).
2. Effect of Pending Counterclaim
Purpose of counterclaim limitation on voluntary dismissals is to prevent the plaintiff from invoking the jurisdiction of the court and then withdrawing when the defendant seeks affirmative relief from the plaintiff. Worthen v. Jones, 240 Ga. 388, 240 S.E.2d 842 (1977).
Standing.
- In a wrongful death suit by an administrator against a corporation and the corporation's alleged employee that was dismissed after the administrator filed a notice of voluntary dismissal, the corporation lacked standing to challenge the dismissal of a counterclaim filed by the alleged employee since the corporation was not a party to the counterclaim. Video Warehouse, Inc. v. Newsome, 285 Ga. App. 786, 648 S.E.2d 124 (2007).
Liberal construction of limitation.
- Counterclaim limitation on voluntary dismissals has been liberally construed so as to do substantial justice when the plaintiff seeks to voluntarily dismiss in the face of affirmative relief being sought by the defendant. Sandifer v. Lynch, 244 Ga. 369, 260 S.E.2d 78 (1979).
Defendant's right to hearing on counterclaims not to be precluded.
- While dismissal of petition alone would carry answer with it to the extent of defensive matter, dismissal should not affect any counterclaims, and must not preclude the defendant's right to a hearing or trial of such claims. Fender v. Hendley, 196 Ga. 512, 26 S.E.2d 887 (1943)(decided under former Code 1933, § 3-510).
Dropping of unintended party.
- When a person served with process intended for another answers denying that the person is the intended defendant, and counterclaims for malicious use of process, the plaintiff could have moved the court, upon learning of the error, to drop the unintended party pursuant to O.C.G.A. § 9-11-41. Bank South, N.A. v. Tate, 190 Ga. App. 248, 378 S.E.2d 486, cert. denied, 190 Ga. App. 897, 378 S.E.2d 486 (1989).
Counterclaim is not necessarily subject to dismissal because of dismissal of main complaint. Weems v. Weems, 225 Ga. 19, 165 S.E.2d 733 (1969); Employers Liab. Assurance Corp. v. Berryman, 123 Ga. App. 71, 179 S.E.2d 646 (1970).
Dismissal not permitted unless counterclaim can remain pending.
- If a counterclaim has been pled by the defendant prior to service upon the defendant 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. Stanley v. Stanley, 244 Ga. 417, 260 S.E.2d 328 (1979).
Trial court, when considering a plaintiff's motion to dismiss voluntarily when a counterclaim is pending, cannot limit the court's review to the mere filing of defensive pleadings seeking affirmative relief, but must look further to consider whether the claim seeking that affirmative relief can remain pending for independent adjudication by the court once the main claim has been dismissed. Avnet, Inc. v. Wyle Lab., Inc., 265 Ga. 716, 461 S.E.2d 865 (1995).
Counterclaim which presented only defensive matters would not prevent dismissal of a condemnation action. Hinson v. Department of Transp., 230 Ga. 314, 196 S.E.2d 883 (1973).
Motion to intervene as defendant, accompanied by counterclaim, is sufficient to satisfy counterclaim requirement and preclude the plaintiff from voluntarily dismissing the action pending a decision on the motion to intervene. Worthen v. Jones, 240 Ga. 388, 240 S.E.2d 842 (1977).
Dismissal on failure of defendant to object.
- Upon the defendant's failure to object to the voluntary dismissal, the action, including the defendant's counterclaim, becomes dismissed. Moore v. McNair, 145 Ga. App. 888, 245 S.E.2d 25 (1978).
Defendant's failure to object to the plaintiff's voluntary dismissal waived any rights of the defendant to pursue the defendant's counterclaim, even if the defendant vigorously pursued matters relevant to the defendant's counterclaim and failed to acquiesce in the dismissal. D.P.S. Indus., Inc. v. Safeco Ins. Co. of Am., 210 Ga. App. 289, 435 S.E.2d 762 (1993).
By virtue of the codefendant insurer's failure to object, the plaintiff's dismissal of the action against the insurer's codefendant terminated the entire action including the insurer's subrogation cross-claim. Thomas v. Auto Owners Ins. Co., 221 Ga. App. 815, 472 S.E.2d 707 (1996).
In an action involving a promissory note, a trial court improperly granted summary judgment to a bank on the bank's counterclaim because a borrower had voluntarily dismissed the action under O.C.G.A. § 9-11-41(a)(1)(A) a few days prior to the hearing on the summary judgment motion and the bank had not filed any objections to the dismissal; therefore, the dismissal terminated the entire action, and the bank could not go forward with the bank's counterclaim. Mize v. First Citizens Bank & Trust Co., 297 Ga. App. 6, 676 S.E.2d 402 (2009).
Defendant's partial summary judgment motion constituted sufficient objection within the meaning of subsection (a) of O.C.G.A. § 9-11-41 to prevent the automatic dismissal of the defendant's counterclaim pursuant to the plaintiff's filing of the plaintiff's voluntary dismissal. Southern Elec. Distrib. v. Marsh, 229 Ga. App. 821, 495 S.E.2d 43 (1998).
Objection to dismissal.
- Defendant's position letter and brief filed in the probate court in opposition to the plaintiff's motion to dismiss the action constituted a timely objection to the voluntary dismissal which would effect the continued liability of the defendant's counterclaim. Johnson v. Hamilton, 211 Ga. App. 268, 438 S.E.2d 715 (1993).
After a review of the record on appeal, given that the defendant neither dismissed nor waived a compulsory counterclaim, but instead objected to the dismissal of the plaintiff's suit a little more than two weeks after receiving actual notice of the dismissal, that counterclaim was preserved; thus, while the main action was properly dismissed, dismissal of the counterclaim was error. Weaver v. Reed, 282 Ga. App. 831, 640 S.E.2d 351 (2006).
Trial court did not err in refusing to allow voluntary dismissal of custody petition, when the request in the defendant's answer for custody of the children without interference was a prayer for affirmative relief. Sandifer v. Lynch, 244 Ga. 369, 260 S.E.2d 78 (1979).
When a voluntary dismissal is clearly shown to bear a certificate of service so that the defendant is served with notice of the voluntary dismissal prior to the defendant's attempt to initiate a counterclaim, there is no pending counterclaim which might permit the defendant to object to the voluntary dismissal, despite the fact that the defendant may not have received actual notice. Young v. Johnson, 167 Ga. App. 837, 307 S.E.2d 730 (1983).
Issues subjected to partial summary judgment.
- Since the defendant did not initially file a counterclaim, but did seek affirmative relief in the defendant's answer that was the subject of discovery engaged in by the parties long before the dismissal by the plaintiff was sought, the plaintiff was not allowed to dismiss the complaint so as to deprive the court of jurisdiction over issues preserved by the court's order granting the plaintiff a partial summary judgment. Moore v. Moore, 253 Ga. 211, 317 S.E.2d 529 (1984).
Counterclaim for abusive litigation.
- Plaintiff has the right to voluntarily dismiss an action without prejudice even though the defendant has filed a counterclaim for abusive litigation. It is not necessary in order to adjudicate an abusive litigation counterclaim that the underlying action be finally terminated in the defendant's favor. The abusive litigation counterclaim may proceed to adjudication on the claim's merits based on all the relevant facts which have occurred to the point of dismissal, including the dismissal itself. Moore v. Memorial Medical Ctr., Inc., 258 Ga. 696, 373 S.E.2d 204 (1988).
Wholly derivative third party claims.
- Order striking a notice of voluntary dismissal was reversed as when a corporation filed the corporation's notice of voluntary dismissal, no counterclaims or other claims seeking affirmative relief were pending against the corporation; third-party claims did not seek affirmative relief from the corporation, so those claims could not be used to invoke the counterclaim limitation on voluntary dismissals. Mariner Health Care, Inc. v. PricewaterhouseCoopers, LLP, 282 Ga. App. 217, 638 S.E.2d 340 (2006), cert. denied, 2007 Ga. LEXIS 150 (Ga. 2007).
Counterclaim could not be renewed.
- Defendant who voluntarily dismissed without prejudice a compulsory counterclaim could not renew the counterclaim as an original action under O.C.G.A. § 9-2-61 after the plaintiff had voluntarily dismissed with prejudice the main claim without objection by the defendant because renewal of the counterclaim was barred by res judicata. Robinson v. Stokes, 229 Ga. App. 25, 493 S.E.2d 5 (1997).
Pending motion for sanctions could not be used to prevent corporation from voluntarily dismissing action.
- Corporation did not have prior knowledge that the action would be dismissed as requested in a limited liability partnership's motion for sanctions for alleged discovery abuses when the notice of voluntary dismissal was filed and the pending motion for sanctions was not a basis for invoking the counterclaim limitation on voluntary dismissals. Mariner Health Care, Inc. v. PricewaterhouseCoopers, LLP, 282 Ga. App. 217, 638 S.E.2d 340 (2006), cert. denied, 2007 Ga. LEXIS 150 (Ga. 2007).
Res judicata inapplicable.
- Because a commercial landlord had dismissed the landlord's prior dispossession action against a tenant upon payment by the tenant pursuant to a settlement of the amount due and owing and such dismissal did not indicate that the dismissal was with prejudice, the dismissal was deemed without prejudice and was accordingly not an adjudication on the merits pursuant to O.C.G.A. § 9-11-41(a); accordingly, it was error for the trial court to have barred the landlord's claim for common area maintenance charges in the landlord's second action on the ground of res judicata as the requirement of a previous adjudication on the merits of the claim was not met pursuant to O.C.G.A. § 9-12-40. Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 634 S.E.2d 406 (2006).
Right of voluntary dismissal to both parties.
- It is apparent that O.C.G.A. § 9-11-41(c) simply extends the same right of voluntary dismissal afforded to plaintiffs by O.C.G.A. § 9-11-41(a) to parties that have filed counterclaims, cross-claims, or third-party claims; so just as the plaintiffs may voluntarily dismiss the plaintiffs' actions, defendants filing counterclaims, cross-claims, and third-party claims can voluntarily dismiss the defendants' respective claims; nothing in the plain language of O.C.G.A. § 9-11-41(c) extends the counterclaim limitation to wholly derivative third-party claims for contribution or indemnification so that such claims can be used to bar a plaintiff's voluntary dismissal of the plaintiff's action. Mariner Health Care, Inc. v. PricewaterhouseCoopers, LLP, 282 Ga. App. 217, 638 S.E.2d 340 (2006), cert. denied, 2007 Ga. LEXIS 150 (Ga. 2007).
