Long v. Greenwood Homes, Inc., S08G1980.

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

679 S.E.2d 712 285 Ga. 560 LONG
v.
GREENWOOD HOMES, INC. No. S08G1980. Supreme Court of Georgia. June 17, 2009.

[679 S.E.2d 713]

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

679 S.E.2d 714

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...