Joyner v. Leaphart

• Decision Date: 22 June 2022
• Docket Number: S21G0764
• Citation: 314 Ga. 1,875 S.E.2d 729
• Parties: JOYNER et al. v. LEAPHART et al.
• Court: Georgia Supreme Court

314 Ga. 1

875 S.E.2d 729

JOYNER et al.

v.LEAPHART et al.

S21G0764

Supreme Court of Georgia.

Decided: June 22, 2022

James Hugh Potts, II, General Counsel, Eugene D. Butt, James Hugh Potts II, LLC, 1348 Ponce de Leon Ave, NE, Atlanta, Georgia 30306, for Appellant.

Jason Lance Crawford, Crawford & Brown Law Firm LLP, P.O. Box 1118, Columbus, Georgia 31902, for Amicus Appellant.

Irving William Drought, III, Andrew McLean Wilkes, Oliver Maner, LLP, P.O. Box 10186, Savannah, Georgia 31412, Christopher Weis Phillips, Hunter, Maclean, Exley & Dunn PC, 200 East Saint Julian Street, P.O. Box 9848, Savannah, Georgia 31412-0048, for Appellee.

Ellington, Justice.

In Joyner v. Leaphart , 358 Ga. App. 383, 853 S.E.2d 407 (2021), the Court of Appeals affirmed the trial court's order dismissing with prejudice Vanessa and Brock Joyner's wrongful death action against defendants Dr. Lynn Leaphart and MPPG, Inc. ("MPPG"), in accordance with the "two-dismissal rule" of OCGA § 9-11-41 (a) (3)¹ following the Joyners’ voluntary dismissal of two later-filed actions. In Division 2 of its opinion, the Court of Appeals held that, even though the Joyners’ second and third actions were filed against defendants who were not sued in the original, pending action, the two-dismissal rule nevertheless applied, and the second voluntary dismissal operated as an adjudication on the merits requiring the dismissal of the action against Leaphart and MPPG. See Joyner , 358 Ga. App. at 384-385 (2), 853 S.E.2d 407. We granted the Joyners’ petition for a writ of certiorari to consider the following question:

Did the Court of Appeals err in holding that the two-dismissal rule, see OCGA § 9-11-41 (a) (3), applies to the second voluntary dismissal of an action, regardless of the parties named as defendants therein?

As explained below, we answer this question in the affirmative. Therefore, we reverse Division 2 of the opinion of the Court of Appeals, vacate the remainder of the opinion, and remand the case for further proceedings consistent with this opinion.

1. Procedural background. After their newborn son died in a Savannah hospital, the Joyners decided to bring a wrongful death action. On August 17, 2016, the Joyners filed a complaint in the State Court of Fulton County, naming Leaphart, several nurses, and several corporate entities as defendants.² Upon determining that Chatham County was a more convenient forum for the litigation, the Fulton State Court transferred the action to the State Court of Chatham County. Within a few months of filing the original action, the Joyners decided to also sue Memorial Health University Medical Center, Inc. ("Memorial," the nurses’ employer) and MPPG (Leaphart's employer). Instead of seeking to add these defendants to the original action then pending in Chatham County, the Joyners filed two new actions in Fulton County: the first against Memorial on November 23, 2016,³ and the second against MPPG on December 21, 2016. Neither defendant was sued in the original action.⁴ The Joyners contend they did this because their attorneys were in Atlanta, electronic filing was not yet available in the State Court of Chatham County, and they believed their claims were about to become time-barred. The complaints filed in each of the three civil actions arose from the same events surrounding the infant's death, made similar allegations of negligence, and posed similar claims for relief. However, each complaint sought relief from different defendants.⁵

The Chatham County court entered a consent order on April 26, 2017, which authorized the Joyners to file an amended complaint adding Memorial and MPPG as defendants in the original action. Then on May 5, 2017, before adding Memorial and MPPG to the Chatham County action, the Joyners dismissed the Fulton County actions – the lawsuit against Memorial first and, a few minutes later, the lawsuit against MPPG. On October 12, 2017, Leaphart and MPPG moved to dismiss the Chatham County action, invoking the two-dismissal rule of OCGA § 9-11-41 (a) (3) and arguing that the Joyners’ notices of voluntary dismissal in the two later-filed Fulton County actions resulted in an adjudication on the merits of the claims against Leaphart and MPPG, requiring their dismissal from the pending Chatham County action on res judicata grounds.

Before ruling on the motion to dismiss, the Chatham County court stayed the action so the Joyners could move to withdraw or to set aside their voluntary dismissals of the Fulton County actions. The Fulton County court denied the Joyners’ motions. The Joyners appealed, but the Court of Appeals dismissed the appeal as untimely and for failure to follow the discretionary appeal procedure. The Chatham County court then lifted its stay, granted the motion to dismiss, and entered a final judgment in favor of defendants Leaphart and MPPG, which the Court of Appeals affirmed. See Joyner , 358 Ga. App. at 384 (1), 853 S.E.2d 407.