3. Multiple Dismissals
Last sentence of subsection (a) refers to filing of a third notice of dismissal by one who has already filed two prior dismissals. Bowman v. Ware, 133 Ga. App. 799, 213 S.E.2d 58 (1975).
Only voluntary dismissals filed by plaintiff are to be counted for purposes of the last sentence of subsection (a) of O.C.G.A. § 9-11-41. Reese v. Frazier, 158 Ga. App. 237, 279 S.E.2d 529 (1981).
Only one of two prior dismissals was voluntary.
- Because a plaintiff initially filed a personal injury suit in state court, voluntarily dismissed that case and re-filed the case in federal court, after which the federal court dismissed the federal claims asserted and refused to exercise jurisdiction over the state claims, resulting in the claims' dismissal as well, there was only one voluntary dismissal, and the trial court's dismissal of the later re-filing in state court under O.C.G.A. § 9-11-41(a)(3) was error. Troup v. Chambers, 280 Ga. App. 392, 634 S.E.2d 191 (2006).
First voluntary dismissal under subsection (a) is always without prejudice and does not operate as an adjudication on the merits. Piper v. Piper, 139 Ga. App. 19, 227 S.E.2d 842 (1976).
Second voluntary dismissal.
- When plaintiff's first complaint was filed before July 1, 2003, the effective date of the amendment to O.C.G.A. § 9-11-41(a)(3), and the second and third complaints were filed after July 1, 2003, the 2003 amendment did not apply retroactively to make the voluntary dismissal of the second complaint act as an adjudication on the merits. Davis v. Lugenbeel, 283 Ga. App. 642, 642 S.E.2d 337 (2007), cert. denied, 2007 Ga. LEXIS 518 (Ga. 2007).
Trial court erred in dismissing a vehicle passenger's third complaint based on the amended O.C.G.A. § 9-11-41(a), which applied only to cases when the original complaint was filed on or after July 1, 2003. Because the first complaint was filed before July 1, 2003, the pre-amendment version of § 9-11-41(a) applied; accordingly, the passenger's second voluntary dismissal of the passenger's complaint did not operate as an adjudication on the merits. Shy v. Faniel, 292 Ga. App. 253, 663 S.E.2d 841 (2008).
"Renewal suit" filed by a limited liability company (LLC) and the company's manager against three corporations was properly dismissed under O.C.G.A. §§ 9-2-5(a) and9-2-44(a) as the LLC and manager's prior and nearly identical suit against the corporation had been dismissed and an appeal was pending. However, the second dismissal should have been without prejudice under O.C.G.A. § 9-11-41(b) as the corporation's plea in abatement did not challenge the merits of that suit. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23, 666 S.E.2d 446 (2008).
There was no evidence of record to support the trial court's finding, as a matter of fact, that the first complaint had not been served on the restaurant before it was voluntarily dismissed and, thus, the customer's second voluntary dismissal of the complaint constituted an adjudication on the merits as a matter of law. Cracker Barrel Old Country Store, Inc. v. Robinson, 341 Ga. App. 285, 800 S.E.2d 372 (2017).
Third voluntary dismissal.
- O.C.G.A. § 9-11-41 provides that a third notice of dismissal from any court of an action based upon the same claim operates as an adjudication on the merits. Harris v. Sampson, 162 Ga. App. 241, 290 S.E.2d 165 (1982).
Third voluntary dismissal does not operate as an adjudication on the merits if any one of the previous actions is not based on or does not include the claim presented in the third action. Southeastern Hose, Inc. v. Prudential Ins. Co. of Am., 167 Ga. App. 356, 306 S.E.2d 308 (1983).
If the same affirmative relief has been sought against a party three times previously and the action has been voluntarily dismissed on each occasion, the result is an "adjudication upon the merits" of the claims against the party and there can be no further attempt on the part of the plaintiff or other claimant to secure the affirmative relief from that party. T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga. App. 198, 355 S.E.2d 76 (1987).
O.C.G.A. § 9-11-41, which provides a fourth-time defendant with a res judicata defense, cannot be construed as creating a conclusive and absolute right on the part of a three-time defendant to obtain affirmative relief for the defendant should the defendant subsequently choose to seek it as a plaintiff. T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga. App. 198, 355 S.E.2d 76 (1987).
Defendant's set-off or recoupment sought affirmative relief against the plaintiff and, therefore was, in effect, a "counterclaim" rather than a "defense"; accordingly, the "defense" was barred as having been sought in three previously dismissed actions. T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga. App. 198, 355 S.E.2d 76 (1987).
Promissory note maker's third voluntary dismissal adjudicated only the payee's nonliability as to the maker's claims arising from the note, and did not adjudicate the liability of the maker to the payee on the note itself. T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga. App. 198, 355 S.E.2d 76 (1987).
In an action against an employee and an employer arising out of an automobile accident, the plaintiff's third dismissal of the plaintiff's claim against the employee acted as an adjudication on the merits and, therefore, the plaintiff was barred from recovery against the employer under the doctrine of respondeat superior. Hospital Auth. v. Walker, 224 Ga. App. 163, 480 S.E.2d 849 (1997).
After the homeowners brought three actions against the home builder and the builder's principal officer alleging construction defects and the homeowners voluntarily dismissed all three actions, the third dismissal, pursuant to the former provisions of O.C.G.A. § 9-11-41(a), constituted an adjudication against the homeowners; it was inconsequential that the third action resulted in an unconfirmed arbitration award in favor of the homeowners before the homeowners voluntarily dismissed that action and filed suit seeking confirmation of the arbitration award. Ford v. Tycam Home Builders, Inc., 267 Ga. App. 581, 601 S.E.2d 133 (2004).
Two voluntary dismissals barred third action despite additional plaintiffs.
- Trial court correctly dismissed a shipyard owner's third civil action arising from the same set of facts under the two-dismissal rule of O.C.G.A. § 9-11-41(a)(1) and (a)(3) and the res judicata rule of O.C.G.A. § 9-12-40 because, although there were additional plaintiffs in the third action, each of the three actions was based on the apparently complex initial financing for, and subsequent failure of, the shipyard. Global Ship Sys., LLC v. RiverHawk Group, LLC, 334 Ga. App. 860, 780 S.E.2d 697 (2015), cert. denied, No. S16C0508, 2016 Ga. LEXIS 231 (Ga. 2016).
Adjudication on the merits in wrongful death claim.
- Trial court recognized that the wrongful death claim had been voluntarily dismissed on three previous occasions, but held that each parent had a right to assert a wrongful death cause of action independent of the other so that an adjudication on the merits of the mother's claim would occur only after three such actions in which the mother was a plaintiff were voluntarily dismissed. Since she had brought and voluntarily dismissed the action only twice prior to filing the present action, the trial court found there was no adjudication on the merits. Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Multiple dismissals by parents in wrongful death action.
- Trial court erred by denying the defendant's motion to dismiss since the present wrongful death action pending against the defendant was previously filed and voluntarily dismissed three times, once separately by the father, once by both parents consolidated action, and once separately by the mother. Accordingly, there was an adjudication on the merits. Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Prior actions in the form of third-party complaints were subject to the provisions that a third notice of dismissal based upon the same claim operates as an adjudication on the merits. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).
Involuntary Dismissal
1. In General
Federal rule contrasted.
- Subsection (b) of this section is not as specific as its federal rule counterpart, Rule 41(b) Fed. R. Civ. P., in providing for findings of fact. Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976).
Construction of subsection (b).
- Construction of subsection (b) of this section which will avoid dismissals of actions on technical grounds, to the end that all actions shall be tried on their merits, is consistent with the purposes of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969).
Judge's options under subsection (b).
- Motion to dismiss under subsection (b) of this section gives judge three possible courses: (1) do nothing until the defendant's evidence is in; (2) grant the motion, with a provision in the order that it was not upon the merits; or (3) determine the facts and sustain the motion, without providing in the order that it should not be upon the merits. Lawyers Coop. Publishing Co. v. Bekins Moving & Storage Co., 135 Ga. App. 12, 217 S.E.2d 372 (1975).
Denial construed as deferral of judgment.
- After the defendant moved for involuntary dismissal pursuant to subsection (b) of O.C.G.A. § 9-11-41, and the trial court neither granted the motion nor deferred judgment, given that the subsection does not provide for denial of such a motion and that the court went on to hear evidence from the defendant, the "denial" of the motion was construed as a deferral of judgment. Market Place Shopping Ctr. v. Basic Bus. Alternatives, Inc., 227 Ga. App. 419, 489 S.E.2d 162 (1997).
Motion for directed verdict in bench trial.
- When there is a bench trial, technically a motion for directed verdict does not lie; instead, it is treated as a motion for involuntary dismissal under O.C.G.A. § 9-11-41. Franklin v. Demico, Inc., 179 Ga. App. 775, 347 S.E.2d 718 (1986); Emory Rent-All, Inc. v. Lisle Assocs. Gen. Contractor, 212 Ga. App. 516, 441 S.E.2d 926 (1994).
Motion for directed verdict in a nonjury trial is procedurally incorrect, and the motion will be treated as one for involuntary dismissal under subsection (b) of O.C.G.A. § 9-11-41. Chamlee v. DOT, 182 Ga. App. 120, 354 S.E.2d 701 (1987); Century 21 Mary Carr & Assocs. v. Jones, 204 Ga. App. 96, 418 S.E.2d 435 (1992); Grebel v. Prince, 232 Ga. App. 361, 501 S.E.2d 538 (1998).
Failure to appear at pretrial hearing.
- Authority of the trial court to dismiss the plaintiff's complaint for failure to appear at a pretrial hearing is clearly established by O.C.G.A. § 9-11-41. Turner v. T & T Oldsmobile, Inc., 154 Ga. App. 228, 267 S.E.2d 833 (1980).
