Janet Baker v. Atlantic States Insurance Company ( 2020 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, 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
March 10, 2020
In the Court of Appeals of Georgia
A19A2337. BAKER v. ATLANTIC STATES INSURANCE
COMPANY.
RICKMAN, Judge.
Janet Baker contends the trial court lacked jurisdiction to sanction her for
failure to comply with a discovery order. She argues that the court lost jurisdiction
when she voluntarily dismissed her case before the trial court’s decision on the
motion for sanctions. We disagree and affirm because the transcript shows that the
trial court announced its decision to grant reasonable attorney fees and costs at the
hearing — before Baker’s voluntary dismissal — and it therefore retained jurisdiction
to enter a written sanction award thereafter.
The record shows that Baker sued Patsy Clark for alleged injuries she received
in an automobile collision with Clark. In July 2018, during discovery, Clark’s
uninsured motorist carrier, Atlantic States Insurance Company, learned that Baker’s
surgeon was recommending an operation and that surgery had been scheduled for
November 6, 2018. The following day, Atlantic informed Baker that it was planning
on hiring an expert to rebut the surgeon’s recommendation. Atlantic later made clear
that it wanted to have an independent medical examination (“IME”) performed on
Baker in September or October and would request a second IME after the surgery as
well. Over the next two and a half months, Atlantic scheduled the IME with Baker
three times, but Baker cancelled each time, typically shortly before the arranged date.
Consequently, Atlantic moved to compel Baker to submit to an IME. A hearing
was held on the motion on November 7, and it was noted that the surgery had been
scheduled for the previous day. The trial court granted the motion the next day,
ordering the parties to schedule an independent medical examination within 40 days
of the order, i.e., by December 18. The parties agreed on a December 18 examination
date, but, without informing the court or Atlantic, Baker proceeded with surgery on
November 13 and therefore did not appear for the IME. In fact, Baker’s counsel did
not reveal the surgery until November 30, when it cancelled the jointly scheduled
December 18 examination.
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Atlantic moved for “spoliation, discovery misconduct and for associated
sanctions, including dismissal of plaintiff’s complaint, exclusion of evidence, and the
award of attorney’s fees and costs” under OCGA § 9-11-37 (b) (2). The trial court
held a hearing on the matter on February 19, 2019, and orally declined to dismiss the
action. But it announced that it was granting Atlantic attorney fees and costs for
Baker’s contempt of its prior order and ordered Atlantic to submit an affidavit of its
attorney fees and costs to give Baker an opportunity to respond to the amount. The
court also instructed the parties to return on March 25 to set yet another date for an
IME.
Three days after the hearing and before the court issued a written order, Baker
dismissed her complaint against Clark without prejudice. Atlantic, however,
submitted the requested attorney fee affidavit to the court, served Baker with a copy,
and submitted two amendments thereafter. On April 5, 2019 (nunc pro tunc to date
of the hearing) the trial court, citing OCGA § 9-11-37 (b) (2), entered an order
granting Clark’s motion for sanctions and ordered that Baker and her counsel pay
$5,798.79 and $5,798.80, respectively, to Atlantic. The court found that Baker was
stubbornly litigious in failing to attend the scheduled IMEs, in failing to disclose
major surgical procedures to the opposing party, and in failing to comply with its
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order compelling her cooperation in scheduling and attendance at an IME. We
granted Baker’s application to appeal.
Baker’s sole argument1 is that the trial court lacked subject-matter jurisdiction
to enter its order because she voluntarily dismissed her complaint before the court
ruled on the motion; this argument presents a question of law that we review de novo
for plain legal error. See Barnes v. Cannon, 347 Ga. App. 517, 518 (1) (820 SE2d
155) (2018); Harris v. Werner, 278 Ga. App. 166, 167 (628 SE2d 230) (2006).
Absent a pending counterclaim, a party may dismiss an action without
prejudice by filing a written notice of dismissal at any time before the first witness is
sworn. See OCGA § 9-11-41 (a) (1) (A) (2), (3). A dismissal “generally deprives the
trial court of jurisdiction to take further action in a case,” and “any subsequent order
is null and void because the trial court has lost jurisdiction over the case, which is no
longer pending before it.” Montgomery v. Morris, 322 Ga. App. 558, 560 (1) (745
SE2d 778) (2013). Similarly, “[a]fter [such a] dismissal, a court has no power to order
reinstatement of the action.” (Citations omitted.) Lotman v. Adamson Contracting,
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Baker does not challenge the amount of the award. See generally Colvin v.
Chrisley, 315 Ga. App. 486, 487 (2) (727 SE2d 232) (2012) (award of fees under OCGA
§ 9-11-37 upheld where it was within the range of the evidence). Nor does she contend that
she did not have an opportunity to respond to Atlantic’s attorney fee affidavit.
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219 Ga. App. 898, 898 (467 SE2d 224) (1996). See, e.g., C & S Indus. Supply Co. v
Proctor & Gamble Paper Products Co., 199 Ga. App. 197, 198 (404 SE2d 346)
(1991) (sanctions pursuant to OCGA § 9-11-37 a nullity when issued after voluntary
dismissal filed only minutes before a scheduled hearing on the motion for sanctions).
