Oseni v. Hambrick

• Decision Date: 25 January 1993
• Docket Number: No. A92A2442,A92A2442
• Citation: 427 S.E.2d 559,207 Ga.App. 166
• Parties: OSENI et al. v. HAMBRICK et al.
• Court: Georgia Court of Appeals

Page 559

427 S.E.2d 559

207 Ga.App. 166

OSENI et al. v. HAMBRICK et al.

No. A92A2442.

Court of Appeals of Georgia.

Jan. 25, 1993.

Daryl Von Yokely, Atlanta, for appellants.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Hakeem Oseni and Darrie Oseni (plaintiffs) sued Jeanette Hambrick and John Thomas Hambrick (defendants) in the State Court of DeKalb County for damages which allegedly arose from an automobile collision. Daryl Von Yokely signed the complaint as "Attorney for Plaintiff" and Richard A. Coleman submitted an entry of appearance on plaintiffs' behalf. Plaintiffs later filed a pretrial order listing attorney Von Yokely and attorney Coleman "as counsel who would conduct the trial for Plaintiffs."

On August 14 and 15, 1991, attorney Coleman appeared for trial and, after a jury was empaneled and sworn, plaintiffs dismissed their complaint without prejudice. On August 21, 1991, the trial court entered an order, directing plaintiffs to pay all court costs plus a jury empaneling fee in the amount of $445 and warning that "[f]ailure to abide by the Court's order shall result in a DISMISSAL of any later attempt by Plaintiff to refile this action." On or about August 21, 1991, the trial judge's calendar clerk mailed a copy of this order to attorney Richard A. Coleman.

On February 28, 1992, attorney Von Yokely filed a renewal action on plaintiffs' behalf pursuant to OCGA § 9-2-61(a). However, plaintiffs did not pay the $445 juror fee until May 21, 1992. Defendant Jeanette Hambrick thereafter filed a motion to dismiss based upon plaintiffs' failure to pay the juror fee before filing the renewal action. In response, plaintiffs filed the affidavit of Stephanie Barrett, "the Office Administration Secretary for Daryl Von Yokely, Esquire." Ms. Barrett deposed, in pertinent part, as follows "[O]n or about February 28, 1992, I telephoned the Office of the Clerk of the State Court of DeKalb County and informed them we had recently dismissed [the original action] and desired to refile the same and was informed that the only amount needed was $41.50 to refile.... Further, no correspondence was received by this office concerning any Order Taxing Court Costs.... Upon notification I forwarded said costs on behalf of the firm promptly."

The trial court granted defendant Jeanette Hambrick's motion to dismiss. This appeal followed. Held:

"It is well established that payment of the accrued costs is a condition precedent to the renewal of the action following a voluntary dismissal. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983). However, 'the costs which must be paid pursuant to OCGA § 9-11-41(d), as a precondition to the filing of a new suit, do not include costs unknown to plaintiff after a good faith inquiry.' Daugherty v. Norville Indus., 174 Ga.App. 89, 91 (329 SE2d 202) (1985)." Kroger Co. v. Michaels, 183 Ga.App. 626, 627, 359 S.E.2d 698.

In the case sub judice, plaintiffs argue that attorney Von Yokely's inquiry with the Clerk of the State Court of DeKalb County regarding fees necessary for filing the renewal action sufficiently excused the failure to pay the $445 juror fee before the filing of the renewal action. This argument ignores unrefuted evidence that the trial judge's calendar clerk...