GRESHAM v. HARRIS Et Al. , 329 Ga. App. 465 ( 2014 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, 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.
http://www.gaappeals.us/rules/
November 3, 2014
In the Court of Appeals of Georgia
A14A1047. GRESHAM v. HARRIS et al.
ANDREWS, Presiding Judge.
Norris Gresham appeals from the trial court’s grant of summary judgment to
Clifford Harris, Jr. a/k/a “TI,” Echo Studios, LLC, Grand Hustle, LLC, Grand Hustle
Management, LLC, and King of da South, Inc. (the “Harris Defendants”) based on
the expiration of the applicable statute of limitation. Gresham argues that the trial
court erred in granting the motion because his renewal action was timely filed. We
agree and reverse.
The issue on appeal involves the proper construction of the renewal statute,
OCGA § 9-2-61, and we apply a de novo standard of review. Hankla v. Postell, 293
Ga. 692, 693 (749 SE2d 726) (2013).
Gresham initially filed suit against the Harris Defendants and others on
November 8, 2010. He filed a voluntary dismissal without prejudice of that suit as to
all but one defendant on July 11, 2012. After the defendants moved to treat the
voluntary dismissal as a motion, the trial court granted the dismissal without
prejudice as to all defendants except one. That order was entered on August 12, 2012.
A final order and judgment as to the remaining defendant was entered on October 23,
2012.
On February 11, 2013, Gresham filed his renewal action, alleging that it was
substantially the same cause of action that had previously been voluntarily dismissed.
Gresham asserted causes of action for assault and battery, conspiracy to harm,
negligent failure to intervene, and punitive damages based on events that occurred on
September 8, 2010. The Harris Defendants answered and asserted the statute of
limitation as an affirmative defense. They then filed a motion for summary judgment
based on the expiration of the applicable statute of limitation. The trial court granted
the motion, dismissing all claims against the Harris Defendants.1
OCGA § 9-2-61 (a) provides that
1
After granting summary judgment to the Harris Defendants, the trial court
dismissed the action against the remaining defendants without prejudice because
those defendants had not been served with process.
2
[w]hen any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff discontinues
or dismisses the same, it may be recommenced in a court of this state or
in a federal court either within the original applicable period of
limitations or within six months after the discontinuance or dismissal,
whichever is later.
The renewal statute thus permits the renewal of an action outside the statute of
limitation if the renewal action is filed within six months after the discontinuance or
dismissal.2 Gresham contends that August 12, 2012, is the date that begins the six-
month period because that is when the trial court granted the voluntary dismissal. The
Harris Defendants contend that the proper starting date is July 11, 2012, when
Gresham filed his voluntary dismissal of less than all of the parties. If the latter date
is used, then Gresham’s renewal action is untimely.
OCGA § 9-11-41 (a) provides that an action may be dismissed without
prejudice by the plaintiff, without order or permission of court, by filing a written
notice of dismissal at any time before the first witness is sworn. A voluntary dismissal
of less than all of the parties, however, is governed by OCGA § 9-11-21, which
2
The parties do not dispute that the renewal action was filed outside the two-
year statute of limitation applicable to injuries to the person. See OCGA § 9-3-33;
Valades v. Uslu, 301 Ga. App. 885, 887-888 (1) (689 SE2d 338) (2009).
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provides that “[p]arties may be dropped or added by order of the court on motion of
any party or of its own initiative at any stage of the action and on such terms as are
just.” Thus, “[i]f a plaintiff attempts to voluntarily dismiss less than all the defendants
without obtaining leave of court, the dismissal is ineffective.” (Citations omitted.)
Kilgore v. Stewart, 307 Ga. App. 374, 375 (705 SE2d 209) (2010); Flemister v.
Hopko, 230 Ga. App. 93 (1) (495 SE2d 342) (1998). Based on this authority, it is
clear that Gresham’s filing of a voluntary dismissal would have been sufficient to
dismiss the first action if he had dismissed all of the defendants. Because he
dismissed less than all of the defendants, a court order was required. The court order
was not entered until August 12, 2012, which was the effective date of the dismissal
of the first action.
