DARLING v. McLAUGHLIN

In the Supreme Court of Georgia
Decided: May 23, 2016
S16A0071. DARLING v. MCLAUGHLIN.
MELTON, Justice.
On May 11, 2011, Thomas Darling pled guilty to felony murder for
having failed to promptly seek medical treatment for a minor child, and was
sentenced to life in prison. In November 2013, Darling filed a pro se petition for
habeas corpus relief challenging the voluntariness of his plea. At an evidentiary
hearing held on August 27, 2014,1 Darling’s plea counsel, among other
witnesses, testified. The habeas court granted the parties 60 days to file post-
hearing briefs, and on October 20, 2014, Terry J. Marlowe entered an
appearance as counsel for Darling. On November 3, 2014, Marlowe filed on
Darling’s behalf a motion to dismiss Darling’s pro se petition without prejudice,
pursuant to OCGA § 9-11-41 (a) (2) (“Except as provided in paragraph (1) of
this subsection, an action shall not be dismissed upon the plaintiff's motion
Due to scrivener’s error, the face of the transcript states that the date
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was August 26, 2014.
except upon order of the court and upon the terms and conditions as the court
deems proper”). In the motion, Marlowe claimed that testimony at the
evidentiary hearing revealed that plea counsel coerced Darling’s plea by
misrepresenting the date at which Darling would become parole eligible. In
response to this motion, the Warden relied on OCGA § 9-11-41 (a) (1), which
allows a plaintiff to voluntarily dismiss his or her case “[b]y filing a written
notice of dismissal at any time before the first witness is sworn; or . . . [b]y filing
a stipulation of dismissal signed by all parties who have appeared in the action.”
Relying solely on OCGA § 9-11-41(a) (1) in its order, the habeas court denied
Darling’s motion, finding that witnesses had been sworn and had provided
testimony at the evidentiary hearing, and that the Warden had not agreed to
dismissal.
This Court granted Darling’s application for a Certificate of Probable
Cause to appeal to determine whether the habeas court abused its discretion by
relying on OCGA § 9-11-41(a) (1) to deny Darling’s motion to dismiss when
the motion to dismiss was made pursuant to OCGA § 9-11-41(a) (2). For the
reasons that follow, we must vacate the habeas court’s order and remand this
case to the habeas court for consideration of Darling’s motion to dismiss
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pursuant to the terms of OCGA § 9-11-41 (a) (2).
By its plain terms, OCGA § 9-11-41 provides three distinct methods by
which a plaintiff may voluntarily dismiss his or her case without prejudice. The
first two methods are provided in OCGA § 9-11-41 (a) (1), which states:
Subject to the provisions of subsection (e) of Code Section 9-11-23
[dismissal of class actions], Code Section 9-11-66 [dismissals in
actions where a receiver has been appointed], and any statute, an
action may be dismissed by the plaintiff, without order or
permission of court: (A) By filing a written notice of dismissal at
any time before the first witness is sworn; or (B) By filing a
stipulation of dismissal signed by all parties who have appeared in
the action.
However subsection (a) (1) does not provide the only means by which an action
may be voluntarily dismissed under OCGA § 9-11-41. A third method is
provided in subsection (a) (2) of the statute:
Except as provided in paragraph (1) of this subsection, an action
shall not be dismissed upon the plaintiff's motion except upon order
of the court and upon the terms and conditions as the court deems
proper. 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.
Reading these two provisions together, where, as here, the case does not involve
a class action, an appointed receiver, another statute that provides otherwise, or
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a counterclaim pleaded by a defendant prior to that defendant being served with
the plaintiff’s motion to dismiss, a plaintiff may voluntarily dismiss his or her
case without prejudice (1) by filing a notice of dismissal at any time before the
first witness is sworn; (2) by stipulation of the parties; or, when the first two
methods are unavailable, (3) “upon order of the court and upon the terms and
conditions as the court deems proper.” See OCGA §§ 9-11-41 (a) (1) and (a) (2).
In the instant case, because witnesses had already been sworn at the
hearing on Darling’s pro se petition for habeas corpus relief, and because the
parties had not stipulated to the voluntary dismissal of Darling’s case, the means
of voluntary dismissal described in OCGA § 9-11-41 (a) (1) were unavailable
to him. However, this did not foreclose Darling from seeking to voluntarily
dismiss his petition pursuant to the terms of OCGA § 9-11-41 (a) (2), which is
exactly what he did. Because the habeas court only considered the factors
outlined in OCGA § 9-11-41 (a) (1) to determine whether Darling’s voluntary
dismissal was proper, however, it did not analyze whether voluntary dismissal
might otherwise be available “upon order of the court and upon the terms and
conditions as the court deems proper” pursuant to OCGA § 9-11-41 (a) (2).
Accordingly, we must vacate the habeas court’s order denying Darling’s motion
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to voluntarily dismiss his case and remand this case to the habeas court for a
proper consideration of the motion under the terms of OCGA § 9-11-41 (a) (2).
Judgment vacated and case remanded with direction. All the Justices
concur.
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