Baker v. Atl. States Ins. Co.

• Decision Date: 10 March 2020
• Docket Number: A19A2337
• Citation: 354 Ga.App. 773,840 S.E.2d 734
• Court: Georgia Court of Appeals
• Parties: BAKER v. ATLANTIC STATES INSURANCE COMPANY.

354 Ga.App. 773

840 S.E.2d 734

BAKER

v.ATLANTIC STATES INSURANCE COMPANY.

A19A2337

Court of Appeals of Georgia.

March 10, 2020

Certiorari Denied October 19, 2020

Kathryn Crawford Gentle, Birmingham, AL, Eric Kane Maxwell, Fayetteville, for Appellant.

Samantha Rose Mandell, Michael Charles Kendall, Douglasville, for Appellee.

Rickman, Judge.

Janet Baker contends the trial court lacked jurisdiction to sanction her for failure to comply with a discovery order. She argues that the court lost jurisdiction when she voluntarily dismissed her case before the trial court's decision on the motion for sanctions. We disagree and affirm because the transcript shows that the trial court announced its decision to grant reasonable attorney fees and costs at the hearing — before Baker's voluntary dismissal — and it therefore retained jurisdiction to enter a written sanction award thereafter.

The record shows that Baker sued Patsy Clark for alleged injuries she received in an automobile collision with Clark. In July 2018, during discovery, Clark's uninsured motorist carrier, Atlantic States Insurance Company, learned that Baker's surgeon was recommending an operation and that surgery had been scheduled for November 6, 2018. The following day, Atlantic informed Baker that it was planning on hiring an expert to rebut the surgeon's recommendation. Atlantic later made clear that it wanted to have an independent medical examination ("IME") performed on Baker in September or October and would request a second IME after the surgery as well. Over the next two and a half months, Atlantic scheduled the IME with Baker three times, but Baker cancelled each time, typically shortly before the arranged date.

Consequently, Atlantic moved to compel Baker to submit to an IME. A hearing was held on the motion on November 7, and it was noted that the surgery had been scheduled for the previous day. The trial court granted the motion the next day, ordering the parties to schedule an independent medical examination within 40 days of the order, i.e., by December 18. The parties agreed on a December 18 examination date, but, without informing the court or Atlantic, Baker proceeded with surgery on November 13 and therefore did not appear for the IME. In fact, Baker's counsel did not reveal the surgery until November 30, when it cancelled the jointly scheduled December 18 examination.

Atlantic moved for "spoliation, discovery misconduct and for associated sanctions, including dismissal of plaintiff's complaint, exclusion of evidence, and the award of attorney's fees and costs" under OCGA § 9-11-37 (b) (2). The trial court held a hearing on the matter on February 19, 2019, and orally declined to dismiss the action. But it announced that it was granting Atlantic attorney fees and costs for Baker's contempt of its prior order and ordered Atlantic to submit an affidavit of its attorney fees and costs to give Baker an opportunity to respond to the amount. The court also instructed the parties to return on March 25 to set yet another date for an IME.

Three days after the hearing and before the court issued a written order, Baker dismissed her complaint against Clark without prejudice. Atlantic, however, submitted the requested attorney fee affidavit to the court, served Baker with a copy, and submitted two amendments thereafter. On April 5, 2019 (nunc pro tunc to date of the hearing) the trial court, citing OCGA § 9-11-37 (b) (2), entered an order granting Clark's motion for sanctions and ordered that Baker and her counsel pay $5,798.79 and $5,798.80, respectively, to Atlantic. The court found that Baker was stubbornly litigious in failing to attend the scheduled IMEs, in failing to disclose major surgical procedures to the opposing party, and in failing to comply with its order compelling her cooperation in scheduling and attendance at an IME. We granted Baker's application to appeal.

Baker's sole argument¹ is that the trial court lacked subject-matter jurisdiction to enter its order because she voluntarily dismissed her complaint before the court ruled on the motion; this argument presents a question of law that we review de novo for plain legal error. See Barnes v. Cannon , 347 Ga. App. 517, 518 (1), 820 S.E.2d 155 (2018) ; Harris v. Werner , 278 Ga. App. 166, 167, 628 S.E.2d 230 (2006).

Absent a pending counterclaim, a party may dismiss an action without prejudice by filing a written notice of dismissal at any time before the first witness is sworn. See OCGA § 9-11-41 (a) (1) (A) (2), (3). A dismissal "generally deprives the trial court of jurisdiction to take further action in a case," and "any subsequent order is null and void because the trial court has lost jurisdiction over the case, which is no longer pending before it." Montgomery v. Morris , 322 Ga. App. 558, 560 (1), 745 S.E.2d 778 (2013). Similarly, "[a]fter [such a] dismissal, a court has no power to order reinstatement of the action." (Citations omitted.) Lotman v. Adamson Contracting , 219 Ga. App. 898, 898, 467 S.E.2d 224 (1996). See, e.g., C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co. , 199 Ga. App. 197, 198, 404 S.E.2d 346 (1991) (sanctions pursuant to OCGA § 9-11-37 a nullity when issued after voluntary dismissal filed only minutes before a scheduled hearing on the motion for sanctions). Compare Harris , 278 Ga. App. at 167, 628 S.E.2d 230 (rule does not apply to OCGA § 9-15-14 motions).

An important exception to this rule provides that "the plaintiff's right to dismiss can not be exercised after a verdict or a finding by the judge which is equivalent thereto has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been published or not." (Citation and punctuation omitted.) Guillebeau v. Yeargin , 254 Ga. 490, 491 (1), 330 S.E.2d 585 (1985) ; see also Lakes v. Marriott Corp. , 264 Ga. 475, 476-477, 448 S.E.2d 203 (1994) ; Lotman , 219 Ga. App. at 899, 467 S.E.2d 224. "[T]he oral announcement of a dispositive ruling in open court, for example, ends the time for filing a unilateral voluntary dismissal." Dillard Land Investments, LLC v. Fulton County , 295 Ga. 515, 520 (2) (b), 761 S.E.2d 282 (2014). The reason for this limitation is to prevent gamesmanship:

after a party has taken the chances of litigation and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he can not, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained. It is the knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.

(Citation and punctuation omitted.) Lakes , supra, 264 Ga. at 477, 448 S.E.2d 203. The same reasoning applies to a ruling on less than all claims in a case, see Groves v. Groves , 250 Ga. 459, 460 (1), 298 S.E.2d 506 (1983), a ruling for summary judgment, see Guillebeau , 254 Ga. at 491-492 (1), 330 S.E.2d 585, and rulings for partial summary judgment. See Moore v. Moore , 253 Ga. 211, 212, 317 S.E.2d 529 (1984).

Although the exception to the rule of voluntary dismissal has not previously been applied to a ruling on a motion for sanctions under OCGA § 9-11-37 (b) (2), we find the exception applicable for these reasons. First, the trial court's announcement that it would be awarding sanctions was tantamount to a grant of partial summary judgment, and, like a summary judgment ruling, a ruling on a motion for sanctions is a judgment of the court. See Hunt v. Callahan , 353 Ga.App. 488, 488–89 (2), 838 S.E.2d 133 (Case No. A19A2153, decided Jan. 23, 2020) ("an award of OCGA § 9-11-37 attorney fees as a discovery sanction is a ‘judgment’ for purposes of OCGA § 5-6-35 (a) (6)" — requiring an application to appeal); Vaughn v. Cable East Point , 185 Ga. App. 203, 203, 363 S.E.2d 639 (1987) (same). In...