Long v. Greenwood Homes, Inc.

• Decision Date: 17 June 2009
• Docket Number: No. S08G1980.,S08G1980.
• Citation: 679 S.E.2d 712,285 Ga. 560
• Parties: LONG v. GREENWOOD HOMES, INC.
• Court: Georgia Supreme Court

679 S.E.2d 712

285 Ga. 560

LONG v. GREENWOOD HOMES, INC.

No. S08G1980.

Supreme Court of Georgia.

June 17, 2009.

William R. Carlisle, Lawrenceville, for appellant.

Allen Kopel & Associates, Adam H. Long, Veronica H. Cope, Atlanta, for appellee.

Susan B. Ellis, amicus curiae.

BENHAM, Justice.

After judgment was entered against her in the Magistrate Court of DeKalb County, appellant Larue Long filed an appeal in superior court pursuant to OCGA § 15-10-41(b)(1). Long then filed a voluntary dismissal in the superior court pursuant to OCGA § 9-11-41(a)(1)(A)¹ and timely filed a renewal action three months later. See OCGA § 9-2-61(a). Appellee Greenwood Homes filed a motion for summary judgment in the renewal action, contending that, under OCGA § 5-3-7, the voluntary dismissal effectively reinstated the judgment entered by the magistrate court.² The trial court denied the motion for summary judgment, holding that Long was entitled to file a renewal action because the voluntary dismissal eliminated both the magistrate court judgment and the case pending in the superior court.

The Court of Appeals granted the application for interlocutory review filed by Greenwood Homes and issued an opinion in which it held Greenwood Homes was entitled to summary judgment. The Court of Appeals perceived a conflict between OCGA §§ 5-3-7 and 9-11-41(a)(1) and, applying the principle that "a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent, to resolve any inconsistency between them," determined that OCGA § 5-3-7 governed because it specifically addresses the dismissal of an appeal to the superior court while § 9-11-41(a)(1) addresses the dismissal of actions in general. Greenwood Homes v. Long, 293 Ga.App. 18, 20, 666 S.E.2d 450 (2008). We granted Long's petition for a writ of certiorari because we were concerned with whether the Court of Appeals erred in finding that OCGA § 5-3-7 applied to render final the magistrate court's judgment where the plaintiff attempted to voluntarily dismiss under OCGA § 9-11-41.

We disagree with the analysis of the Court of Appeals. The issues are whether Long was authorized to exercise her right under OCGA § 9-11-41(a)(1) to voluntarily dismiss the superior court litigation and, if she was so authorized, the effect of the voluntary dismissal. We hold that Long was authorized to dismiss the superior court litigation and the result of her action was the dismissal of her case, not the dismissal of her appeal.

The appeal of the magistrate court judgment to the superior court is a de novo investigation which "brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case." OCGA § 5-3-29. The filing of the de novo appeal in superior court has the same effect "as if it had been commenced originally in the superior court." Fagan v. McTier, 81 Ga. 73, 75, 6 S.E. 177 (1888). "Upon a de novo appeal, the state [or superior] court is to `try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.' [Cit.]." Scott v. Aaron, 221 Ga.App. 254, 471 S.E.2d 55 (1996). "[T]he magistrate court's judgment has no bearing on the merits of the main claim" (Howe v. Roberts, 259 Ga. 617(2), 385 S.E.2d 276 (1989)), and "`[i]t is not the province of the superior court on such an appeal to review and affirm ..., but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.' [Cit.]" Knowles v. Knowles, 125 Ga.App. 642(1), 188 S.E.2d 800 (1972).

OCGA § 9-11-41(a), the voluntary dismissal statute, can be exercised in the de novo appeal filed in superior court since it is contained in the Civil Practice Act, which is applicable to the de novo appeal filed in state or superior court following the entry of a judgment in magistrate court. Howe v. Roberts, supra, 259 Ga. at 619, n. 6, 385 S.E.2d 276. The voluntary dismissal worked a dismissal of the case pending in superior court and did not dismiss the appeal. Fagan v. McTier, supra, 81 Ga. at 75, 6 S.E. 177 (plaintiff's voluntary dismissal of de novo appeal to superior court dismissed the case and did not dismiss the appeal). See also Scott v. Aaron, supra, 221 Ga.App. at 255, 471 S.E.2d 55 (ambiguous dismissal order of de novo appeal for want of prosecution (OCGA § 9-11-41(b)(1)) construed as being a dismissal of the entire action pending in state court rather than of the de novo appeal); Rousch v. Green, 2 Ga.App. 112, 58 S.E. 313 (1907) (in light of the de novo character of the appeal to superior court, it is error to dismiss de novo appeal when plaintiff does not appear; a defendant is restricted to seeking dismissal of the case).

Because Long was authorized to file a voluntary dismissal of her superior court litigation under OCGA § 9-11-41(a)(1)(A), because the filing of the voluntary dismissal of the superior court dismissed her case but did not dismiss her appeal, and because Long timely filed a renewal action, the trial court was correct when it denied summary judgment to Greenwood Homes in the renewal action. The Court of Appeals erred when it reversed the judgment of the trial court.

Judgment reversed.

All the Justices concur, except THOMPSON, HINES, and MELTON, JJ., who dissent.

1. OCGA § 9-11-41(a)(1) states that "[s]ubject to the provisions of [OCGA § 9-11-23(e) which deals with class actions], Code Section 9-11-66 [which concerns actions in which a receiver is appointed], and any statute, an action may be dismissed by a plaintiff, without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn...."

2. OCGA § 5-3-7 provides that "[a]n appeal shall suspend but not vacate a judgment and, if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered."

MELTON, Justice, dissenting.

Because I believe that the plain and unambiguous terms of OCGA § 5-3-7 are applicable to this case, I must respectfully dissent.

"If the words of a statute ... are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words." Busch v. State, 271 Ga. 591, 592, 523 S.E.2d 21 (1999). "Where a statute is susceptible of one and only one construction, this court can not adopt a different construction merely to relieve [the] parties of some real or imagined hardship; but if the law is valid, we can only apply it in the form into which it was finally adopted as a statute by the lawmaking body." (Citation and punctuation omitted.) State Revenue Comm. v. Nat. Biscuit Co., 179 Ga. 90, 100, 175 S.E. 368 (1934).

This case involves an appeal to a superior court. Without limitation, OCGA § 5-3-7 addresses exactly what must happen if such an appeal is dismissed. It mandates that "[a]n appeal shall suspend but not vacate a judgment and, if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered." As a result, when Larue Long initially appealed her case to the Superior Court of DeKalb County, it suspended the judgment already received in magistrate court. When Long later dismissed her appeal to the superior court, however, the judgment of the magistrate court was reinstated, "as if no appeal had been entered." That is the law as drafted, and that is the law we must apply.

The holding of the majority would throw any decision by a magistrate court into uncertainty. A party who wished to avoid an adverse ruling of the magistrate court could simply appeal that ruling, dismiss the appeal, and effectively vacate the magistrate's decision. The majority appears distracted by the fact that the appeal to the superior court is de novo; however, the fact of a de novo appeal has no impact on this question. When a losing party appeals from an adverse ruling, that party is seeking to have a higher court change the outcome of the lower court ruling. There are a number of standards of review that the reviewing court might apply....