Rosales v. Davis

• Decision Date: 03 April 2003
• Docket Number: No. A03A0030.,A03A0030.
• Citation: 580 S.E.2d 662,260 Ga. App. 709
• Parties: ROSALES et al. v. DAVIS et al.
• Court: Georgia Court of Appeals

580 S.E.2d 662

260 Ga. App. 709

ROSALES et al. v. DAVIS et al.

No. A03A0030.

Court of Appeals of Georgia.

April 3, 2003.

Reinhardt, Whitley, Wilmot & Summerlin, Glenn Whitley, Tifton, for appellants.

Allen & Forehand, Jon V. Forehand, Moultrie, for appellees. ANDREWS, Presiding Judge.

Elizabeth and Bernard Davis sued for injuries they suffered when the car they occupied was sideswiped and rear-ended by two cars which appeared to be engaged in a chase. The Davises' suit claimed that defendant Michael Rodriguez drove the car which sideswiped their car, and that the chasing car which rear-ended them was owned by defendant Mary Rosales and was driven by defendant Rolando Rosales. Because both of the cars left the scene of the accident before the Davises could identify the cars or drivers, the suit also named John Does as alternative drivers of the cars.

We granted the application of Mary and Rolando Rosales for an interlocutory appeal from the denial of their motion for summary judgment. The Rosaleses admitted that Mr. Rosales owned the car which rear-ended the Davises, but they claimed it had been stolen and denied driving the car at the time of the accident. The Davises claimed that, although there was no direct evidence establishing the driver, the circumstantial evidence was sufficient to create a question of fact as to whether Mr. Rosales was the driver. Because we find an absence of direct or circumstantial evidence sufficient to create a factual issue on the claims against the Rosaleses, we reverse. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

1. First, we address the Davises' claim that, after this appeal was docketed, it became moot and should be dismissed.

Just prior to our order granting the interlocutory appeal, the Davises attempted to voluntarily dismiss their claims against Ms. Rosales pursuant to OCGA § 9-11-41(a), and after the appeal was docketed, they similarly attempted to dismiss their claims against Mr. Rosales pursuant to the same Code section. Neither of these separate attempts, filed without an order from or permission of the court, was an effective dismissal of a party from the suit. Section 9-11-41(a) provides for voluntary dismissal without prejudice of a party's action, but it does not provide for voluntary, unilateral dismissal of a party's claims against some but not all of the parties to an action. Manning v. Robertson, 223 Ga.App. 139, 140-141, 476 S.E.2d 889 (1996). The dismissal of less than all the parties from an action, including while the case is on appeal, is accomplished under OCGA § 9-11-21 with the requirement that it be done by order of the court. Id.; Guhl v. Tuggle, 242 Ga. 412, 414, 249 S.E.2d 219 (1978). Accordingly, the attempted voluntary dismissals were ineffective, and the appeal is not moot.

2. The Davises conceded in their response to the motion for summary judgment that there was no evidence that Ms. Rosales was the owner or driver of the car involved in the accident, so the trial court erred by denying summary judgment to Ms. Rosales. The only contested issue on the motion was whether the circumstantial evidence was sufficient to show Mr. Rosales drove the car which rear-ended the Davises.

Evidence showed that Mr. Davis was driving and was stopped in the road at night behind a car making a left turn when he noticed in his rearview mirror two cars approaching from the rear, one closely following the other at high speed in what appeared to be a chase. Before Mr. Davis could take evasive action, a red car went by in a blur sideswiping him, closely followed by a cream-colored car which rear-ended him. The red car continued on leaving the scene of the accident, and the driver of the cream-colored car backed up and drove away from the scene. Neither Mr. nor Ms. Davis was able to identify the drivers or the cars. The only description the Davises could give besides car color was that the red car looked like a sports car. Although the Davises claim on appeal that they later discovered the red car was a Camaro driven by defendant Rodriguez, they cite only to nonprobative hearsay in support of this claim.¹ The record shows that the cream-colored car was later found damaged and abandoned, and was identified as a Monte Carlo owned by Mr. Rosales. Mr. Rosales admitted he owned the Monte Carlo but denied that he was driving it at the time of the accident. Both Mr. and Ms. Rosales testified that the Monte Carlo was stolen from their residence on the night of the accident and gave the following account of events. Mr. Rosales, who was the primary driver of the car, commonly left the keys in the car when it was parked at their residence. On the night of...