O.C.G.A. § 9-11-41 authorizes the trial court, upon motion, to dismiss any action for failure of the plaintiff to comply with a court order to appear at a pretrial hearing. Weeks v. Weeks, 243 Ga. 416, 254 S.E.2d 366 (1979); Scott v. W.S. Badcock Corp., 161 Ga. App. 826, 289 S.E.2d 769 (1982).
Entry upon motion of plaintiff not authorized.
- Entry of an involuntary dismissal was not authorized after the plaintiff introduced no evidence and there were no facts before the court from which the court could determine whether there was a right to relief, and when the dismissal was entered upon motion of the plaintiff, rather than the defendant. Roberts v. Prakas, 217 Ga. App. 397, 457 S.E.2d 688 (1995).
No authority to set aside dismissal after term expires.
- Trial court has no jurisdiction to set aside dismissal and reinstate cause after expiration of the term at which the cause was dismissed; this rule was not changed by enactment of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) and applies with the same force. Askren v. Allen, 132 Ga. App. 292, 208 S.E.2d 165 (1974).
Election contest petition properly dismissed.
- In an election contest under O.C.G.A. § 21-2-522 regarding a race for lieutenant governor, the small number of irregularities involved with the direct-recording electronic (DRE) voting system and the lack of evidence of misconduct by any election official was insufficient to overcome the winner's margin of victory of 123,172 votes. Further, the trial court did not err in limiting discovery of the DRE machines or in denying the challengers' motion for a continuance and jury trial demand. Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).
Summary judgment.
- O.C.G.A. § 9-11-41 does not apply to calling of motion for summary judgment. Holt v. Bray, 159 Ga. App. 43, 282 S.E.2d 693 (1981).
Failure to appear.
- Trial court abused the court's discretion when the court dismissed an appeal from a special master for failure to appear since the case was not in the first five cases on the published calendar and the appellant and the appellant's counsel were not required to be in court. Broadwater v. City of Danville, 184 Ga. App. 886, 363 S.E.2d 316 (1987).
Dismissal of a claim with prejudice for the plaintiff's failure to appear constituted a nonamendable defect on the face of the record, and the trial court erred in denying the plaintiff's motion to set aside the judgment. Howard v. AMLI Realty Co., 226 Ga. App. 372, 486 S.E.2d 649 (1997).
Because an injured party's attorney did not obtain information about the time and location of a peremptory calendar call in the month after learning of it, and because the attorney had actual notice of the calendar call, the trial court properly dismissed the injured party's personal injury case without prejudice under Ga. Unif. Super. Ct. R. 20(A), 14, and O.C.G.A. § 9-11-41(b). Hammonds v. Sherman, 277 Ga. App. 498, 627 S.E.2d 110 (2006).
Failure of defense counsel to attend pretrial conference.
- While the plaintiff's failure to appear at a pretrial hearing may result in the dismissal of the complaint at the motion of the defendant, who is statutorily entitled to such a remedy, a plaintiff does not have a similar statutory weapon and striking the defendant's answer and entering judgment against the defendant is too harsh a sanction to impose upon the defendant for defense counsel's failure to appear at a pretrial conference. Boatright v. First Nat'l Bank, 166 Ga. App. 167, 303 S.E.2d 506 (1983).
Failure to comply with order of court.
- O.C.G.A. § 9-11-41 authorized the trial court to dismiss an action for failure of the plaintiff to comply with the court's order to file an amended complaint. Omni Express, Inc. v. Kennedy, 216 Ga. App. 485, 455 S.E.2d 83 (1995).
When a trial court orders a plaintiff to make a more definite statement of his or her claims, the court should identify the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) and the court also should warn the plaintiff about the potential consequences of a failure to replead in a way that conforms to these requirements; if the court still cannot ascertain the nature of the claims that the plaintiff seeks to assert, the court may enter another order to replead again, but the trial court and the defendants need not become caught in an endless cycle of attempts to replead, and if it appears that a plaintiff is unable or unwilling to plead in conformance to the Civil Practice Act and the directions of the court, the court may be authorized in some cases to dismiss the complaint under O.C.G.A. § 9-11-41(b), not for a failure to state a claim, but for disregard of the rules and orders of the court. Bush v. Bank of N.Y. Mellon, 313 Ga. App. 84, 720 S.E.2d 370 (2011).
Dismissal of earlier complaint asserting same claim for relief.
- Trial court did not err in granting a motion for summary judgment based upon the defense of res judicata, following dismissal of an earlier complaint, containing exactly the same material allegations and asserting the same claim for relief, for failure to answer interrogatories. Brantley v. Sparks, 167 Ga. App. 323, 306 S.E.2d 337 (1983).
Case is remanded when court fails to make findings of fact and conclusions of law in the court's dismissal order, and when neither party waives these findings and conclusions. L & L Elec. Serv., Inc. v. L.K. Comstock & Co., 168 Ga. App. 780, 310 S.E.2d 557 (1983).
Motion for nonsuit.
- Defendant's motion for a nonsuit made under former law which was specifically repealed by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) was construed as a motion for involuntary dismissal pursuant to O.C.G.A. § 9-11-41. National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 297 S.E.2d 740 (1982).
Trial court erred in granting defendant's motion to dismiss. See McKellar v. Associates Fin. Servs., 168 Ga. App. 9, 308 S.E.2d 410 (1983).
In the absence of an explicit order in an executor's renewal action, O.C.G.A. § 9-2-61(a), requiring the executor to identify the executor's expert witnesses by a date certain, the executor's failure to do so did not warrant the extreme sanction of dismissal under O.C.G.A. § 9-11-41. Porter v. WellStar Health Sys., 299 Ga. App. 481, 683 S.E.2d 35 (2009), cert. denied, No. S09C2031, 2010 Ga. LEXIS 80 (Ga. 2010).
Trial court erred in denying motion for involuntary dismissal.
- See Sentry Eng'g & Constr., Inc. v. American Olean Tile Co., 172 Ga. App. 769, 324 S.E.2d 591 (1984).
Dismissal of counterclaim was error when plaintiff voluntarily dismissed action.
- When the defendant appeals the dismissal of the defendant's counterclaim following the plaintiff bank's voluntary dismissal without prejudice of the bank's suit for the collection of a debt incurred by a third party for whom the plaintiff mistook the defendant, and the defendant had answered and counterclaimed for malicious use and abuse of process, the trial court erred in dismissing the defendant's counterclaim on the basis that the voluntary dismissal without prejudice of the main action was not a "disposition" for the purposes of the claim for abusive litigation. Roberson v. Central Fid. Bank, 190 Ga. App. 382, 378 S.E.2d 698, cert. denied, 190 Ga. App. 898, 378 S.E.2d 698 (1989).
Dismissal of counterclaim for failure to allege facts entitling to relief.
- When an attorney filed a motion to withdraw from the representation of a client, a court of law permitted the attorney's withdrawal, and the client acquiesced to the withdrawal, the client's allegations in the counterclaim for damages based upon the attorney's withdrawal, in a suit in which the attorney sought payment of attorney's fees, set forth no facts that could be construed to entitle the client to relief from the unpaid fees as the client was barred from collaterally attacking the withdrawal ruling by way of a counterclaim. Therefore, the trial court properly dismissed the client's counterclaim. Patton v. Turnage, 260 Ga. App. 744, 580 S.E.2d 604 (2003).
Trial court's dismissal of counterclaim with prejudice due to the defendants' failure to appear at the call of the case constituted a nonamendable defect on the face of the record, and thus, the trial court erred in denying the defendants' motion to set aside the judgment. Bonner v. Green, 263 Ga. 773, 438 S.E.2d 360 (1994).
Trial court's dismissal with prejudice of the defendant's counterclaim due to the defendant's failure to attend a pre-trial conference and the subsequent judgment in favor of the plaintiff on the complaint was an abuse of discretion. Maupin v. Vincent, 245 Ga. App. 635, 538 S.E.2d 529 (2000).
Appeal of denial of motion for involuntary dismissal.
- One appealing the denial of a motion for involuntary dismissal under subsection (b) of O.C.G.A. § 9-11-41 may not raise for the first time on appeal a ground not specifically raised in the original motion. Magnus Homes, L.L.C. v. DeRosa, 248 Ga. App. 31, 545 S.E.2d 166 (2001).
Standard of review.
- Dismissal pursuant to O.C.G.A. § 9-11-41 is not the same as a directed verdict in a jury trial, which may be upheld only if the evidence demands a particular outcome; it does not require the trial court to construe the evidence in the light most favorable to the non-moving party, and can only be reversed on appeal when the evidence demands a contrary finding. Smith v. Georgia Kaolin Co., 269 Ga. 475, 498 S.E.2d 266 (1998).
Trial court's involuntary dismissal of a claim pursuant to O.C.G.A. § 9-11-41(b) may be reversed only if the evidence demands a contrary finding. Smith v. Northside Hosp., Inc., 302 Ga. 517, 807 S.E.2d 909 (2017).
Dismissal for lack of proper and timely service.
- Since the plaintiff did not perfect service until after the running of the statute of limitations, the claim should have been dismissed without prejudice as there had been no adjudication of the claim on the claim's merits and the court erred in dismissing the claim with prejudice. Wilson v. Ortiz, 232 Ga. App. 191, 501 S.E.2d 247 (1998).
Involuntary dismissal erroneously denied.
- Because it appeared from the testimony that a widow's standard of living was improved after receiving an award of year's support after the decedent's death, and that the widow had the resources independent of the year's support to afford those improvements, the award was erroneously entered; thus, the trial court erred in denying a motion for involuntary dismissal filed by the decedent's only child. Anderson v. Westmoreland, 286 Ga. App. 561, 649 S.E.2d 820 (2007), cert. denied, 2007 Ga. LEXIS 676 (Ga. 2007).
Dismissal deemed without prejudice unless stated otherwise.