Compare Harris, 278 Ga. App. at 167 (rule does not apply to OCGA § 9-15-14
motions).
An important exception to this rule provides that “the plaintiff’s right to
dismiss can not be exercised after a verdict or a finding by the judge which is
equivalent thereto has been reached, if he has acquired actual knowledge of the
verdict or finding, whether the same has been published or not.” (Citation and
punctuation omitted.) Guillebeau v. Yeargin, 254 Ga. 490, 491 (1) (330 SE2d 585)
(1985); see also Lakes v. Marriott Corp., 264 Ga. 475, 476-477 (448 SE2d 203)
(1994); Lotman, 219 Ga. App. at 899. “[T]he oral announcement of a dispositive
ruling in open court, for example, ends the time for filing a unilateral voluntary
dismissal.” Dillard Land Investments, LLC v. Fulton County, 295 Ga. 515, 520 (2)
(b) (761 SE2d 282) (2014). The reason for this limitation is to prevent gamesmanship:
after a party has taken the chances of litigation and knows what is the
actual result reached in the suit by the tribunal which is to pass upon it,
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he can not, by exercising his right of voluntary dismissal, deprive the
opposite party of the victory thus gained. It is the knowledge of the
actual, not of the possible, result of a case which precludes the exercise
of the right of dismissal.
(Citation and punctuation omitted.) Lakes, supra, 264 Ga. at 477. The same reasoning
applies to a ruling on less than all claims in a case, see Groves v. Groves, 250 Ga.
459, 460 (1) (298 SE2d 506) (1983), a ruling for summary judgment, see Guillebeau,
254 Ga. at 491-492 (1), and rulings for partial summary judgment. See Moore v.
Moore, 253 Ga. 211, 212 (317 SE2d 529) (1984).
Although the exception to the rule of voluntary dismissal has not previously
been applied to a ruling on a motion for sanctions under OCGA § 9-11-37 (b) (2), we
find the exception applicable for these reasons. First, the trial court’s announcement
that it would be awarding sanctions was tantamount to a grant of partial summary
judgment, and, like a summary judgment ruling, a ruling on a motion for sanctions
is a judgment of the court. See Hunt v. Callahan, _ Ga. App. _ (2) (Case No.
A19A2153, decided Jan. 23, 2020) (“an award of OCGA § 9-11-37 attorney fees as
a discovery sanction is a ‘judgment’ for purposes of OCGA § 5-6-35 (a) (6)” —
requiring an application to appeal); Vaughn v. Cable East Point, 185 Ga. App. 203,
203 (363 SE2d 639) (1987) (same). In addition, the policy behind the exception is
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applicable in this setting. It would be unfair to allow a party to a suit to commit
discovery abuse, learn that they are going to be sanctioned, and avoid the sanctions
by entering a voluntary dismissal before the court enters the sanction award. Compare
C & S Indus., 199 Ga. App. at 197 (“no evidence that appellant had prior knowledge
that . . . a sanction [under OCGA § 9-11-37] would actually be imposed”).
Baker does not contest this law but instead argues that the trial court “merely
threatened” to rule in Atlantic States’ favor and that no actual outcome was
announced. See Groves, 250 Ga. at 459 (“It is knowledge of the actual, not of the
possible, result of a case which precludes the exercise of the right of dismissal.”)
(citation and punctuation omitted). We disagree. The trial court clearly stated that it
was granting attorney fees and costs to Atlantic; it then instructed Atlantic to submit
proof of its relevant fees. Specifically, after much colloquy about the various issues
raised in Atlantic’s motion for spoliation and discovery sanctions, the court in
conclusion stated, “Well, one reason I’m going to grant reasonable attorney’s fees and
costs, I do believe that it was a contempt of the Court’s order.” And after pointing out
some of Baker’s discovery failings and explaining what Baker should have done, the
court admonished, “now you know because you’re going to get assessed with costs.”
See Guillebeau, 254 Ga. at 491-492 (applying rule where the court indicated motion
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for summary judgment “likely would be granted”). Compare Mariner Health Care v.
PricewaterhouseCoopers, 282 Ga. App. 217, 221 (2) (638 SE2d 340) (2006) (no
evidence that party had prior knowledge that the sanction of dismissal with prejudice,
pursuant to OCGA § 9-11-37 (b), would actually be imposed when it filed its notice
of voluntary dismissal). Accordingly, the voluntary dismissal was without effect to
prohibit the court’s ruling on sanctions. See Dillard Land Investments, 295 Ga. at
519-522 (2) (b) (2014).
We therefore affirm the award by the trial court. See Kilby v. Keener, 249 Ga.
667, 668 (293 SE2d 318) (1982); see also OCGA § 9-11-37 (b) (2) (trial court
authorized to award as sanctions attorney fees and expenses for a party’s failure to
obey an order of the court); Roderiquez v. Saylor, 190 Ga. App. 742, 743-744 (1)
(380 SE2d 339) (1989) (court did not abuse its discretion in striking defensive
pleadings and entering default judgment against party who failed to comply with
order to submit to blood test).
Judgment affirmed. Miller, P. J., and Reese, J., concur.
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