Walker v. Mecca , 320 Ga. App. 142 ( 2013 )

McFadden, Judge.

Devona Walker, the parent and guardian of Sherwood Burnett, and Tiyesha Burnett filed a personal injury action against Kyle Mecca, Gerald Mecca and Earl Sheppard III. Finding that the plaintiffs previously had dismissed two prior lawsuits arising from the same automobile accident, the trial court granted the Meccas’ motion to dismiss as to all three defendants on the ground that the action was barred by OCGA § 9-11-41 (a) (3). The plaintiffs appeal, arguing that OCGA § 9-11-41 (a) (3) does not bar the action because the dismissed lawsuits involved different defendants. But there is no such limit on the scope of OCGA § 9-11-41 (a) (3). It applies when an action seeking recovery on the same claim was brought and dismissed twice, regardless of the parties named as defendants. We therefore affirm.

“The facts relevant to this appeal are undisputed, and our review is de novo.” (Citation omitted.) Controlled Blasting v. Viars, 293 Ga. App. 284 (666 SE2d 626) (2008). On June 13, 2009, the plaintiffs were passengers in Sheppard’s vehicle when it was involved in a collision with a vehicle driven by Kyle Mecca. The plaintiffs filed three complaints alleging that they were injured in the accident and seeking recovery for their injuries. They filed a complaint on September 21, 2009, against the Meccas, which they dismissed on June 20, 2011. They filed a complaint on June 6, 2011, against Sheppard, which they dismissed on June 20, 2011. They filed the instant action on July 6,2011, against the Meccas and Sheppard, again alleging that they were injured in the June 13 accident and seeking recovery for their injuries sustained in that accident.

The Meccas moved to dismiss the complaint, arguing that under OCGA § 9-11-41 (a) (3) two previous voluntary dismissals of the personal injury action operate as an adjudication on the merits as to them even though they were not defendants in both previous dismissals of the action. The trial court granted the motion, holding that it applies to all defendants, and the plaintiffs appeal.

Under OCGA § 9-11-41 (a) (3), a voluntary dismissal “is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” As the trial court correctly held, this case is controlled by Belco Electric v. Bush, 204 Ga. App. 811 (420 SE2d 602) (1992). In Belco, decided under a former version of the statute that applied when a party had dismissed an action three times, see Ga. L. 2003, p. 820, § 4, we ruled that “the controlling factor is the third voluntary dismissal of the same cause of action rather than the named party defendants.” Belco, 204 Ga. App. at 815. We held that

[ujnder the plain language of OCGA § 9-11-41 (a), an adjudication on the merits is based not on a requirement that the same defendant was three times dismissed, but because an action seeking recovery on the same claim was brought and voluntarily dismissed three previous times. Thus, the statute is designed to prevent a plaintiff from repeatedly filing actions for the same claim against any defendant, not only previously named defendants.

Id.

In this case, “[although various defendants were named in the suits, the present action, and all of the previous actions brought and voluntarily dismissed by [the plaintiffs], sought recovery on the same claim,” Belco, 204 Ga. App. at 815, the injuries the plaintiffs sustained as a result of the June 13, 2009 accident.

The plaintiffs contend that they may proceed under the authority of Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga. 209 (528 SE2d 508) (2000), and Mateen v. Dicus, 286 Ga. App. 760 (650 SE2d 272) (2007). Those cases involved the issue of whether a voluntary dismissal with prejudice of one party extended to another party. Hedquist, 272 Ga. at 212 (2); Mateen, 286 Ga. App. at 761 (2). Neither of those cases involved the application of OCGA § 9-11-41, and they are therefore not controlling.

The plaintiffs’ two previous voluntary dismissals of the personal injury action operated as an adjudication on the merits, and the trial court correctly granted the motion to dismiss.

Judgment affirmed.

McMillian, J., concurs. Barnes, P. J., concurs fully and specially.