- Superior court correctly held that a claim for attorney's fees under O.C.G.A. § 9-15-14 must be made by motion, not by answer or counterclaim. Neither was summary judgment error under a § 9-15-14 claim for the superior court's failure to specify that its dismissal of such claims was without prejudice. In this regard, the Georgia Civil Practice Act (see O.C.G.A. Ch. 11, T. 9) makes it clear that any dismissal in which dismissal with prejudice is not specified is deemed to be a dismissal without prejudice under O.C.G.A. § 9-11-41(b). Thus, to the extent that the complained of counterclaims for abusive litigation rested on § 9-15-14, summary judgment thereon was not error for the superior court's failure to dismiss upon the word "dismissed" alone. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).
Involuntary dismissal of declaratory action must be without prejudice.
- Involuntary dismissal of a declaratory-judgment action for want of justiciability does not operate as an adjudication on the merits and is instead an issue of subject-matter jurisdiction. Accordingly, dismissal must be without prejudice. Pinnacle Benning, LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 724 S.E.2d 894 (2012).
Dismissal of action without prejudice granted.
- Even though the plaintiffs failed to show good cause for the plaintiffs' failure to serve the defendants within the 120 day service period under Fed. R. Civ. P. 4(m) and failed to diligently serve the defendants after the expiration of the statute of limitations, the action was dismissed without prejudice because of the refiling opportunities accorded under O.C.G.A. § 9-2-61. Lau v. Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999).
When clients of a law firm twice filed legal malpractice complaints against the law firm and then twice voluntarily dismissed those complaints because the clients failed to attach an expert affidavit, as required in a legal malpractice case, the trial court properly dismissed the clients' third complaint, which did not have an affidavit, despite the plaintiffs' inclusion of a paragraph under O.C.G.A. § 9-11-41(b) that sought to justify the clients' failure to include an affidavit on grounds that the limitations period was about to expire because the paragraph in question was patently false and was a sham pleading. Smith v. Morris, Manning & Martin, LLP, 254 Ga. App. 355, 562 S.E.2d 725 (2002).
Motion for involuntary dismissal properly denied.
- Superior court did not err in denying a land and development company's motion for involuntary dismissal pursuant to O.C.G.A. § 9-11-41(b) in a county's action under former O.C.G.A. § 24-8-1 (see now O.C.G.A. § 24-11-2) to establish a copy of an ordinance that had been lost because the superior court thoroughly reviewed the evidence upon which the court relied, including the testimony of the company's forensic expert and several witnesses who were county officials when the ordnance was enacted and their successors in office, as well as the dovetailing of subsequent amendments to the sections and subsections of the proffered copy; that evidence was sufficient to support the superior court's finding that the copy was a true and correct duplicate of the original ordinance adopted at the meeting of the county board of commissioners. East Georgia Land & Dev. Co. v. Baker, 286 Ga. 551, 690 S.E.2d 145 (2010).
Involuntary dismissal of federal complaint.
- Trial court erred when the court granted a nonresident's motion to dismiss a driver's third complaint because the complaint was not barred by O.C.G.A. § 9-2-61 since the driver never served the nonresident with the second federal complaint, and thus, it was void and could not amount to a renewal of the first complaint; the third complaint was intended as a renewal of the first complaint, which was voluntarily dismissed after the expiration of the applicable period of limitation, and the federal dismissal was not only involuntary but also dismissed without prejudice for lack of subject matter jurisdiction. Crawford v. Kingston, 316 Ga. App. 313, 728 S.E.2d 904 (2012).
Trial court erred when the court granted a nonresident's motion to dismiss a driver's third complaint because the dismissal of the driver's second federal complaint was involuntary under O.C.G.A. § 9-11-41(a)(2), rather than voluntary under O.C.G.A. § 9-11-41(a)(1), and could not operate as an adjudication on the merits under § 9-11-41(a)(3); even though the driver requested the dismissal of the federal action, the dismissal itself was by an order of the federal court for a failure of the federal court's own jurisdiction. Crawford v. Kingston, 316 Ga. App. 313, 728 S.E.2d 904 (2012).
2. For Failure to Prosecute
Applies only to cases awaiting disposition.
- O.C.G.A. § 9-11-41(e) applies to cases awaiting disposition, not to cases already adjudicated by verdict or judgment. Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 572 S.E.2d 664 (2002).
Stiff sanctions intended for failure to prosecute.
- Purpose of subsection (b) of this section is to make available a stiff sanction against the plaintiffs who fail to prosecute claims in filed cases, although it remains within the discretion of the trial judge to provide in order of dismissal that it shall not operate as an adjudication on the merits. Trice v. Howard, 234 Ga. 189, 214 S.E.2d 907 (1975).
Power to dismiss for want of prosecution is an inherent power of the court, and subsection (b) of this section merely codifies this power in part. Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892, 204 S.E.2d 770 (1974).
Court may dismiss on own initiative.
- Although subsection (b) of this section speaks of a motion by the defendant for dismissal for want of prosecution, the court may also act on the court's own without a motion. Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892, 204 S.E.2d 770 (1974).
Discretion of court.
- Order of dismissal for failure to prosecute under subsection (b) of this section is discretionary and is subject to appellate review for abuse of discretion. Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979); Mosley v. Lankford, 244 Ga. App. 209, 260 S.E.2d 322 (1979).
All circumstances of case considered.
- Dismissal with prejudice for failure to prosecute should not be based solely on absence, but on all circumstances of the case. Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979); Maolud v. Keller, 153 Ga. App. 268, 265 S.E.2d 86 (1980).
Failure of plaintiff in certiorari to see that timely proper answer is filed is a "failure to prosecute" within the meaning of subsection (b) of this section. City of Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980).
Failure to be diligent in determining delay.
- Trial court's finding that the appellants had not been diligent in determining that there would be a delay was not supported by the record which revealed that appellants' counsel ordered the transcript in a timely manner, made timely payment, and made reasonable inquiry as to the status of its preparation, and that the court reporter knew the reporter needed to complete the transcript as soon as possible, that the reporter was aware of the 30-day deadline, and that the earliest the reporter could complete it was the end of July. Welch v. Welch, 212 Ga. App. 667, 442 S.E.2d 857 (1994).
Res judicata effect of dismissal for failure to prosecute.
- Dismissals for want of prosecution under subsection (b) of this section operate as an adjudication upon the merits, when the orders of dismissal do not otherwise specify, and are thus res judicata. Askren v. Allen, 132 Ga. App. 292, 208 S.E.2d 165 (1974).
When a dismissal for failure to prosecute is involuntary under subsection (b) of this section, and the trial court does not specify that such dismissal is without prejudice, the dismissed action is res judicata as to essentially the same action brought at a later time. Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892, 204 S.E.2d 770 (1974).
Application of estoppel by judgment.
- Under subsection (b) of this section, dismissal for want of prosecution both bars a subsequent action on the same claim and establishes facts to which an estoppel by judgment can be applied in subsequent litigation on a different claim. Trice v. Howard, 234 Ga. 189, 214 S.E.2d 907 (1975).
Alleging attorney's negligence.
- Because negligence of a party's attorney did not appear on the face of the record, it was not a proper ground of a motion to set aside the trial court's order dismissing suit for failure to prosecute. Lankford v. Karkotsky, 171 Ga. App. 283, 319 S.E.2d 117 (1984).
Slight tardiness to trial not grounds for dismissal.
- Trial court would not dismiss for failure to prosecute when the plaintiff showed up for trial one-half hour late. Accurate Bonding Co. v. Ponder, 176 Ga. App. 331, 335 S.E.2d 886 (1985).
Failure to appear at hearing.
- Trial court exceeded the court's authority in adjudicating an appeal by an applicant for letters of administration of an estate based on the applicant's failure to appear at a scheduled hearing. Boyd v. Crawford, 231 Ga. App. 169, 498 S.E.2d 762 (1998).
Trial court erred in dismissing an application for confirmation of an arbitration award filed by an LLC against three individuals with prejudice for want of prosecution as the appeals court agreed with the movant LLC that it appeared for the only published hearing; moreover, dismissal of an action was restricted for failure to appear at the call of the case to one without prejudice. Wolfpack Enters. v. Arrington, 272 Ga. App. 175, 612 S.E.2d 35 (2005).
Attorney's motion to dismiss a contempt proceeding on grounds that no one physically appeared to present the charges was properly denied as Georgia law did not require anyone to prosecute a contempt action, the conduct charged already occurred and was of record, and a trial judge could make a finding of contempt instanter; the judge, sitting as the trier of fact and law in the proceeding, could review the evidence already in existence and make an order based thereon, and the attorney was free to present evidence in mitigation. In re Scheib, 283 Ga. App. 328, 641 S.E.2d 570 (2007).
Trial court did not err in dismissing the plaintiff's claims without prejudice for want of prosecution for failure to appear at a calendar call because the trial court rebutted the plaintiff's assertion that the plaintiff did not receive written notice of the no service/default calendar call; and counsel had a duty to keep informed as to the progress of the case as the trial court's docket, including dates and times of any calendar calls or hearings, was published on the clerk of court's website. Atlanta Bus. Video, LLC v. FanTrace, LLC, 324 Ga. App. 559, 751 S.E.2d 169 (2013).
Failure to attend hearing due to miscommunication.
- Trial court abused the court's discretion in dismissing a father's petition for modification of child custody based on the failure of the father's attorney to attend a hearing after it was shown that such failure was due to miscommunication and a well-founded misunderstanding on the part of the attorney. Wallace v. Laughlin, 217 Ga. App. 444, 459 S.E.2d 556 (1995).
Courts without authority to dismiss with prejudice.
- The 1982 amendment of subsection (b) of O.C.G.A. § 9-11-41, providing that dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, removed from the courts the authority to dismiss with prejudice for failure of the plaintiff to prosecute. Leach v. Aetna Cas. & Sur. Co., 172 Ga. App. 785, 324 S.E.2d 494 (1984), aff 'd, 254 Ga. 265, 330 S.E.2d 596 (1985); All South Mini Storage #2, Ltd. v. Woodcon Constr. Servs., 205 Ga. App. 393, 422 S.E.2d 282 (1992); Century 21 Mary Carr & Assocs. v. Jones, 204 Ga. App. 96, 418 S.E.2d 435 (1992).
When the trial court's order specifically stated that dismissal was for want of prosecution, the court had no authority to further direct that the dismissal operate with prejudice. Peachtree Winfrey Assocs. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226, 398 S.E.2d 253 (1990).