The Harris Defendants argued and the trial court agreed that even if the filing
of the voluntary dismissal by Gresham did not effectively dismiss the case, it did
constitute a “discontinuance” within the meaning of OCGA § 9-2-61 (a), thereby
beginning the running of the six-month period. To support its ruling, the trial court
relied on Morris v. Haren, 52 F3d 947 (11th Cir. 1995). In Morris, after the trial had
begun, the plaintiff announced that he intended to dismiss his case and, seven days
later, filed a written dismissal with the court. Id. at 948. The plaintiff then refiled his
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complaint under Georgia’s renewal statute, taking the position that the six-month
period began to run when the written dismissal was filed. Id. Construing OCGA § 9-
2-61 (a), the 11th Circuit determined that “discontinuance” and “dismissal” refer to
two different occurrences and that the plaintiff had discontinued his case within the
meaning of Georgia’s renewal statute when he announced his intention to dismiss the
case. Id. at 949. The trial court agreed with the 11th Circuit’s interpretation of the
statute and found that Gresham’s filing of the purported written dismissal was akin
to the verbal announcement in Morris and constituted a discontinuance that triggered
the running of the renewal period.
As an appellate court, we are not bound by decisions of other states or federal
courts except the United States Supreme Court. Davita, Inc. v. Othman, 270 Ga. App.
93, 95 (1) (606 SE2d 112) (2004). Federal authority is persuasive, but as a general
rule, “this Court adopts federal court authority only when it is not in conflict with our
own legal precedent and is consistent with our public policy goals.” Russell v.
Parkford Mgmt. Co., 235 Ga. App. 81, 82 (2) (508 SE2d 454) (1998). Although there
are no Georgia cases that have decided this exact issue, we decline to follow the 11th
Circuit’s reasoning in Morris and conclude that an event short of the termination of
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the plaintiff’s action against the relevant defendant or defendants cannot constitute
a discontinuance under the renewal statute.
“We begin our analysis of the statute by recognizing that fundamental rules of
statutory construction require us to construe a statute according to its terms, to give
words their plain and ordinary meaning, and to look diligently for the intention of the
General Assembly.” Atlanta Independent School System v. Atlanta Neighborhood
Charter School, 293 Ga. 629, 631 (748 SE2d 884) (2013). By definition, a dismissal
entails termination of an action. See Bryan A. Garner, ed., Black’s Law Dictionary
at 537 (9th ed. 2009) (defining dismissal as: “Termination of an action or claim
without further hearing, esp. before the trial of the issues involved.”). A
discontinuance likewise may be defined as a type of event that terminates an action.
See id. at 532 (defining discontinuance as: “The termination of a lawsuit by the
plaintiff; a voluntary dismissal or nonsuit.”); The American Heritage Dictionary of
the English Language at 531 (3d ed. 1992) (defining “discontinuance” as:
“Termination of an action by the plaintiff.”). In an early case construing a predecessor
to the renewal statute, however, the Georgia Supreme Court, referring to Blackstone
and other authorities, stated that “it would seem that a discontinuance is where the
plaintiff fails to follow up his case and leaves a chasm in the proceedings by his
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laches.” Rountree v. Key, 71 Ga. 214, 214-215 (1883). The Supreme Court further
explained that
a [plaintiff’s] failure to appear and prosecute, and thus follow up his
case, or continue to prosecute, would operate as a discontinuance by the
plaintiff’s action, and the court might order that it be discontinued at the
motion of the defendant, or do what is the same thing under our practice,
in effect and substance, dismiss the plaintiff’s suit for want of
prosecution.
Id. at 215. Thus, under Rountree, a discontinuance may result from a want of
prosecution sufficient to entitle the defendant to seek an order terminating the action.
See OCGA § 9-11-41 (b) (allowing defendant to move for dismissal for want of
prosecution). But even if a discontinuance under the renewal statute may refer to
some action taken by the plaintiff that does not of itself terminate the pending case,
such as the plaintiff’s failure to appear or prosecute, we conclude that the renewal
period does not begin to run until the case is actually terminated as a result of such
action.
