Avnet, Inc. v. Wyle Laboratories, Inc.

• Decision Date: 18 September 1995
• Docket Number: No. S95A0722,S95A0722
• Parties: AVNET, INC. et al. v. WYLE LABORATORIES, INC. et al.
• Court: Georgia Supreme Court

Page 865

461 S.E.2d 865

265 Ga. 716

AVNET, INC. et al. v. WYLE LABORATORIES, INC. et al.

No. S95A0722.

Supreme Court of Georgia.

Sept. 18, 1995.

Reconsideration Denied Oct. 16, 1995.

Matthew H. Patton, William H. Brewster, James F. Bogan, Kilpatrick & Cody, Atlanta, Roger L. Longtin, Stephen L. Agin, Keck, Mahin & Cate, Chicago, IL, for Avnet, Inc. et al.

Michael O'Neal, Keck, Mahin & Cate, Chicago, IL, Emmet J. Bondurant, II, Dirk G. Christensen, Jeffrey D. Horst, Joshua F. Thorpe, Bondurant, Mixson & Elmore, Atlanta, for Wyle Laboratories, Inc. et al.

HUNSTEIN, Justice.

Shortly after the April 1993 merger of Avnet, Inc. and Hall-Mark Electronics Corporation, numerous east coast Hall-Mark employees began accepting positions with Avnet's competitor, Wyle Laboratories. In May 1993 Avnet and Hall-Mark (hereinafter "Avnet") brought suit in Georgia against Wyle and Georgia resident James Haraway, a former Hall-Mark vice-president who had been hired by Wyle, asserting causes of action for, inter alia, malicious interference with employment relationship, unfair competition, and breach of fiduciary duty. Wyle and Haraway answered and filed a compulsory counterclaim, in which they set forth essentially the same causes of action that Avnet had asserted against them. In June 1993 Avnet brought suit in Florida against two former Hall-Mark managers who were Florida residents, asserting the same basic claims it had raised in the Georgia action. Avnet was aware by this time that five other former Hall-Mark managers (residents of New Jersey, Minnesota, Illinois, and Wisconsin) had also obtained employment with Wyle.

Avnet vigorously litigated its case in Georgia. ¹ However, fifteen months after filing the Georgia action, Avnet sought leave in Florida to amend its complaint to add Haraway, Wyle, and the five other former Hall-Mark managers as defendants. In response, Haraway and Wyle petitioned the Georgia court to enjoin Avnet from involving them in the Florida action. On the day the Florida court granted Avnet leave to amend, Avnet filed a motion to stay the Georgia action pending resolution of the Florida action. After the Georgia court granted injunctive relief to the Georgia defendants and denied Avnet's motion to stay the Georgia litigation, Avnet filed a motion to voluntarily dismiss its case in Georgia, see Mote v. Helmly, 169 Ga.App. 475(1), 313 S.E.2d 493 (1984), to which Haraway and Wyle objected. The Georgia court denied this motion and Avnet appeals, enumerating error in all of the court's rulings.

1. Avnet contends the trial court erred by denying its motion to dismiss voluntarily its complaint. OCGA § 9-11-41(a) provides that, subject to certain restrictions not applicable here,

an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.... If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.

While a plaintiff is entitled to voluntarily dismiss an action without prejudice despite the inconvenience and irritation to the defendant, e.g., C & S Industrial Supply v. Proctor & Gamble, etc., Co., 199 Ga.App. 197, 404 S.E.2d 346 (1991), this Court, consistent with our position of liberally construing the counterclaim limitation in OCGA § 9-11-41(a), ² has held that "a plaintiff may not voluntarily dismiss his complaint after the defendant has filed defensive pleadings seeking affirmative or other relief." Moore v. Moore, 253 Ga. 211, 212, 317 S.E.2d 529 (1984). However, a demand for affirmative relief is an essential part of any well-pled counterclaim. See Trust Co. Bank of Northwest Ga. v. Shaw, 186 Ga.App. 347, 348, 367 S.E.2d 82 (1988). Hence, appellees argue that under Moore v. Moore, supra, the mere filing of their compulsory counterclaim barred appellant from voluntarily dismissing its complaint. We do not agree.

Appellees' construction of OCGA § 9-11-41(a) would preclude a plaintiff from voluntarily dismissing a complaint in every instance where the defendant sought "affirmative relief" in a defensive pleading, i.e., filed a counterclaim, and would have the result of eviscerating that language in OCGA § 9-11-41(a) authorizing voluntary dismissal in those instances where a counterclaim can remain pending for independent adjudication by the court. The construction urged by appellees is not supported by Moore v. Moore, supra, and runs contrary to those cases recognizing that the filing of defensive pleadings seeking affirmative relief, even in the form of a compulsory counterclaim, does not automatically bar the plaintiff from voluntarily dismissing his or her complaint. See, e.g., Moore v. Memorial Medical Center, 258 Ga. 696, 373 S.E.2d 204 (1988); Maslia v. Maslia, 243 Ga. 44, 252 S.E.2d 469 (1979). See also Weems v Weems, 225 Ga. 19(2), 165 S.E.2d 733 (1969) (...