Pursuant to subsection (b) of O.C.G.A. § 9-11-41, a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; therefore, it follows that such a dismissal cannot be with prejudice. Lloyd v. Whitworth, 210 Ga. App. 714, 437 S.E.2d 636 (1993).
Because the court was unable to determine the trial court's grounds for granting a defendant's motion to dismiss with prejudice after the trial court announced during the hearing that the dismissal would be without prejudice, and appeared to indicate that the dismissal was for failure to prosecute, and because the court was unable to determine from the record whether that grant was error, remand was required for clarification. Wilken Invs., LLC v. Plamondon, 310 Ga. App. 146, 712 S.E.2d 576 (2011).
Trial court erred in dismissing a case with prejudice for failure to prosecute because a dismissal for failure to prosecute was not a ruling on the merits; nor, was there an adjudication on the merits under the voluntary dismissal rule of O.C.G.A. § 9-11-41(a)(3) because the dismissal was involuntary. Chrysler Financial Services Americas, LLC v. Benjamin, 325 Ga. App. 579, 754 S.E.2d 157 (2014).
Dismissal of a noncompulsory counterclaim for failure to prosecute does not operate as an adjudication on the merits under subsections (b) and (c) of O.C.G.A. § 9-11-41 and does not bar the later reassertion of the claim. Idowu v. Lester, 176 Ga. App. 713, 337 S.E.2d 386 (1985).
Failure to respond to jury calendar calls.
- Appeals in the superior court from writs of possession granted by a magistrate court were properly dismissed for failure to prosecute since the orders dismissing the appeals recited that the actions were dismissed because neither the appellant nor counsel for the appellant responded to the jury calendar calls of those actions. Westwind Corp. v. Washington Fed. Sav. & Loan Ass'n, 195 Ga. App. 411, 393 S.E.2d 479 (1990).
Dismissal of a complaint for want of prosecution was not an adjudication on the merits; thus, collateral estoppel and res judicata did not bar a subsequent complaint. Valdez v. R. Constr., Inc., 285 Ga. App. 373, 646 S.E.2d 329 (2007).
Involuntary dismissal upheld and presumption of regularity attached.
- Because an individual who filed a negligence action against a driver failed to show that the judge who dismissed that action for want of prosecution lacked the authority to do so because the judge was not assigned to the case, and also failed to establish any reversible error, a presumption of regularity attached to the court's order which the individual was unable to overcome. Ward v. Swartz, 285 Ga. App. 788, 648 S.E.2d 114 (2007).
Dismissal improperly granted.
- Trial court erroneously dismissed a litigant's petition for a writ of mandamus, and erroneously relied on dicta, in finding that orders setting a pre-trial conference in the underlying medical malpractice action were merely "housekeeping or administrative orders" that did not suspend the running of the five-year period under O.C.G.A. §§ 9-2-60(b) and9-11-41(e). Instead, such orders tolled the running of the five-year rule if the orders were in writing, signed by the trial judge, and properly entered in the records of the trial court. Zepp v. Brannen, 283 Ga. 395, 658 S.E.2d 567 (2008).
Trial court abused the court's discretion in dismissing the case pursuant to O.C.G.A. § 9-11-41(b) because the record showed that the failure to appear occurred at oral argument on an opposing party's motion to reconsider a motion for summary judgment that had already been litigated, the plaintiff had filed two written responses to the motion, neither party requested oral argument, and the plaintiff diligently prosecuted the case prior to the oral argument. Denney v. Crenshaw, 355 Ga. App. 648, 845 S.E.2d 401 (2020).
No entitlement to attorney's fees.
- Pursuant to O.C.G.A. § 9-11-41(b), since the dismissal of plaintiff individual's complaint was for failure to prosecute, such dismissal did not operate as an adjudication on the merits, and the defendant corporation was not a "prevailing party" for purposes of entitlement to attorney fees and costs under the parties' contract. Floyd v. Logisticare, Inc., 255 Ga. App. 702, 566 S.E.2d 423 (2002).
3. After Presentation of Plaintiff's Evidence
Power of judge to decide merits on motion at close of plaintiff's evidence.
- Subsection (b) of this section provides that upon the defendant's motion to dismiss at the close of the plaintiff's evidence in a nonjury trial, the judge has the power to adjudicate the case on the merits. Trump v. Scott Exterminating Co., 138 Ga. App. 866, 227 S.E.2d 859 (1976).
Under subsection (b) of this section, the trial judge in a nonjury case has express power to adjudicate the case on the merits at the conclusion of the plaintiff's case. Pichulik v. Air Conditioning & Heating Serv. Co., 123 Ga. App. 195, 180 S.E.2d 286 (1971); Kennery v. Mosteller, 133 Ga. App. 879, 212 S.E.2d 447 (1975).
Failure to establish right to relief.
- In a quiet title action, in order to show an unbroken chain of title, it was necessary for the plaintiff to show that the individuals who deeded the land were the heirs-at-law of the prior owner who had died intestate; because the plaintiff failed to establish this fact, the court was not required to find in the plaintiff's favor, and involuntary dismissal of the action was not in error. Smith v. Georgia Kaolin Co., 269 Ga. 475, 498 S.E.2d 266 (1998).
Evidence need not be considered in light most favorable to plaintiff.
- If trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a nonjury case, the judge must weigh the evidence; but there is no obligation in subsection (b) of this section that the judge, in determining the facts, must consider the plaintiff's evidence in the light most favorable to the plaintiff. Pichulik v. Air Conditioning & Heating Serv. Co., 123 Ga. App. 195, 180 S.E.2d 286 (1971); Kennery v. Mosteller, 133 Ga. App. 879, 212 S.E.2d 447 (1975); Control, Inc. v. H-K Corp., 134 Ga. App. 349, 214 S.E.2d 588 (1975); Chamlee v. DOT, 189 Ga. App. 334, 375 S.E.2d 626, cert. denied, 189 Ga. App. 911, 375 S.E.2d 626 (1988); Ivey v. Ivey, 266 Ga. 143, 465 S.E.2d 434 (1996).
Dismissal of a case pursuant to O.C.G.A. § 9-11-41(b) is not tantamount to granting a directed verdict, and a trial court is not required to construe the evidence in the plaintiff's favor; the trial court in a bench trial was authorized to find that a decedent's sister lacked all of the facts when the sister initially agreed to compromise an insurance claim, and that any alleged oral agreement resolving the parties' dispute was not enforceable. Alexander v. Watson, 271 Ga. App. 816, 611 S.E.2d 110 (2005).
Dismissal despite establishment of prima facie case.
- On motion to dismiss under subsection (b) of this section, since the court determines the facts as well as the law, such motion may be sustained even though the plaintiff has established a prima facie case. Pichulik v. Air Conditioning & Heating Serv. Co., 123 Ga. App. 195, 180 S.E.2d 286 (1971); Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653, 204 S.E.2d 331 (1974); Kennery v. Mosteller, 133 Ga. App. 879, 212 S.E.2d 447 (1975).
Findings and conclusions required.
- Ga. L. 1970, p. 170, § 1 (see now O.C.G.A. § 9-11-52(a)), requiring that in all actions in superior court tried upon the facts without a jury, with certain exceptions, the court shall find the facts specially and state separately the court's conclusions of law thereon upon entry of judgment, applies when the court enters an involuntary dismissal pursuant to subsection (b) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41). Salvador v. Wals, 139 Ga. App. 362, 228 S.E.2d 384 (1976).
Findings of judge analogous to jury verdict.
- In an action tried without a jury, the trial judge sits as the trier of fact, and the judge's findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support the findings. Comtrol, Inc. v. H-K Corp., 134 Ga. App. 349, 214 S.E.2d 588 (1975); Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 390 S.E.2d 52, cert. vacated, 260 Ga. 164, 393 S.E.2d 477 (1990).
Treatment of motion for directed verdict as one for involuntary dismissal.
- Motion for a directed verdict is procedurally incorrect in a nonjury case, but the court may nonetheless treat it as one for involuntary dismissal. Pichulik v. Air Conditioning & Heating Serv. Co., 123 Ga. App. 195, 180 S.E.2d 286 (1971); Kennery v. Mosteller, 133 Ga. App. 879, 212 S.E.2d 447 (1975).
When plaintiff is not allowed to complete the plaintiff's evidence, judgment of dismissal under subsection (b) of this section must be reversed and remanded with direction that the plaintiff be allowed to present the plaintiff's case. Lumpkin v. Guthrie, 124 Ga. App. 50, 183 S.E.2d 84 (1971).
Failure of defendant to appear.
- Defendant who failed to appear at trial was properly granted an involuntary dismissal by the court sua sponte because the defendant remained a party to the proceedings, and the plaintiff failed to make out a claim against the defendant or the codefendant. Cramer, Inc. v. Southeastern Office Furn. Whsle. Co., 171 Ga. App. 514, 320 S.E.2d 223 (1984).
Motion for involuntary dismissal properly denied.
- In a bench trial, the court properly denied a title insurer's O.C.G.A. § 9-11-41(b) motions for involuntary dismissal at the close of the insureds' case and at the close of evidence as the insureds had offered sufficient evidence of the diminishment in value of the insureds' property in support of the insureds' breach of contract claim. Jimenez v. Chi. Title Ins. Co., 310 Ga. App. 9, 712 S.E.2d 531 (2011).
4. Effect of Involuntary Dismissal
Construction of phrase "dismissal for lack of jurisdiction".
- Phrase "dismissal for lack of jurisdiction" should not be construed to limit its application only to those cases in which fundamental jurisdictional defects appear which would render a judgment void and subject to collateral attack, such as cases wherein it appears the court lacked jurisdiction over the defendants or of the subject matter of the action. O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969).
Phrase "dismissal for lack of jurisdiction" is broad enough to encompass dismissals based on the plaintiff's failure to comply with a precondition requisite to the trial court's going forward with the determination of the merits of the plaintiff's substantive claim. O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969).
Dismissal for failure to pay costs would be for "lack of jurisdiction," which by the language of subsection (b) of this section does not operate as an adjudication upon the merits. Kalin v. Pfarner, 124 Ga. App. 816, 186 S.E.2d 365 (1971).
