Lakes v. Marriott Corp.

• Decision Date: 26 September 1994
• Docket Number: No. S94G0066,S94G0066
• Citation: 448 S.E.2d 203,264 Ga. 475
• Parties: Delores Toni LAKES et al. v. MARRIOTT CORPORATION et al.
• Court: Georgia Supreme Court

Page 203

448 S.E.2d 203

264 Ga. 475

Delores Toni LAKES et al. v. MARRIOTT CORPORATION et al.

No. S94G0066.

Supreme Court of Georgia.

Sept. 26, 1994.

Joseph H. King, Jr., Simmons & Toliver, Atlanta, for Lakes et al.

Amanda H. Burri, Michael J. Gorby, Martha D. Turner, Gorby, Reeves, Moraitakis & Whiteman, P.C., Atlanta, for Marriott Corp. et al.

BENHAM, Presiding Justice.

Appellants filed a tort action against appellees. In accordance with a local rule, ¹ the case was scheduled for pre-trial non-binding arbitration. When appellants did not appear for arbitration, an award was entered in appellees' favor. Then, when a demand for jury trial had not been filed with the Court Administrator within 30 days after the arbitration award as required by the rule (appellants filed their demand with the clerk of court), appellees moved for entry of judgment pursuant to Turner v. MARTA, 197 Ga.App. 447, 398 S.E.2d 794 (1990). ² Prior to a scheduled hearing on that motion, ³ appellants filed a voluntary dismissal pursuant to OCGA § 9-11-41(a). Just over a month later, appellants filed the same tort action again as a renewal action under OCGA § 9-2-60. On appellees' motion, the trial court entered judgment for appellees in the first case, holding that appellants were not entitled to dismiss voluntarily. In the second case, the trial court held that appellants were barred from recovery by res judicata. The Court of Appeals affirmed, holding that appellants were not authorized to dismiss the first action because appellees were already entitled to judgment due to appellants' failure to file the demand for trial properly: "Thus, the handwriting was on the wall and [appellants] knew the actual result of their case." Lakes v. Marriott Corp., 210 Ga.App. 335, 436 S.E.2d 36 (1993). This court granted appellants' application for certiorari, posing the question whether appellants were entitled to refile their action after a voluntary dismissal under the facts of this case.

The intent of the legislature in enacting OCGA § 9-11-41(a) was to give a plaintiff an opportunity to escape from an "untenable position" and relitigate the case, and thus there is no "bad-faith exception" to the right to dismiss and later relitigate, despite inconvenience and irritation to the defendant. C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co., 199 Ga.App. 197, 404 S.E.2d 346 (1991). However, the right to dismiss voluntarily is not without limit: in addition to the express limits in OCGA § 9-11-41(a) regarding the timing of dismissal and regarding cases in which a counterclaim has been asserted, ⁴

the right of voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, where there has already been an announcement by the court of its intention to rule in favor of the defendant.

Muhanna v. O'Kelley, 185 Ga.App. 220, 363 S.E.2d 626 (1987). The reason for that limitation was explained in Peoples Bank of Talbotton v. Exchange Bank, 119 Ga. 366, 368, 46 S.E. 416 (1903):

The principle ... is that 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 cannot, 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.

In reaching its decision in the present case, the Court of Appeals equated a party's entitlement to judgment under Turner, supra, with knowledge of the actual result of the case. That equation is faulty because a defendant's entitlement to judgment under Turner, like a defendant's entitlement to summary judgment (see Muhanna, supra), does not amount to knowledge of the actual, as opposed to possible, result of the case: until the entry of that judgment or an announcement by the trial court of an intent to rule for the defendant, the defendant has only an expectation of being awarded a judgment. That is to say, without an announcement from the trial court of the actual outcome of the case, the "handwriting on the wall" is merely in pencil, subject to being erased. In concluding that such "handwriting on the wall" as appeared in this case was indelible, the Court of Appeals did not take into account the lessons of its earlier and correct decisions in Bailey v. Austin, 185 Ga.App. 831, 366 S.E.2d 214 (1988), and Muhanna v. O'Kelley, supra.

In Bailey, the plaintiff was given a set time to respond to discovery or have her case dismissed with prejudice. She did not respond in a timely fashion, but did dismiss her case on the same day that the trial court entered an order of dismissal. The Court of Appeals held that since the trial court would have had to hold a hearing before dismissal in order to evaluate the reasons for the plaintiff's failure to comply with the previous order, the threatened sanction of dismissal was not an announcement of a result within the meaning of Muhanna, supra, and the voluntary dismissal was effective. The situation in Bailey is distinguishable from that in Kilby v. Keener, 249 Ga. 667, 293 S.E.2d 318 (1982) (cited by the Court of Appeals in its opinion in the present case), in that the plaintiff in Bailey was threatened with the entry of judgment in the event she did not comply with an order of the court, whereas the plaintiff in Kilby had already suffered a dismissal, but was given the right to have that dismissal vacated by amending the complaint. See Peacock Constr. Co. v. Chambers, 223 Ga. 515, 156 S.E.2d 348 (1967).

In Muhanna, the Court of Appeals dealt with the interplay of OCGA § 9-11-41(a) and OCGA § 9-11-56(c), which provides in pertinent part that

judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

At the conclusion of a summary judgment hearing, but before the trial court had announced a decision, the...