HOWELL Et Al. v. BEAULY, LLC ( 2016 )

THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, 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
July 12, 2016
In the Court of Appeals of Georgia
A16A0327. HOWELL et al. v. BEAULY, LLC.
MCFADDEN, Judge.
This appeal arises from an order dismissing an action that had been transferred
to the superior court from magistrate court. The dismissal was based on a purported
violation, in the magistrate court proceedings, of the Georgia Civil Practice Act. But
because the Civil Practice Act does not apply to magistrate court proceedings, we
reverse.
On September 11, 2014, Beauly LLC filed a dispossessory action against
Annette Howell and others in the magistrate court of DeKalb County. On September
22, 2014, Howell and others (hereinafter, collectively “Howell”) filed an answer and
counterclaim, seeking to quiet title and requesting damages in excess of $2 million
for claims of, among other things, fraud, trespass, and unjust enrichment. The
counterclaim also sought punitive damages of more than $6 million. On September
22, Howell also filed a motion seeking to dismiss the dispossessory action and to
transfer the case to superior court pursuant to OCGA § 15-10-45 (d), which provides
that if the amount of a counterclaim exceeds the jurisdictional limits of magistrate
court, the case should be transferred to a court with jurisdiction over the counterclaim
amount. The magistrate court notified the parties that the case was set for trial on
September 29, 2014.
On September 25, 2014, Beauly’s attorney filed a voluntary dismissal of its
dispossessory action. On September 29, 2014, the original trial date, the magistrate
court issued another notice of “trial/hearing” for October 8, 2014. That written notice
bears what appear to be the signatures of Howell and another defendant, as well as
the signature of Beauly’s attorney. On October 8, the the magistrate court issued an
order stating that the hearing had been held and transferring the case to superior court.
On October 29, 2014, the case was docketed in superior court. On January 27,
2015, Howell served discovery requests on Beauly. Beauly filed responses and
objections to the discovery requests on March 2, 2015. On June 23, 2015, Beauly
filed a brief in support of a motion for summary judgment and also moved to reinstate
its dispossessory action. In that brief, Beauly acknowledged that during the magistrate
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court hearing, Howell had moved to have the counterclaim transferred to the superior
court and that the magistrate court had granted that transfer motion. On August 3,
2015, the superior court dismissed Howell’s action, finding that Howell had failed to
object to Beauly’s voluntary dismissal of its dispossessory action in magistrate court
on September 25, and therefore, Beauly’s voluntary dismissal also resulted in the
dismissal of Howell’s counterclaim pursuant to OCGA § 9-11-41. Howell appeals.
1. OCGA § 9-11-41.
Howell asserts that the trial court erred in dismissing the counterclaim based
on an alleged violation of the requirements of OCGA § 9-11-41. We agree.
As part of the Georgia Civil Practice Act,
OCGA § 9-11-41 (a) (1) provides that a plaintiff may voluntarily
dismiss his case without order or permission of the court by filing (1) a
written notice of dismissal at any time before the first witness is sworn
or (2) a stipulation of dismissal signed by all parties who have appeared
in the action. . . . Furthermore, if a counterclaim has been pleaded by a
defendant prior to the service upon him or her of the plaintiff’s motion
to dismiss, the action shall not be dismissed against the defendant’s
objection unless the counterclaim can remain pending for independent
adjudication by the court. Thus, although a plaintiff may voluntarily
dismiss his complaint, when a defendant has filed a counterclaim or
defensive pleadings seeking affirmative or other relief, dismissal of a
plaintiff’s complaint requires more scrutiny. Merely filing a
counterclaim is insufficient to prevent the dismissal of the plaintiff’s
complaint and the counterclaim. Instead, a defendant must object to the
plaintiff’s voluntary dismissal, thereby providing notice to the plaintiff
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that he intends to pursue his counterclaim. A defendant’s failure to
object to the plaintiff’s dismissal will result in the dismissal of both the
plaintiff’s complaint and the defendant’s counterclaim.
Reed v. Reed, 295 Ga. 574, 575-576 (1) (761 SE2d 326) (2014) (citations and
punctuation omitted). See also Mize v. First Citizens Bank & Trust Co., 297 Ga. App.
6, 7-8 (676 SE2d 402) (2009) (defendant must object to plaintiff’s voluntary
dismissal, pursuant to OCGA § 9-11-41, to preserve a counterclaim capable of
independent adjudication and to provide plaintiff with notice that it intends to pursue
the counterclaim).
Relying on these provisions of OCGA § 9-11-41, the trial court found that
Howell had failed to make the required objection to Beauly’s voluntary dismissal of
its magistrate court dispossessory action on September 25, 2014, and that such failure
resulted in the dismissal of Howell’s counterclaim to that action. However, the Civil
Practice Act does not apply to magistrate court proceedings. Target Nat. Bank v.