Dismissal for lack of jurisdiction exception contained in subsection (b) of this section is applicable to dismissal because of failure to pay costs of a previously dismissed action. Teal v. Reeves, 144 Ga. App. 666, 242 S.E.2d 328 (1978).
Intent of preclusive effect of involuntary dismissals.
- Preclusive effect afforded dismissals under subsection (b) of this section was intended to apply to cases in which the defendant must incur the inconvenience of preparing to meet the merits of the plaintiff's claim because there is no initial bar to reaching the merits as there would be in case of defects in pleadings, failure to join necessary parties, lack of jurisdiction, or improper venue. Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697, 185 S.E.2d 584 (1971).
Order of dismissal containing no language as to being "without prejudice" operates as an adjudication on the merits of te plaintiff's claim. Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975).
Adjudication on merits with certain exceptions.
- While, unless the court otherwise specifies, a dismissal operates as an adjudication on the merits, this does not apply to dismissal for lack of jurisdiction, for improper venue, or for lack of an indispensable party. Rainwater v. Vazquez, 133 Ga. App. 173, 210 S.E.2d 380 (1974).
As a general rule, involuntary dismissal under subsection (b) of this section and any involuntary dismissal not provided for therein other than a dismissal for lack of jurisdiction, improper venue, or lack of an indispensable party, operates as an adjudication upon the merits, unless the court in the court's order of dismissal states that the dismissal is without prejudice. Douglas v. Douglas, 238 Ga. 452, 233 S.E.2d 195 (1977).
Despite absence of phrase "with prejudice" in section.
- Unless court in the court's order for dismissal specifies otherwise, dismissal under subsection (b) of this section and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction, for improper venue, or for lack of an indispensable party, operates as an adjudication upon the merits, despite the fact that this section does not use the expression "with prejudice." Teal v. Reeves, 144 Ga. App. 666, 242 S.E.2d 328 (1978).
Dismissal with prejudice is as conclusive of parties' rights as if action had been prosecuted to final adjudication adverse to plaintiff; it is res judicata of all questions which might have been litigated, and is a final disposition, barring the plaintiff's right to bring or maintain another action on the same claim or cause. Cranford v. Carver, 124 Ga. App. 767, 186 S.E.2d 150 (1971), appeal dismissed, 228 Ga. 847, 188 S.E.2d 792 (1972).
Order of dismissal clearly stating that it is without prejudice is not an adjudication on the merits, and is not a bar to a second action. Barkett v. Jones, 142 Ga. App. 835, 237 S.E.2d 400 (1977).
Willfulness as criterion for determining effect of dismissal.
- Order of dismissal based on finding of willful failure to comply with a court order can rightly have the effect of an adjudication on the merits, but a dismissal which does not involve any finding of willfulness and is merely an automatic action following a certain lapse of time cannot be considered an adjudication which would bar a subsequent action. Maxey v. Covington, 126 Ga. App. 197, 190 S.E.2d 448 (1972).
Willful failure to make discovery.
- Order of dismissal stating that there was a "willful refusal to make discovery" operates as an adjudication on the merits, and acts as res judicata in a subsequent action between the same parties. Boles v. Bannister, 131 Ga. App. 318, 205 S.E.2d 531 (1974).
Involuntary dismissal for willful failure to make discovery operates as an adjudication on the merits and as res judicata, unless the trial court specifies that such dismissal is without prejudice. North Am. Van Lines v. Hutton, 142 Ga. App. 151, 235 S.E.2d 396 (1977).
Failure to answer interrogatories.
- Dismissal of a complaint for failure to answer interrogatories operates as an adjudication on the merits under subsection (b) of this section absent the trial court's specification to the contrary. Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697, 185 S.E.2d 584 (1971).
Failure to obey order to appear at pretrial hearing.
- When court order of dismissal did not otherwise specify, dismissal of the plaintiff's complaint for failure to comply with an order to appear at the pretrial hearing acted as an adjudication on the merits, and superseded any temporary orders issued in the case. Weeks v. Weeks, 243 Ga. 416, 254 S.E.2d 366 (1979).
Failure to appear on trial date.
- When case is called on the date shown on the calendar as the trial date but the plaintiff is not present in person or by counsel, judgment entered up in favor of the defendant, under the provisions of subsection (b) of this section, operates as an adjudication on the merits. Trice v. Howard, 130 Ga. App. 895, 204 S.E.2d 808 (1974).
Failure to add party.
- Dismissal of party under subsection (b) of this section for failure to obtain a court order adding a party to the pending action is without prejudice if the merits cannot be reached because of the failure of the plaintiff to satisfy a precondition. Clover Realty Co. v. J.L. Todd Auction Co., 240 Ga. 124, 239 S.E.2d 682 (1977).
To obtain dismissal which operates as adjudication on merits, the defendant must move therefor under subsection (b) of this section; the defendant must take affirmative action and get an order of dismissal. Kalin v. Pfarner, 124 Ga. App. 816, 186 S.E.2d 365 (1971).
Petition to modify child support adjudication on the merits.
- Superior court erred in attempting to recast the court's dismissal of a husband's first petition for modification of child support as "simply a sanction" and not an adjudication on the merits so as to render the dismissal outside the ambit of O.C.G.A. § 19-6-15(k)(2) because in dismissing the husband's first petition for modification, the superior court did not specify that the order was not an adjudication on the merits, and under O.C.G.A. § 9-11-41(b), the order was a final order on the claim for downward modification of child support. Bagwell v. Bagwell, 290 Ga. 378, 721 S.E.2d 847 (2012).
5. Dismissal of Counterclaims, Etc.
Defendant's failure to pay into registry of court in accordance with court's order would not merit dismissal of the defendant's counterclaims. Lawhorn v. Gaskin, 153 Ga. App. 211, 264 S.E.2d 722 (1980).
Dismissal of counterclaim by defendant after involuntary dismissal of petition.
- There is nothing in the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) that prohibits the defendant, after involuntary dismissal of the plaintiff's petition, from dismissing the defendant's counterclaim. Myers v. Morris, 225 Ga. 285, 168 S.E.2d 152 (1969).
Dismissal of cross-claim.
- Trial court erred in dismissing the corporation's cross-claim against the mortgage seller for money it paid to the mortgage seller to purchase the mortgage as the trial court's erroneous ruling that the corporation's interest in a promissory note regarding the mortgage prevailed over the bank's security interest meant the trial court's ruling that the cross-claim was moot as a result was also erroneous. Provident Bank v. Morequity, Inc., 262 Ga. App. 331, 585 S.E.2d 625 (2003).
Costs of Previous Action
Payment of costs is a condition precedent to right to renew original dismissed action. Grier v. Wade Ford, Inc., 135 Ga. App. 821, 219 S.E.2d 43 (1975); McLanahan v. Keith, 140 Ga. App. 171, 230 S.E.2d 57 (1976), aff'd, 239 Ga. 94, 236 S.E.2d 52 (1977), overruled on other grounds, Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983); Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 232 S.E.2d 399 (1977); Urrea v. Flythe, 215 Ga. App. 212, 450 S.E.2d 266 (1994).
Payment of costs in the dismissed suit is a precondition to the filing of a second suit. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983); Tucker v. Mitchell, 252 Ga. 545, 314 S.E.2d 896 (1984); Shaw v. Lee, 187 Ga. App. 689, 371 S.E.2d 187 (1988); Kappelmeier v. Amoco Fabrics, 192 Ga. App. 388, 385 S.E.2d 2, cert. denied, 192 Ga. App. 902, 385 S.E.2d 2 (1989).
Ruling in Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983) that the payment of costs in a previous action under O.C.G.A. § 9-11-41 is a condition precedent to filing a second suit is not limited to prospective application. Robinson v. Simpson, 171 Ga. App. 302, 319 S.E.2d 126 (1984).
Requirement may be relaxed when the plaintiff shows a good faith effort to ascertain and pay the costs. Butler v. Bolton Rd. Partners, 222 Ga. App. 791, 476 S.E.2d 265 (1996).
Right to renew a previously dismissed action after the statute of limitation has expired is governed by O.C.G.A. § 9-2-61, which provides in part that when any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the case, the case may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by O.C.G.A. § 9-11-41(d); provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once. Belcher v. Folsom, 258 Ga. App. 191, 573 S.E.2d 447 (2002).
Trial court properly dismissed a third suit brought by a grandfather against a principal because the issues in all three suits were nearly identical, and attorney's fees awarded to the principal in the two earlier suits had not been paid by the grandfather; thus, the trial court was without jurisdiction regarding the third suit. Crane v. Cheeley, 270 Ga. App. 126, 605 S.E.2d 824 (2004).
Payment of costs is essential to valid and pending action.
- It is essential that first action be dismissed and costs be paid before second action becomes a valid and pending action. Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 232 S.E.2d 399 (1977); Gober v. Nisbet, 186 Ga. App. 264, 367 S.E.2d 68, cert. denied, 186 Ga. App. 918, 367 S.E.2d 68 (1988).
Failure to pay costs of court is a defense which is not waivable. Payment of costs is not an affirmative defense but a jurisdictional matter which may never be waived. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983); Tucker v. Mitchell, 252 Ga. 545, 314 S.E.2d 896 (1984); Hilliard v. Edwards, 169 Ga. App. 808, 315 S.E.2d 39 (1984).
State's failure to pay costs of a criminal bond forfeiture proceeding after the judgment was dismissed did not bar the trial court from entering judgment and issuing execution after a second forfeiture proceeding. Daza v. State, 224 Ga. App. 383, 480 S.E.2d 623 (1997).
Acceptance of check approved.
- Payment of costs under subsection (d) of this section of a previously dismissed action in order to bring another action on the same cause may be by check if the clerk accepts the check without objection and the check is honored by the bank. Brock v. Baker, 128 Ga. App. 397, 196 S.E.2d 875 (1973).
Monetary sanction imposed under O.C.G.A. § 9-11-37(d) does not constitute a court cost under subsection (d) of O.C.G.A. § 9-11-41 which must be paid before a plaintiff refiles an action the plaintiff previously dismissed. Allied Prods. Co. v. Green, 175 Ga. App. 802, 334 S.E.2d 389 (1985).