The Court of Appeals stated that OCGA § 9-11-41 is the statute governing voluntary dismissals and that "the filing of a second notice of [voluntary] dismissal operates as an adjudication upon the merits." Joyner , 358 Ga. App. at 384 (2), 853 S.E.2d 407 (citing OCGA § 9-11-41 (a) (3) ). According to the Court of Appeals, "before amending the Chatham County lawsuit to add [Memorial and MPPG], the Joyners made their fatal mistake. In what appears to have been intended as a step in implementing the parties’ agreement, they voluntarily dismissed the two Fulton County lawsuits." Id. at 384 (1), 853 S.E.2d 407. The Court of Appeals reasoned:

"[U]nder OCGA § 9-11-41 (a) (3), a plaintiff who has voluntarily dismissed a complaint two times is barred by the res judicata effect of that provision from" pursuing a third complaint. Cracker Barrel Old Country Store v. Robinson , 341 Ga. App. 285, 286, 800 S.E.2d 372 (2017). That rule "applies when an action seeking recovery on the same claim was brought and dismissed twice, regardless of the parties named as defendants." Walker v. Mecca , 320 Ga. App. 142, 143, 739 S.E.2d 450 (2013). Presiding Judge Barnes concurred fully and specially in Walker , acknowledging that the holding we reaffirmed in that case was compelled by the "language and structure of OCGA § 9-11-41" but urging "the General Assembly [to] amend OCGA § 9-11-41 so that the ‘two dismissal’

rule applies only to the same or substantially the same defendant." Walker , 320 Ga. App. at 144 (Barnes, P. J., concurring fully and specially). She urged that so limiting the rule would be consistent with the commonly understood public policy behind the rule: preventing harassment of a defendant with repeated lawsuits. Id. at 145 . And she urged that "application of the ‘two dismissal’ rule to unrelated defendants is inconsistent" with our understanding of the closely related renewal statute, OCGA § 9-2-61 – that "the second-filed suit must involve the same or ‘substantially identical’ defendants for the privilege of renewal to be exercised." Id. at 146 .

(Punctuation omitted.) Joyner , 358 Ga. App. at 384-385 (2), 853 S.E.2d 407. Applying this rationale and its precedent, and noting that the General Assembly had not amended OCGA § 9-11-41 (a) (3) as Presiding Judge Barnes urged in Walker , the Court of Appeals held that "the rule that a second notice of voluntary dismissal of the same claim operates as an adjudication upon the merits, regardless of the parties named as defendants, remains the law[,]" and affirmed the trial court's dismissal order. Joyner , 358 Ga. App. at 385 (2), 853 S.E.2d 407.

2. Analysis.

(a) The two-dismissal rule. OCGA § 9-11-41 (a),⁶ which governs voluntary dismissals, provides that filing a second notice of dismissal of an action operates as an adjudication upon the merits of that action. See OCGA § 9-11-41 (a) (3). The plain text of the statute provides that the two-dismissal rule applies to actions, not to claims. This was not always the case.

In 1966, the General Assembly enacted the Civil Practice Act. See Ga. L. 1966, pp. 609-691.⁷ The first iteration of the voluntary dismissal rule provided in pertinent part that "[a] dismissal under this paragraph is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim. " (Emphasis supplied.) Ga. L. 1966, p. 653, § 41 (a). Then, in 1985, the General Assembly repealed and replaced OCGA § 9-11-41 (a). See Ga. L. 1985 pp. 546-547, §§ 1-2. The new subsection (a) did not include the language "an action based on or including the same claim," and provided that "[a] dismissal under this subsection is without prejudice, except that the filing of a third notice of dismissal operates as an adjudication upon the merits." Id. at p. 546-547 § 1 (codified as OCGA § 9-11-41 (a) (1985)). Finally, in 2003, the General Assembly amended the voluntary dismissal rule so that it applied to a second, instead of a third, notice of dismissal. See Ga. L. 2003, p. 824, § 4 (codified as OCGA § 9-11-41 (a) (3) ).

The General Assembly has not amended the two-dismissal rule to reinstate the "same claim" language, and the current rule thus provides that "[a] dismissal [of an action] under this subsection is without prejudice, except that the filing of a second notice of dismissal [of an action] operates as an adjudication upon the merits." (Emphasis supplied.) OCGA § 9-11-41 (a) (3). The language "this subsection" references subsection (a), which, in turn, provides for the voluntary dismissal by a plaintiff of "an action," making it clear that the General Assembly meant the two-dismissal rule to apply to the plaintiff's entire action, not to individual claims.⁸ As used in Title 9, an "action" is simply "the judicial means of enforcing a right." OCGA § 9-2-1 (1). Thus, in considering whether to grant Leaphart and MPPG's motion to dismiss, the trial court's first step was to determine whether the...