Dillard Land Investments, LLC v. South Florida Investments, LLC
320 Ga. App. 209
| Ga. Ct. App. | 2013Background
- Appellants filed suit against Appellees over a foreclosure of real property and related claims.
- Trial court dismissed the action as barred by res judicata under OCGA § 9-12-40 due to two prior voluntary dismissals.
- First dismissal (May 3, 2011) was by Dillard Land in its action against 1615 Johnson Road; second (June 13, 2011) was Duck Point and Drury's voluntary dismissal of a counterclaim.
- At the time of the second dismissal, Dillard Land had not been made a party to the counterclaim.
- Duck Point and Drury sought to join Dillard Land as a plaintiff in the counterclaim, but the court had not ruled on joinder when the counterclaim was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second dismissal operated as adjudication on the merits | Duck Point/Drury contend second dismissal applies to merits. | Appellees contend second dismissal bars action under OCGA 9-11-41(a)(3). | Second dismissal did not operate as adjudication on the merits. |
| Whether Dillard Land’s absence from the counterclaim defeats res judicata | Dillard Land was not a party to the second dismissal. | Res judicata depends on the merits adjudication by the second dismissal. | Not determinative; second dismissal was not a merits adjudication against Dillard Land. |
| Whether OCGA § 9-12-40 precludes the instant action | Prior dismissals should bar the current action. | Because second dismissal was not an adjudication on the merits, res judicata does not apply. | OCGA § 9-12-40 does not preclude the instant action; reversal warranted. |
Key Cases Cited
- Rafizadeh v. KR Snellville, 280 Ga. App. 613 (2006) (prior adjudication on merits required for res judicata under OCGA 9-12-40)
- Troup v. Chambers, 280 Ga. App. 392 (2006) (second voluntary dismissal can adjudicate merits against plaintiff)
- Walker v. Mecca, 320 Ga. App. 142 (2013) (second voluntary dismissal may operate as adjudication on merits when appropriate)
- Shy v. Faniel, 292 Ga. App. 253 (2008) (dismissal timing and version of OCGA 9-11-41 affect preclusion outcome)
- Zohoury v. Zohouri, 218 Ga. App. 748 (1995) (improperly-filed third-party claim may be dismissed without voiding the action)
- Crowe v. Elder, 290 Ga. 686 (2012) (statutory construction of res judicata and related doctrines)