Johnson v. Wade, 75046
| Decision Date | 29 October 1987 |
| Docket Number | No. 75046,75046 |
| Parties | JOHNSON et al. v. WADE. |
| Court | Georgia Court of Appeals |
Daniel T. Donohue, Atlanta, for appellants.
Richard B. Eason, Jr., Atlanta, for appellee.
Plaintiffs filed suit against defendant on May 22, 1985, seeking damages for personal injuries allegedly sustained when defendant collided with the car in which they were traveling. Defendant answered and filed a counterclaim against two of the plaintiffs. Defendant subsequently served each of the plaintiffs with requests for admissions, requests for production of documents and interrogatories. Plaintiffs responded to the requests for admissions, but failed to respond to the remaining discovery.
On January 23, 1987 defendant filed a Motion for Imposition of Sanctions based on plaintiffs' failure to respond to the discovery, seeking, inter alia, the dismissal of plaintiffs' complaint. See OCGA § 9-11-37 (b) and (d). Plaintiffs never responded to defendant's motion and a hearing was neither requested nor held. On February 17, 1987 one of the plaintiffs (the driver of the car) filed a dismissal with prejudice as to her claims only. On March 24, 1987 the remaining plaintiffs filed a voluntary dismissal pursuant to OCGA § 9-11-41 (a). On March 23, 1987 the trial court signed an order granting defendant's motion for sanctions and dismissing plaintiffs' claims with prejudice; however, the order was not filed until March 30, 1987. Plaintiffs appeal, contending that the trial court's order, filed after their voluntary dismissal pursuant to OCGA § 9-11-41 (a), was a nullity. Held :
1. Pursuant to OCGA § 9-11-41 (a) a plaintiff may voluntarily dismiss his action, without order or permission of the trial court, any time before he rests his case. However, " " (Punctuation omitted.) Pizza Ring Enterprises v. Mills Mgt. Sources, 154 Ga.App. 45(2), 267 S.E.2d 487 (1980). " 'It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.' " Groves v. Groves, 250 Ga. 459, 298 S.E.2d 506 (1983).
Plaintiffs contend that they had no knowledge of the court's decision granting defendant's motion for sanctions and dismissing their action with prejudice at the time they filed their voluntary dismissal. Defendant maintains, however, that plaintiffs acquired knowledge of the trial court's intention to grant the motion on March 13, 1987, as evidenced by a letter attached to defendant's brief. Pretermitting the question of whether that letter, addressed to the trial court and written by defendant's counsel, and which references a "proposed Order" for the court's "consideration," imputed knowledge to plaintiffs of the trial court's decision to dismiss plaintiffs' action with prejudice, this evidence cannot be considered in support of defendant's assertion that plaintiffs had knowledge of the trial court's decision prior to the filing of their dismissal. " Johnson v. Medlin, 178 Ga.App. 650, 651, 344 S.E.2d 504 (1986).
Moreover, although the trial court's order was signed on March 23, 1987, the day before plaintiffs filed their dismissal, we find no evidence that p...
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