Luffman, 324 Ga. App. 442, 444 (750 SE2d 750) (2013). Except for circumstances
not found in this case, “proceedings in the magistrate court shall not be subject to
Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’” OCGA § 15-10-42. Rather,
OCGA § 15-10-40 expressly provides: “This article shall govern proceedings in the
magistrate court.” (Emphasis supplied.) Nevertheless, even though magistrate courts
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have their own procedural codes and are not required to follow the provisions of the
Civil Practice Act, they are permitted to choose to follow that Act “or any other
appropriate rules and regulations relating to pleading, practice, and procedure, where
to do so would ‘administer justice’ under OCGA § 15-10-44.” Howe v. Roberts, 259
Ga. 617, 619 (1) (385 SE2d 276) (1989).
In the instant case, however, there is nothing in the record to indicate that the
magistrate court opted to follow the Civil Practice Act. On the contrary, it appears
from the record that the magistrate court proceedings were conducted pursuant to the
statutory articles governing magistrate courts. Amongst other things, Howell filed the
counterclaim to Beauly’s action as authorized by OCGA § 15-10-45; Beauly filed a
voluntary dismissal of its action in accord with OCGA § 15-10-41 (b) (2); Howell
moved to transfer the counterclaim to superior court pursuant to OCGA § 15-10-
45 (d); and the trial court granted that motion, apparently because, as indicated in
Howell’s transfer motion, the amount of the counterclaim exceeded the $15,000
jurisdictional limit of the magistrate court. See OCGA §§ 15-10-2 (5) & 15-10-45 (d);
see also Jones v. Equip. King Intl., 287 Ga. App. 867 (652 SE2d 811) (2007) (case
transferred to superior court because counterclaim beyond magistrate court’s
jurisdiction). Under these circumstances, “the superior court [was] not authorized to
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retroactively apply the provisions of the Civil Practice Act to the supposed actions of
the magistrate court, when no evidence appears in the record to show that the Act was
relied on by the magistrate in any respect.” Target Nat. Bank, supra (emphasis,
citation, and footnote omitted). Accordingly, the superior court erred in finding that
under the Civil Practice Act, in particular OCGA § 9-11-41, the counterclaim stood
dismissed.
Moreover, even if the Civil Practice Act could be applied to the proceedings
in this case, the trial court’s analysis was flawed. “[A] defendant may sometimes
preserve his counterclaim through actions short of a formal objection to a voluntary
dismissal of the main claim.” Reed, supra at 576 (citation omitted). Here, the trial
court found that Howell had not so preserved the counterclaim because Howell had
not taken any action on the counterclaim until four months after the voluntary
dismissal, when the first discovery requests were served in January 2015. But that
finding is incorrect. The record shows that prior to the voluntary dismissal, Howell
had moved to transfer the counterclaim to superior court; that shortly after the
dismissal, Howell continued to pursue the motion to transfer the counterclaim; that
a magistrate court hearing on that transfer motion was held approximately two weeks
after the voluntary dismissal; that the magistrate court granted the transfer motion at
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that hearing; and that approximately a month after the voluntary dismissal of the main
claim, the transferred counterclaim was docketed in the superior court. Therefore,
Howell “clearly put [Beauly] on notice that [the defendants] intended to pursue [their]
counterclaim and did not consent to or acquiesce in having [the] counterclaim
dismissed. Our finding comports with our instruction that the counterclaim limitation
on voluntary dismissal should be liberally construed so as to do substantial justice.”
Reed, supra (citations and punctuation omitted).
For the foregoing reasons, the trial court erred in dismissing Howell’s superior
court action. Accordingly, we reverse.
2. Additional enumeration of error.
In a separate enumeration, Howell contends that the trial court erred in denying
her motion to dismiss Beauly’s claim with prejudice. Pretermitting the fact that the
case transferred to the superior court was Howell’s counterclaim, not Beauly’s
previously dismissed main claim, is the fact that the trial court made no such ruling.
The superior court’s final order dismissed Howell’s transferred action, but did not
deny any motion by Howell. This is a “court[] for the correction of errors of law made
by the trial courts[,] and an error of law has as its basis a specific ruling made by the
trial court.” Campbell v Alion, ___ Ga. App. ___, n. 3 (Case No. A16A0239, decided
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June 8, 2016) (citation and punctuation omitted). In the absence of such a specific
ruling, there is nothing for us to review. See Post Realty Assoc. v. DSL Assoc., 228
Ga. App. 678, 681 (2) (492 SE2d 600) (1997) (as a court for correction of errors
below, absent a ruling by the trial court, this court has nothing to review).
Judgment reversed. Miller, P. J., and McMillian, J., concur.
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