Vanessa Joyner v. Lynn Leaphart ( 2021 )

FIFTH DIVISION
MCFADDEN, C. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
January 22, 2021
In the Court of Appeals of Georgia
A20A2097. JOYNER et al. v. LEAPHART et al.
MCFADDEN, Chief Judge.
This is a wrongful death action, alleging medical and nursing malpractice.
Plaintiffs Vanessa and Brock Joyner appeal an order dismissing with prejudice all of
their claims against the appellees, defendants Lynn Leaphart, M. D. and MPPG, Inc.
The Joyners argue that the two-dismissal rule of OCGA § 9-11-41 (a) (3) — that the
filing of a second notice of voluntary dismissal operates as an adjudication on the
merits — does not apply. But it does, and we must affirm.
1. Background.
The Joyners’ fatal misstep arose out of the transfer of their case, on forum non
conveniens grounds, from Fulton to Chatham County. The misstep occurred in their
subsequent attempt to add two more defendants.
The Joyners initially brought this action in the State Court of Fulton County.
Dr. Leaphart was among the several defendants named. That court found Chatham
County to be a more convenient forum and transferred the case to the state court of
that county.
Thereafter the Joyners undertook to bring in two additional defendants. MMPG
was one of those defendants. (The other is not a party to this appeal.) Because they
believed the statute of limitation was imminent, their attorneys were in Atlanta, and
electronic filing was not yet available in the State Court of Chatham County, the
Joyners chose to do so by filing separate actions against them in Fulton State Court.
The parties agreed that the two new actions needed to become part of the case
pending in the Chatham State Court. The Chatham court entered a consent order
providing that the Joyners could add the defendants named in the two new Fulton
County cases to the Chatham County case.
But before amending the Chatham County lawsuit to add those defendants, the
Joyners made their fatal mistake. In what appears to have been intended as a step in
implementing the parties’ agreement, they voluntarily dismissed the two Fulton
County lawsuits.
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The appellees then invoked the two-dismissal rule of OCGA § 9-11-41 (a) (3).
They moved to dismiss the Chatham County lawsuit — which was the only remaining
lawsuit — on the grounds that the Joyners’ two voluntary Fulton County dismissals
resulted in an adjudication on the merits.
Before ruling on the motion to dismiss, the Chatham State Court stayed the
case so that the Joyners could attempt to withdraw or to move to set aside their
voluntary dismissals of the Fulton County complaints. The Joyners filed a motion to
set aside the voluntary dismissals in the Fulton State Court. But that court denied the
motion.
The Joyners filed a notice of appeal of that denial. But we dismissed their
appeal as untimely and for failure to follow the discretionary appeal procedure, which
must be followed in order to appeal from the denial of a motion to set aside. See
OCGA § 5-6-35 (a) (8).
The Chatham State Court then lifted its stay and granted Leaphart and MPPG’s
motion to dismiss. The Joyners filed this appeal.
2. OCGA § 9-11-41.
OCGA § 9-11-41 is the statute that governs voluntary dismissals. It authorizes
plaintiffs to dismiss without prejudice, providing in part that “an action may be
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dismissed by the plaintiff, without order or permission of court [b]y filing a written
notice of dismissal at any time before the first witness is sworn[.]” OCGA § 9-11-41
(a) (1) (A).
But, as noted, “the filing of a second notice of [voluntary] dismissal operates
as an adjudication upon the merits.” OCGA § 9-11-41 (a) (3). “It follows that, under
OCGA § 9-11-41 (a) (3), a plaintiff who has voluntarily dismissed a complaint two
times is barred by the res judicata effect of that provision from” pursuing a third
complaint. Cracker Barrel Old Country Store v. Robinson, 341 Ga. App. 285, 286
(800 SE2d 372) (2017).
That rule “applies when an action seeking recovery on the same claim was
brought and dismissed twice, regardless of the parties named as defendants.” Walker
v. Mecca, 320 Ga. App. 142, 143 (739 SE2d 450) (2013).
Presiding Judge Barnes concurred fully and specially in Walker,
acknowledging that the holding we reaffirmed in that case was compelled “by the
language and structure of OCGA § 9-11-41” but urging “the General Assembly [to]
amend OCGA § 9-11-41 so that the ‘two dismissal’ rule applies only to the same or
substantially the same defendant[.]” Walker, 320 Ga. App. at 144 (Barnes, P. J.,
concurring fully and specially). She urged that so limiting the rule would be
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consistent with the commonly understood public policy behind the rule: preventing
harassment of a defendant with repeated lawsuits. Id. at 145. And she urged that
“application of the ‘two dismissal’ rule to unrelated defendants is inconsistent” with
our understanding of the closely related renewal statute, OCGA § 9-2-61 — that “the
second-filed suit must involve the same or ‘substantially identical’ defendants for the
privilege of renewal to be exercised.” Id. at 146.
