ANDERSON v. LEWIS Et Al.
809 S.E.2d 260
| Ga. Ct. App. | 2017Background
- Teena Anderson sued Clarence Lewis (owner) and Dana Brown (driver) after a car collision; Anderson alleged derivative liability under the family purpose doctrine.
- The trial court initially granted partial summary judgment to Anderson on liability against Lewis on July 15, 2016; Lewis appealed but later withdrew the appeal.
- During the appeal period the trial court set aside and then modified the July 15 order (Sept. 12 and Sept. 14, 2016).
- Anderson never perfected service on Brown; the court dismissed Brown on Sept. 26, 2016 for failure to exercise due diligence in service.
- Citing O’Hara v. Gilmore, the trial court later granted summary judgment for Lewis because Brown had been dismissed; the court also stated Brown’s dismissal was without prejudice.
- On appeal, the Court of Appeals reversed: it held O’Hara was inconsistent with Supreme Court precedent and therefore overruled; and the July 15, 2016 partial summary judgment remained in effect because the trial court lacked jurisdiction to modify it while Lewis’s appeal was pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal of the driver for failure to perfect service bars a derivative claim against the car owner under the family purpose doctrine | Anderson: dismissal without adjudication on merits does not bar derivative claim; owner remains liable vicariously | Lewis: O’Hara controls and dismissal of the driver bars liability against owner | Court: Dismissal for insufficient service is not an adjudication on the merits; O’Hara is inconsistent with Supreme Court precedent and is overruled; owner not entitled to summary judgment on that ground |
| Whether the trial court’s Sept. 12 & 14, 2016 orders (setting aside/modifying July 15 order) were valid while Lewis’s appeal was pending | Anderson: orders entered during pending appeal were void; July 15 order remains in effect | Lewis: trial court could alter its prior judgment | Court: Notice of appeal divests trial court of jurisdiction; the July 15, 2016 partial summary judgment in favor of Anderson remained in effect |
Key Cases Cited
- Hedquist v. Merrill Lynch, 272 Ga. 209 (Sup. Ct. 2000) (dismissal not on merits unless actual determination of absence of negligence)
- O’Hara v. Gilmore, 310 Ga. App. 620 (Ga. Ct. App. 2011) (previously held dismissal of driver barred claim against parents under family purpose doctrine; overruled here)
- Wilson v. Ortiz, 232 Ga. App. 191 (Ga. Ct. App. 1998) (dismissal for insufficient service is not res judicata against vicariously liable master)
- McLeod v. Clements, 306 Ga. App. 355 (Ga. Ct. App. 2010) (notice of appeal divests trial court of jurisdiction to modify judgment)
- Phillips v. Dixon, 236 Ga. 271 (Ga. 1976) (family purpose doctrine origins and policy)
- Dashtpeyma v. Wade, 285 Ga. App. 361 (Ga. Ct. App. 2007) (owner liability under family purpose is vicarious)