Mistaken information from clerk that no costs due.
- Costs which must be paid pursuant to O.C.G.A. § 9-11-41, as a precondition to the filing of a new suit, do not include costs unknown to the plaintiff after a good faith inquiry after the attorney was mistakenly informed by the clerk of the trial court that no costs were due on a previous action. But any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction. Daugherty v. Norville Indus., Inc., 174 Ga. App. 89, 329 S.E.2d 202 (1985); Michaels v. Kroger Co., 193 Ga. App. 40, 387 S.E.2d 2, cert. denied, 193 Ga. App. 910, 387 S.E.2d 2 (1989).
Unknown costs.
- Costs which must be paid pursuant to subsection (d) of O.C.G.A. § 9-11-41 as a precondition to the filing of a new suit do not include costs unknown to the plaintiff after a good faith inquiry. Hiley v. McGoogan, 177 Ga. App. 809, 341 S.E.2d 461 (1986).
Costs unknown to plaintiff's attorney.
- Trial court did not err in finding that the plaintiff exhibited good faith when costs were unknown to the plaintiff's attorney before the second suit was filed. Jeff Davis Hosp. Auth. v. Altman, 203 Ga. App. 168, 416 S.E.2d 763, cert. denied, 203 Ga. App. 906, 416 S.E.2d 763 (1992).
Costs unknown to plaintiff's attorney.
- Trial court concluded that a patient who filed a personal injury suit against a hospital was entitled to a relaxed application of the rule that a plaintiff in a renewal action must show that costs were paid in the prior action after the patient's attorney attached an affidavit, stating that the attorney met with the court clerk and unsuccessfully requested a copy of computerized dockets and payment records and that, according to counsel, it was impossible to obtain a certificate showing that no costs were due from the clerk's office, even though a cost payment for filing and service showed on the computer screen reflecting the time of the original filing. Lunsford v. DeKalb Med. Ctr., Inc., 263 Ga. App. 394, 587 S.E.2d 859 (2003).
Non-payment of costs due in prior action is an amendable defect only if the existence of such costs remains unknown despite a good-faith inquiry made prior to the filing of the renewal action and if the deficiency is paid "within a reasonable time" after being discovered. Cox v. Fillingim, 184 Ga. App. 205, 361 S.E.2d 65 (1987).
Renewal action dismissed for non-payment.
- Trial court did not err in dismissing the plaintiff's renewal action for failure to pay all costs of the previous action when there appeared to be no dispute that the attorney was aware of those costs long before institution of the renewal action. Oseni v. Hambrick, 207 Ga. App. 166, 427 S.E.2d 559 (1993).
Trial court did not err in declining to dismiss the Cobb County, Georgia, renewal suit for failure to pay costs in the Fulton County, Georgia, action because the defendant had not filed a motion for attorney fees in the original Fulton County suit when the plaintiff filed the renewal suit in Cobb County. Jarman v. Jones, 327 Ga. App. 54, 755 S.E.2d 325 (2014).
Arrestee whose suit against a law enforcement officer under 42 U.S.C. § 1983 was barred by the statute of limitations could not rely on Georgia's renewal statute, O.C.G.A. § 9-2-61, to avoid the statute of limitations because the arrestee failed to pay the unpaid costs of the arrestee's timely original action as required. The cost-payment requirement applied both to voluntary and involuntary dismissals under O.C.G.A. § 9-11-41. Hancock v. Cape, 875 F.3d 1079 (11th Cir. 2017).
Question of fact precludes summary judgment.
- When in the plaintiff's affidavit, the plaintiff swore that the plaintiff "did investigate with the Costs Clerk of Fulton County Superior Court the incurred costs in the predecessor action" and that "[at] the time of filing [the renewal action], all the preliminary incurred costs were paid," giving the plaintiff the benefit of the doubt, a question of fact is raised whether the plaintiff's efforts to ascertain the costs owed before refiling the plaintiff's action amounted to a good faith inquiry which would prevent involuntary dismissal for failure to comply with subsection (d) of O.C.G.A. § 9-11-41. The trial court therefore properly denied the defendant's motion for summary judgment for failure to pay the costs of empanelling the jury in the prior action. Kroger Co. v. Michaels, 183 Ga. App. 626, 359 S.E.2d 698 (1987), aff'd, 193 Ga. App. 40, 387 S.E.2d 2 (1989).
Automatic Dismissal for Want of Prosecution
Options available to trial court.
- Under either O.C.G.A. § 9-11-41 or Superior Court Rule 14, the court may dismiss an action without prejudice if the plaintiff fails to appear at the call of the case. Neither provision, however, exhausts the options available to the trial court under the court's authority to control the court's own docket and regulate the business of the court. Kraft, Inc. v. Abad, 262 Ga. 336, 417 S.E.2d 317 (1992).
Subsection (e) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) is neither in conflict nor contradictory to Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1 and 2 (see now O.C.G.A. § 9-2-60), and they reasonably can stand together by recognizing that Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1 and 2 (see now O.C.G.A. § 9-2-60) expands the coverage of the five-year nonaction bar. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Local two-year rule conflicting.
- Regardless of efficiency of local two-year want of prosecution rule, (for State Court of DeKalb County) the General Assembly has set forth a five-year rule for all actions of a civil nature in all courts whose practice and procedure is governed by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), so that for those courts a local two-year rule would be conflicting. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976).
Dismissal for failure to substitute parties distinguished.
- Dismissal under Ga. L. 1966, p. 609, § 25 (see now O.C.G.A. § 9-11-25(a)) for failure to substitute parties is different from dismissal under subsection (e) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41), which is automatically obtained and does not operate as an adjudication on the merits. Jernigan v. Collier, 131 Ga. App. 162, 205 S.E.2d 450 (1974).
Notices of attorney's leaves of absences insufficient to avoid application of statute.
- Pursuant to O.C.G.A. §§ 9-2-60(b) and9-11-41(e), because an individual's negligence suit sat dormant when the trial court failed to enter any orders for eight years, the suit was automatically dismissed for want of prosecution, and the individual could not overcome application of those statutes as notices of leaves of absence filed by the individual's attorney were insufficient to avoid application. Ward v. Swartz, 285 Ga. App. 788, 648 S.E.2d 114 (2007).
Subsection (e) of this section is not a statute of limitations as to cause of action or right to rebring a dismissed complaint. Harris v. United States Fid. & Guar. Co., 134 Ga. App. 739, 216 S.E.2d 127 (1975).
Dual purpose of subsection (e).
- Subsection (e) of this section has at least the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation, and protecting litigants from dilatory counsel. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973); Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975); Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983).
Interest of public in removing inactive litigation from court records.
- Enactment of subsection (e) of this section is a declaration of the General Assembly that it is in the public interest to remove from court records litigation which has been inactive for a period of five years. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Mandatory duty of plaintiff to obtain written order and have it entered in record.
- "Five-year rule" under subsection (e) of this section is mandatory, and places squarely upon the plaintiff the duty to obtain a written order of continuance or other written order at some time during a five-year period and make sure the order is entered in the record. Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 217 S.E.2d 355 (1975).
To avoid operation of subsection (e) of this section and thus automatic dismissal, the plaintiff must obtain a written order and have the order entered or filed within five years. Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 217 S.E.2d 355 (1975).
Plaintiff who wishes to avoid automatic dismissal of the plaintiff's case by operation of law has a mandatory duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the order is entered in the record. Norton v. Brady, 129 Ga. App. 753, 201 S.E.2d 188 (1973).
Order must be in writing. Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978).
Until an order is signed by judge it is ineffective for any purpose. Majors v. Lewis, 135 Ga. App. 420, 218 S.E.2d 130 (1975).
Orders are not complete until filed or recorded. Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978).
No written order within five years resulted in dismissal.
- Trial court properly dismissed a party's counterclaim for failure to prosecute under O.C.G.A. §§ 9-2-60(b) and9-11-41(e). It was undisputed that there had been no written order entered in the case for a period of over five years; even if there was evidence supporting the party's claim that the party had attempted to have the case placed on the trial calendar, the case the party relied upon had been reversed; and it had been held that the automatic dismissal statutes did not violate due process. Roberts v. Eayrs, 297 Ga. App. 821, 678 S.E.2d 535 (2009).
Dismissal is automatic on expiration of five-year period.
- Trial court did not err in dismissing the action under the five-year rule, O.C.G.A. §§ 9-2-60(b) and9-11-41(e), because no written order had been taken in the case for a period of five years and an order authorizing an attorney to withdraw during the five-year period did not toll the time because the order was void since the order was entered in violation of a bankruptcy stay. Miller v. Lomax, 333 Ga. App. 402, 773 S.E.2d 475 (2015).
Printed signature on an instruction sheet is not an order for the purposes of subsection (e) of this section. Majors v. Lewis, 135 Ga. App. 420, 218 S.E.2d 130 (1975).
Unsigned carbon copy of letter to attorney delivered by judge to clerk is not an order within the meaning of this section. Parkerson v. Indies Co., 148 Ga. App. 106, 251 S.E.2d 98 (1978).
Agreement between counsel ineffective to avoid dismissal.
- Agreement between counsel to continue a case entered in the record prior to the lapse of five years was not sufficient to avoid the mandatory dismissal provisions of subsection (e) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) and Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1 and 2 (see now O.C.G.A. § 9-2-60) as the plaintiffs had the duty to obtain a written order of continuance and enter the order in the record. Harris v. Moody, 144 Ga. App. 656, 242 S.E.2d 321 (1978).
Dismissal is automatic on expiration of five-year period and cannot be waived by a party litigant. Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978).
Subsection (e) does not create a new five-year period starting with the date of its enactment for pending actions to be automatically dismissed if no written order was taken within a period of five years. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Five-year rule of subsection (e) is not limited to prospective application, since it does not take away or impair any vested right nor impose any new duty or liability, and therefore comes within the saving provision of Ga. L. 1968, p. 1104. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Five-year period is computed from date of filing. Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978).
Action refiled more than six months after automatic dismissal was untimely.
