Daugherty v. Norville Industries, Inc.

• Decision Date: 05 March 1985
• Docket Number: 68995,Nos. 68994,s. 68994
• Citation: 174 Ga.App. 89,329 S.E.2d 202
• Parties: DAUGHERTY v. NORVILLE INDUSTRIES, INC. PADGETT v. NORVILLE INDUSTRIES, INC.
• Court: Georgia Court of Appeals

Page 202

329 S.E.2d 202

174 Ga.App. 89

DAUGHERTY v. NORVILLE INDUSTRIES, INC.

PADGETT v. NORVILLE INDUSTRIES, INC.

Nos. 68994, 68995.

Court of Appeals of Georgia.

March 5, 1985.

Rehearing Denied March 22, 1985.

Bobby Lee Cook, Summerville, for appellants.

Steven J. Kyle, Vincent M. D'Assaro, Atlanta, for appellee.

McMURRAY, Presiding Judge.

The plaintiff in each of these companion cases filed an action against defendant for damages arising from a motor vehicle collision. The original complaints were voluntarily dismissed. Subsequently, the present actions were filed purportedly as renewals of the previous complaints pursuant to OCGA § 9-2-61.

In each case, defendant filed its answer and subsequently its motion to dismiss based on the respective plaintiffs' failure to pay the court costs of the actions previously dismissed prior to commencing the present actions as required by OCGA § 9-11-41(d).

The respective plaintiffs, both of whom are represented by the same attorney, in each case responded with the affidavit of their attorney, each affidavit being uncontroverted, deposing that prior to filing the present actions he had "made inquiry of the Clerk's Office of the Superior Court of Whitfield County, Georgia as to the amount of costs due and was informed that no costs were due on the previous action." Each affidavit of plaintiffs' attorney further deposes that he then proceeded to file the present actions and that upon learning of the court costs due he had a check mailed for the amounts due.

Defendant's motions to dismiss were granted. Plaintiffs appeal. Held:

OCGA § 9-11-41(d) provides that: "If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed." Since Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, this language has been clearly construed to mean that payment of the costs in the original action is a precondition to the filing of a new suit. See also Tucker v. Mitchell, 252 Ga. 545, 314 S.E.2d 896, and Foster v. Bowen, 253 Ga. 33, 315 S.E.2d 656.

The cardinal rule in statutory construction is to ascertain the intent of the legislature. Allison v. Domain, 158 Ga.App. 542, 544, 281 S.E.2d 299. Generally, if the legislative intent is plain and expressed unambiguously, no interpretation is required before the court executes its duty to enforce the statute. Atlanta Cas. Co. v. Flewellen, 164 Ga.App. 885, 887, 300 S.E.2d 166, rev'd. in part, 250 Ga. 709, 300 S.E.2d 673. Our Supreme Court applied this rule in Little v. Walker, 250 Ga. 854, 855, 301 S.E.2d 639, supra, Justice Clarke writing for the majority that their holding in that case is "required by the plain meaning of the words of the statute."

However, the facts of the cases sub judice reveal a latent ambiguity in the language of OCGA § 9-11-41(d) which distinguish the cases sub judice from Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, supra, and its precursor Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405. In each of the cases sub judice it is uncontroverted that plaintiffs' attorney made a good faith inquiry of the clerk's office of the trial court (wherein the original action had been filed and dismissed) and "was informed that no costs were due on the previous action." Unlike previous cases, where an attorney intentionally or unwarily failed to pay costs in the previous action, the plaintiffs' attorney in each of the cases sub judice was aware of the statutory requirement that costs be paid in the previous actions and attempted to ascertain plaintiffs' obligation in this regard by a means which an experienced practicing attorney would reasonably expect to produce accurate information. Having been informed by a reliable source (if not the only conceivable...