But the General Assembly has not amended OCGA § 9-11-41 since we decided
Walker. 320 Ga. App. 142. So the rule that a second notice of voluntary dismissal of
the same claim operates as an adjudication upon the merits, regardless of the parties
named as defendants, remains the law.
3. Chatham State Court order granting consent motion to allow the Joyners to
add parties.
The Joyners argue that the Chatham State Court’s grant of the consent motion
to allow them to add parties precluded the dismissal of their complaint. They urge us
to characterize that order as a transfer order, “transferring Memorial and MPPG, Inc.
to the State Court of Chatham County where venue was proper.” The Joyners then
argue that the court erred in dismissing their complaint because where venue is
improper, the correct remedy is to transfer, not to dismiss. But the order was not a
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transfer order. It did not transfer anything (and we do not think the Chatham State
Court could transfer actions pending in the Fulton State Court). The order simply
granted the Joyners permission to amend their complaint to add defendants.
Similarly, the Joyners argue that since venue was improper in Fulton County,
where they filed their second and third lawsuits after the first lawsuit had been
transferred to Chatham County, their voluntary dismissals must be treated as motions
to transfer their cases to Chatham County. But the Joyners cite no authority that
would have directed or authorized either the Fulton State Court or the Chatham State
Court to treat a plaintiff’s own voluntary dismissal as a motion to transfer. To so hold
would infringe upon a plaintiffs’ right to file a voluntary dismissal and thereby
terminate an action. Page v. Holiday Inns, 245 Ga. 12, 12-13 (262 SE2d 783) (1980).
3. Prior pending action statutes.
The Joyners also argue that their dismissals were not voluntary because they
were mandated by the “prior pending action” statutes. OCGA §§ 9-2-5 (a) (“No
plaintiff may prosecute two actions in the courts at the same time for the same cause
of action and against the same party. If two such actions are commenced
simultaneously, the defendant may require the plaintiff to elect which he will
prosecute. If two such actions are commenced at different times, the pendency of the
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former shall be a good defense to the latter.”); 9-2-44 (a) (“A former recovery or the
pendency of a former action for the same cause of action between the same parties in
the same or any other court having jurisdiction shall be a good cause of abatement.”).
They further argue that because their dismissals were mandated, not voluntary,
OCGA § 9-11-41 does not apply.
Nothing in those statutes, however, requires a plaintiff to dismiss a lawsuit.
Rather, the statutes provide a defense to a defendant against whom another lawsuit
for the same cause of action is pending. “The remedy thus provided for violation of
OCGA § 9-2-5 (a) is in the nature of a shield by which an aggrieved defendant may
protect himself from defending duplicitous lawsuits.” Hose v. Jason Prop. Mgmt. Co.,
178 Ga. App. 661, 663 (344 SE2d 483) (1986). The statutes would have provided
Memorial and MPPG a defense had the Fulton State Court actions been pending when
they were added as parties to the action transferred from Fulton County to Chatham
County. The statutes did not require the Joyners to dismiss their lawsuits nor did the
statutes render the Joyners’ dismissals void or nullities. See Zohoury v. Zohouri, 218
Ga. App. 748, 749-750 (3) (463 SE2d 141) (1995) (rejecting appellants’ argument
that some of their dismissals should not count for purposes of OCGA § 9-11-41 (a)
because they were duplicative of prior pending actions, and thus, mandated under
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OCGA § 9-2-5 (a), because “the existence of a prior pending action is a good defense
to a second action, but this does not, without more, render the second action void or
a nullity.”) (punctuation omitted).
4. Judicial estoppel.
The Joyners argue that Leaphart and MPPG are judicially estopped from
raising the defense of OCGA § 9-11-41 (a) (3). We disagree.
The purpose of the equitable doctrine of judicial estoppel is to protect the
integrity of the judicial process. Ibf Participating Income Fund v. Dillard-Winecoff,
275 Ga. 765, 766 (573 SE2d 58) (2002). Therefore, for judicial estoppel to apply, the
party to be estopped “must have succeeded in persuading a court to accept the party’s
earlier position; . . . absent success in a prior proceeding, a party’s later inconsistent
position introduces no risk of inconsistent court determinations, and thus poses little
threat to judicial integrity[.]” Id. at 767 (citations and punctuation omitted).
Here, the Joyners have not shown that the appellees successfully persuaded the
Fulton State Court to accept a particular position. Neither appellee Leaphart nor
appellee MPPG argued to the Fulton State Court that the Joyners’ Fulton County
lawsuits should be dismissed because the Joyners could proceed in Chatham County.
