Manning v. Robertson

Decision Date10 October 1996
Docket NumberNo. A96A1107,A96A1107
Citation223 Ga.App. 139,476 S.E.2d 889
PartiesMANNING et al. v. ROBERTSON et al.
CourtGeorgia Court of Appeals

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Richard A. Carothers, John E. Underwood, Sr., Lilburn, Caryl Sumner, Lawrenceville, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Gregory H. Wheeler, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

After our grant of an interlocutory appeal, J. Robert Manning and Kim Conroy appeal the trial court's order dismissing their cross-claim against L. Taylor Robertson, Robertson-Loia, P.C., and Robertson-Loia-Roof, P.C. The issues in this appeal concern the authority of a plaintiff to dismiss one of several defendants from the action without permission from the trial court and the actions necessary to assert a cross-claim against other defendants.

Manning and Conroy are Gwinnett County employees who, as alleged by plaintiffs below, Nancy Hunt on behalf of her daughter and by the daughter, Jessica Lane, failed to remedy or warn the public of a dangerous situation involving storm water runoff on a street in Gwinnett County. L. Taylor Robertson, Robertson-Loia, P.C., and Robertson-Loia-Roof, P.C. (collectively "the Robertson defendants") designed the allegedly defective storm water drainage and retention systems implemented in an adjacent shopping center. Hunt and Lane sued Manning, Conroy, and the Robertson defendants after Lane suffered a broken neck in an automobile accident that occurred during a period of heavy rainwater runoff.

Subsequently, the Robertson defendants settled with the plaintiffs and Hunt and Lane purported to dismiss their claim against the Robertson defendants on March 27, 1995. Manning and Conroy, on May 19, 1995, filed a pleading that purported to restate and by amendment cross-claim against the Robertson defendants claims for indemnity and contribution, which cross-claims allegedly appeared in their affirmative defenses portion of the original answer. The Robertson defendants moved to dismiss these amendments asserting that Manning and Conroy's original pleadings were not sufficient to put them on notice that a cross-claim was being asserted against them.

The trial court concluded that Manning and Conroy's original answers did not assert cross-claims against the Robertson defendants because the pleadings did not contain demands for judgment against the Robertson defendants for the relief to which Manning and Conroy deemed themselves entitled. See OCGA § 9-11-8(a)(2)(B). Thus, the trial court concluded there were no cross-claims to amend, and based upon this premise, the trial court viewed the purported amendments to the cross-claim as invalid attempts to assert original cross-claims against persons who were no longer parties to the case. Therefore, the trial court dismissed the pleadings filed on May 19, 1995.

Manning and Conroy now appeal from that order. They contend the trial court erred by dismissing their cross-claims for contribution and indemnity asserted against Robertson-Loia in their first responsive pleading because the cross-claims met the minimum requirements of notice pleadings even though they were mistakenly designated as affirmative defenses. They further assert the trial court erred by dismissing their cross-claims for contribution and indemnity because the Robertson defendants were not effectively dismissed as parties to the action at the time Manning and Conroy amended their answers to state more specifically their cross-claims. They also allege the trial court erred by construing their cross-claims as statements of law rather than cross-claims for contribution and indemnity because such a construction failed to do substantial justice and would effectively deny them any remedy against the Robertson defendants because of the Statute of Ultimate Repose, OCGA § 9-3-51. Held:

1. Although not raised by the parties or the trial court, under OCGA § 9-11-21 parties are added or dismissed from an action by order of the court, and this court has previously held that the dropping of parties requires the exercise of discretion by the trial court. Cartin v. Boles, 155 Ga.App. 248, 254, 270 S.E.2d 799. OCGA § 9-11-41(a), relied upon by appellees, allows for the voluntary dismissal of a party's complaint (Smith v. Memorial Medical Center, 208 Ga.App. 26, 29, 430 S.E.2d 57); it does not provide for the voluntary, unilateral dismissal of a party's claims against some but not all of the parties to an action. See Young v. Rider, 208 Ga.App. 147, 148, 430 S.E.2d 117. "The adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court. Obtaining leave of court is a requisite." (Citation and punctuation omitted.) Dollar Concrete Constr. Co. v. Watson, 207 Ga.App. 452, 453, 428 S.E.2d 379. Although many cases interpreting OCGA § 9-11-21 concern the adding of parties, we perceive no reason why the same standards should not apply to the dropping of parties. Further our Supreme Court has recognized that "there is a distinction between the provisions of the Georgia rule and the federal rule which suggests that [OCGA § 9-11-41(a) ] could be interpreted to allow a voluntary dismissal only of the entire action. If so, a voluntary dismissal of less than all of several defendants must be accompanied by a ruling of the trial court under [OCGA § 9-11-21] to be effective." State of Ga. v. Golia, 235 Ga. 791, 795, 222 S.E.2d 27.

Although Smithloff v. Benson, 173 Ga.App. 870, 875-876(4), 328 S.E.2d 759 appears to authorize the dropping of parties without court approval, that case failed to consider the requirements of OCGA § 9-11-21. Thus Smithloff v. Benson, supra, is not precedent that OCGA § 9-11-21 does not require court approval to drop parties. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89, 114 S.E.2d 529. See also Young v. Rider, 208 Ga.App. 147, 430 S.E.2d 117. Therefore, it is not a correct statement of our law, and to the extent that Smithloff v. Benson, and cases relying upon that case, allow the dropping of parties in a multi-party case without the approval of the trial court, they must be overruled.

Accordingly, w...

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  • Brown v. Lanier Worldwide, Inc.
    • United States
    • Texas Court of Appeals
    • January 6, 2004
    ...was in fact dismissed from the Georgia suit. See Rosales v. Davis, 260 Ga.App. 709, 580 S.E.2d 662, 663 (2003); Manning v. Robertson, 223 Ga.App. 139, 476 S.E.2d 889, 891 (1996); see also Ga.Code Ann. § 9-11-21 (1966). However, based on our findings of misnomer and estoppel, even if the ord......
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    ...are treated according to their substance rather than their name. McDonald v. State, 222 Ga. 596, 151 S.E.2d 121; Manning v. Robertson, 223 Ga.App. 139, 142, 476 S.E.2d 889. The substance of this motion was merely to dismiss Pauline Walker personally, and not to dismiss the driver of her veh......
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    ...treat it as a contract claim in their arguments on appeal. Accordingly, we will analyze it as such. See Manning v. Robertson, 223 Ga.App. 139, 142(2), 476 S.E.2d 889 (1996) (courts look to substance and not nomenclature of ...
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    ...permit the adding or dropping of parties under OCGA § 9-11-21 requires the court to exercise its discretion, Manning v. Robertson , 223 Ga. App. 139, 141 (1), 476 S.E.2d 889 (1996), and the statute is not a device for dismissing the claims of parties on the merits. See Benedek v. Board of R......
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