- Injured party's lawsuit against a business was automatically dismissed for want of prosecution pursuant to O.C.G.A. § 9-11-41(e) five years after the suit was filed, not on the date the trial court entered an order confirming the fact that the lawsuit was dismissed, and the trial court properly granted the business's motion for summary judgment after the injured party refiled a lawsuit because the injured party refiled that lawsuit more than six months after the lawsuit was automatically dismissed. Brown v. Kroger Co., 278 Ga. 65, 597 S.E.2d 382 (2004).
As the plaintiff failed to show that any action in the original suit filed, within the meanings of O.C.G.A. §§ 9-2-60 and9-11-41(e), occurred to bar dismissal of the suit, and failed to timely file a renewal action, the renewal action was properly dismissed. Nelson v. Haugabrook, 282 Ga. App. 399, 638 S.E.2d 840 (2006).
Five-year period does not run during time case in federal court.
- Although dismissal for want of prosecution is automatic on expiration of five years, the statutory five-year period does not run during the time the case is in federal court. When an action in a state court is removed to a federal district court, the jurisdiction of the state court is suspended until the case is remanded to the state court, at which time the case resumes the status the case occupied at the time of the removal. Southern Bell Tel. & Tel. Co. v. Perry, 168 Ga. App. 387, 308 S.E.2d 848 (1983).
Motion to reinstate was properly denied because the plaintiff did not refile the action but sought to revive or renew an existing action outside of the time period of five years and six months, which could not be done by the plaintiff. Goodwyn v. Carter, 252 Ga. App. 114, 555 S.E.2d 474 (2001).
Action of clerk of court in marking case dismissed is ministerial as dismissal is automatic on expiration of five years. Norton v. Brady, 129 Ga. App. 753, 201 S.E.2d 188 (1973).
Case completely lifeless from date of dismissal.
- When a case stands automatically dismissed the case is completely lifeless for all purposes from the date of dismissal, not from the date on which the case was physically stricken from the docket. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Subsequent order dismissing case with prejudice ineffective.
- When no order was taken in a case within five years after the case was filed, the plaintiff's complaint was dismissed without prejudice by operation of law under subsection (e) of this section, and a subsequent order of the trial court dismissing the case with prejudice was error and was null and void. First of Ga. Ins. Co. v. Georgia Power Co., 146 Ga. App. 756, 247 S.E.2d 574 (1978).
Power of a court of record to enter a judgment on a verdict is not extinguished by the passage of five years without entry of an order. Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983).
Failure to take defendant's default to judgment.
- When the defendant failed to answer and was in default, but judgment was not entered for more than five years, the case stood as if a jury verdict had been returned and was not subject to dismissal under the five-year rule. Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914, 315 S.E.2d 434 (1984).
Leave of absence granted did not suffice to avoid operation of subsection (e) of O.C.G.A. § 9-11-41 since the order failed to identify the case at hand and was never entered in the record. It was not enough that the order granting the leave of absence was filed in the minutes of the superior court. West v. DOT, 174 Ga. App. 603, 330 S.E.2d 803 (1985).
Defense counsel's request for a formal leave of absence did not, standing alone, satisfy the five-year rule requirements for a written, signed, and entered order. Prosser v. Grant, 224 Ga. App. 6, 479 S.E.2d 775 (1996).
Intervening order prevents dismissal, even though subsequently revoked.
- When the trial court's order revoking the grant of a continuance and dismissing the complaint was entered some three years after the entry of the order granting the continuance - although after the expiration of over five years from the last written order prior to the continuance order - "manifest injustice" would result if that order revoking the continuance is affirmed, even though the continuation order had been entered in the absence of a written motion and without notice. Simmerson v. Blanks, 183 Ga. App. 863, 360 S.E.2d 422, cert. denied, 183 Ga. App. 907, 360 S.E.2d 422 (1987).
Automatic dismissal is not res adjudicata. Kalin v. Pfarner, 124 Ga. App. 816, 186 S.E.2d 365 (1971).
Action may be refiled within six months after automatic dismissal under subsection (e) of this section. Brewer v. Thompson, 135 Ga. App. 70, 217 S.E.2d 395 (1975).
Dismissal under subsection (e) is not on merits.
- Dismissal under subsection (e) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) is not a dismissal on the merits pursuant to subsection (b) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41), and after such a dismissal the plaintiff had six months to refile the complaint, pursuant to former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61). Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225, 213 S.E.2d 915 (1975); Calloway v. Harms, 135 Ga. App. 54, 217 S.E.2d 184 (1975); First of Ga. Ins. Co. v. Georgia Power Co., 146 Ga. App. 756, 247 S.E.2d 574 (1978).
Original action must not be barred.
- Plaintiff, under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61), may refile an action within six months following automatic dismissal mandated by Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60) or subsection (e) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) when the original action was not barred by the statute of limitations. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
After six months, the plaintiff cannot refile if the statute of limitations has run. First of Ga. Ins. Co. v. Georgia Power Co., 146 Ga. App. 756, 247 S.E.2d 574 (1978).
Claimant not deprived of day in court.
- If the claimant has a remedy provided by law under which the claimant can assert the claimant's claim within a reasonable time, the claimant has the claimant's "day in court," and if the claimant fails to assert the claim within such time, then the claimant, not the law, is at fault. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Hearing necessary before dismissal of minor's complaint with prejudice for lack of prosecution.
- It is error to dismiss with prejudice a complaint brought on behalf of a minor by a next friend for lack of prosecution, without further hearing and determination that dismissal should be with prejudice. Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 (1979).
Issues raised by cross action.
- Dismissal of action for want of prosecution, when the defendant has filed a cross action seeking equitable relief, does not dismiss issues raised by the cross action. Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937)(decided under former Code 1933, § 3-510).
Appeal of denial of motion premature.
- When five years have elapsed without any orders in action for indebtedness, but orders have been issued on accompanying action for receivership, an appeal from the denial of a motion for automatic dismissal on the action for indebtedness is premature. Consolidated Pecan Sales Co. v. Savannah Bank & Trust Co., 121 Ga. App. 40, 172 S.E.2d 487 (1970).
Dismissal of a survivor's wrongful death suit was proper, and automatic, since five years had passed after the most recent court order, and no further action was documented thereafter. Tate v. Ga. DOT, 261 Ga. App. 192, 582 S.E.2d 162 (2003).
OPINIONS OF THE ATTORNEY GENERAL
Condemnation proceedings.
- Civil Procedure Act (see O.C.G.A. Ch. 11, T. 9) was controlling in the declaration of taking method of condemnation, and Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60) was controlling in an appeal from an award of assessors or a special master. 1970 Op. Att'y Gen. No. 70-138.
RESEARCH REFERENCES
Am. Jur. 2d.
- 20 Am. Jur. 2d, Costs, § 95. 23 Am. Jur. 2d, Depositions and Discovery, § 227 et seq. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 7 et seq., 95 et seq.
C.J.S.- 27 C.J.S., Dismissal and Nonsuit, § 1 et seq. 35B C.J.S., Federal Civil Procedure, § 754 et seq. 88 C.J.S., Trial, §§ 499, 500.
ALR.
- Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 2 A.L.R. 200.
Right to voluntary dismissal of suit without prejudice before trial as affected by filing counterclaim after motion for dismissal, 71 A.L.R. 1001.
Right of defendant to take voluntary dismissal of cross-bill or counterclaim, 74 A.L.R. 587.
Stage of trial at which plaintiff may take voluntary nonsuit, dismissal, or discontinuance, 89 A.L.R. 13; 126 A.L.R. 284.
Right to dismissal of action for delay in prosecution as affected by filing of, or as affecting, cross complaint, counterclaim, intervention, and the like, 90 A.L.R. 387.
Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.
Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.
Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767.
Amendment of petition or complaint after statute of limitations has run, by reinstating codefendant who had been dismissed from the action otherwise than upon merits, 143 A.L.R. 1182.
Provision that judgment is "without prejudice" or "with prejudice" as affecting its operation as res judicata, 149 A.L.R. 553.
Delay in issuance or service of summons as requiring or justifying order discontinuing suit, 167 A.L.R. 1058.
Dissolved corporation as an indispensable party to a stockholders' derivative action, 172 A.L.R. 691.
Voluntary dismissal or withdrawal of proceedings to probate or contest will, 173 A.L.R. 959.
Effect of nonsuit, dismissal, or discontinuance of action on previous orders, 11 A.L.R.2d 1407.
Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner, 14 A.L.R.2d 580.
Appellate review at instance of plaintiff who has requested, induced, or consented to dismissal or nonsuit, 23 A.L.R.2d 664.
Dismissal of plaintiff's case for want of prosecution as affecting defendant's counterclaim, setoff, or recoupment, or intervenor's claim for affirmative relief, 48 A.L.R.2d 748.
Res judicata effect of judgment dismissing action or otherwise denying relief, for lack of jurisdiction or venue, 49 A.L.R.2d 1036.
Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.
Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300.
What dismissals preclude a further suit, under federal and state rules regarding two dismissals, 65 A.L.R.2d 642.
Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.
Doctrine of forum non conveniens: assumption or denial of jurisdiction of contract action involving foreign elements, 90 A.L.R.2d 1109.
Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312.
Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of the facts," or the like, 1 A.L.R.3d 711.
Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545.
Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.
Dismissal of action because of party's perjury or suppression of evidence, 11 A.L.R.3d 1153.
Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 A.L.R.3d 848.
Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations, 13 A.L.R.3d 979.
Right of one spouse, over objection, to voluntarily dismiss claim for divorce, annulment, or similar marital relief, 16 A.L.R.3d 283.
Voluntary dismissal or replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768.
Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113.
Power of court sitting as trier of fact to dismiss at close of plaintiff's evidence, notwithstanding plaintiff has made out prima facie case, 55 A.L.R.3d 272.
Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109.
Power of trial court to dismiss prosecution as direct acquittal on basis of prosecutor's opening statement, 75 A.L.R.3d 649.
Appealability of order dismissing counterclaim, 86 A.L.R.3d 944.
Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661.
What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840.
Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper, 34 A.L.R.4th 778.
Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.
Construction and application of two-dismissal rule under federal law, 10 A.L.R. Fed. 3d 4.