(Although co-defendant Memorial Health University Medical Center moved to
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dismiss or transfer for improper venue the lawsuit against it, the court never ruled on
that motion.) And, most importantly, the Fulton County court did not dismiss the
lawsuits; it took no action on them. Instead, the Joyners themselves voluntarily
dismissed their lawsuits. Because the appellees did not succeed in persuading the
Fulton County court to accept any particular position, judicial estoppel does not
apply.
5. Other grounds of estoppel.
The Joyners argue that Leaphart and MPPG are estopped by principles of
justice from asserting that their second voluntary dismissal was an adjudication on the
merits. We disagree.
First, the Joyners argue that Leaphart and MPPG persuaded the Chatham State
Court that the Fulton State Court dismissals were simply procedural prerequisites to
the grant of the consent order. This is not shown by the record. Nothing in the consent
order conditions the grant of the parties’ consent motion on the Joyners’ dismissal of
the Fulton State Court lawsuits.
Next, the Joyners argue that the appellees breached a promise that after the
dismissals were filed, the case would be adjudicated on the merits. The Joyners argue
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that the trial court erred by failing to correct the injustice caused by their reliance on
this promise.
The Joyners point to certain email correspondence in which the parties
discussed how best to get all the claims in front of the Chatham State Court. In one
of the emails, counsel for appellees suggested that the Joyners dismiss the actions
pending in Fulton State Court. The Joyners argue that they followed this suggestion,
and now the appellees cannot take the position that the Chatham State Court case
cannot proceed on the merits. The emails do not estop Leaphart and MPPG from
arguing that the second voluntary dismissal was an adjudication on the merits or from
invoking the legal effect of the two-dismissal rule.
“In order for an equitable estoppel to arise, there shall generally be some
intended deception in the conduct or declarations of the party to be estopped, or such
gross negligence as to amount to constructive fraud, by which another has been
misled to his or her injury.” OCGA § 24-14-29. And “[m]ere ignorance of the law on
the part of the party himself, where the facts are all known and there is no misplaced
confidence and no artifice, deception, or fraudulent practice is used by the other party
either to induce the mistake of law or to prevent its correction, shall not authorize the
intervention of equity.” OCGA § 23-2-27.
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Here, there is no indication that the appellees intended to deceive the Joyners.
And even if there were, our analysis would not change because their argument is
based on the premise that the appellees misrepresented the legal effect of dismissing
the Fulton State Court lawsuits. But “[t]here can be no estoppel by conduct where
both parties have equal knowledge or equal means of knowing the truth.” Collins v.
Grafton, 263 Ga. 441, 443 (2) (435 SE2d 37) (1993) (citations and punctuation
omitted). The Joyners had the means of determining the legal effect of their two
dismissals while “the appellees were under no duty to discover and inform” them of
that legal effect. Robbins v. Natl. Bank of Ga., 241 Ga. 538, 543 (2) (246 SE2d 660)
(1978). The law “is well settled that fraud cannot be predicated upon
misrepresentations of law or misrepresentations as to matters of law.” Id. It is also
“well settled that a simple mistake by a party . . . as to the legal result of an act which
he performs[] is no ground for either defensive or affirmative relief.” Id. at 544 (2)
(citation and punctuation omitted). See generally Dept. of Transp. v. Revco Discount
Drug Centers, 322 Ga. App. 873 (746 SE2d 631) (2013) (plaintiff who mistakenly
dismissed subsequent lawsuit with prejudice instead of without prejudice was barred
by res judicata from pursuing claims in earlier lawsuit although parties had agreed to
allow plaintiff to intervene in earlier lawsuit, and trial court had entered an order
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allowing plaintiff to intervene and directing plaintiff to dismiss its subsequent
lawsuit).
The Joyners had the means to determine themselves the effect of their
voluntary dismissals under OCGA § 9-11-41 (a) (3), so their argument that the
appellees’ suggestion estops the appellees from relying on the statute fails. Collins,
263 Ga. at 443 (2).
In any event, as a matter of law, the Joyners’ second voluntary dismissal
operated as an adjudication on the merits — whether or not Leaphart and MPPG filed
a motion to dismiss. OCGA § 9-11-41 (a) (3). In granting the appellees’ motion to
dismiss, “[t]he trial court did nothing more than reduce to writing the legal effect
accomplished by operation of law with the [second] voluntary dismissal.” Zohouri,
218 Ga. App. at 751 (5). And, as detailed above, the Joyners were unsuccessful in the
trial court and in this court in their attempt to set aside the voluntary dismissals. So
the Joyners have not shown that the Chatham State Court erred by granting the
appellees’ motion to dismiss.
Judgment affirmed. Markle and Colvin, JJ., concur.
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