Our conclusion has roots in the statute’s origin. As the Georgia Supreme Court
recounted in Clark v. Newsome, the renewal statute was first enacted in 1847 and
provided:
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Whenever any case now or hereafter pending in any of the courts of this
State, either at law or in equity, commenced within the time limited by
law, shall be discontinued, dismissed, or the plaintiff therein become
nonsuited, and the plaintiff’s claim may be barred during the pending
thereof by any law now in force in this State, the plaintiff may, at any
time within six months from such termination of the case, and not after,
renew or recommence the same, in any court having jurisdiction thereof
in this State.
(Emphasis supplied.) 180 Ga. 97, 99 (178 SE 386) (1935), citing Ga. L. 1847, p. 217.
The legislature passed a similarly-worded act in 1856, which referred to the right to
renew a suit “at any time within six months after such termination of the case.” Id.,citing Ga. L. 1855-56, p. 237, § 33. When Georgia’s laws were codified in the Code
of 1863, the language of the renewal statute was changed to provide: “If a plaintiff
shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence
within six months, such renewed case shall stand upon the same footing, as to
limitation, with the original case.” Id. The Supreme Court affirmed in Clark that
notwithstanding these changes, the right of renewal was not restricted to cases in
which an action was nonsuited or the plaintiff voluntarily dismissed or discontinued
it but rather continued to apply, as under the previous law, to an involuntary dismissal
other than on the merits. Id. at 101-102. Taking into account the remedial purpose of
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the renewal statute and the rule that the codification of Georgia’s laws should not be
understood to work a change in the law “unless the contrary manifestly appears from
the words employed,” the Supreme Court concluded in Clark that “the [renewal
statute contained] in the Code should be considered as a mere condensation of the
specific enactments . . . and that the original law is the criterion of the right of
renewal.” Id. at 102.
As the discussion in Clark reflects, the renewal statute, at its inception, made
it clear that the six-month renewal period was to be calculated from termination of the
plaintiff’s prior action. Also, as set forth in Clark, the codification of the original
renewal statutes was not intended to change the law. As such, the same rule as to
measuring the renewal period continued to apply following codification even if it was
no longer expressly stated. And although the renewal statute has been amended a
number of times, we discern no basis for concluding that the General Assembly
intended to change the law in this regard.
Our conclusion that a discontinuance under the renewal statute is not an event
prior to and distinct from the termination of an action finds further support in the
well-recognized principle that a remedial act like the renewal statute must be liberally
construed. See Parsons v. Capital Alliance Financial, LLC, 325 Ga. App. 884, 887
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(3) (756 SE2d 14) (2014). A valid renewal action may not be filed if the prior action
that the plaintiff wishes to renew is still pending, Kilgore, 307 Ga. App. at 375, and
the right of renewal would be restricted and compromised if an event short of
termination of the prior case could cause the six-month renewal period to begin
running. Finally, our construction of the renewal statute is consistent with our prior
decisions that, while not addressing the precise question raised here (i.e., the meaning
of “discontinuance”), have held that when a case is voluntarily dismissed against all
defendants, the renewal period begins to run when the dismissal is filed rather than
an earlier date when the intention to dismiss is verbally announced because OCGA
§ 9-11-41 (a) requires such filing to effectuate a voluntary dismissal. See Carter v.
Digby, 244 Ga. App. 217, 218 (535 SE2d 273) (2000); Swartzel v. Garner, 193 Ga.
App. 267 (387 SE2d 359) (1989).
Based on the foregoing, the relevant event in this case for determining when
the six-month period began is the entry of the trial court’s order granting the
voluntary dismissal without prejudice as to all but one of the defendants. To calculate
the deadline for Gresham’s renewal action, we apply OCGA § 1-3-1 (d) (3) and find
that the six-month period for filing his renewal action began on August 13, 2012, the
day after the trial court dismissed the original action, and ran until February 12, 2013.
10
See Parsons, 325 Ga. App. at 887 (3). As a result, Gresham’s refiling of the action
on February 11 was timely. See id. The trial court therefore erred in granting the
Harris Defendants’ motion for summary judgment.
Judgment reversed. McFadden and Ray, JJ., concur.
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