In this lеase dispute, Dr. Celio 0. Burrowes (Burrowes) and his professional corporation Celio Burrowes, M.D., PC. (Burrowes, PC.) appeal from the trial сourt’s dismissal of their complaint against Tenet Healthsystem GB, Inc. d/b/a Atlanta Medical Center (AMC) and Tenet Healthcare Corporation (Tenet), based on res judicata and lack of standing.
In the trial court’s order of September 19, 2011,
Burrowes had been a tenant of AMC since 1991, but a dispute arose during negotiations for a lease renewal around 2009. Fearing a possible eviction, Burrowes, PC. filed an action against Tenet d/b/a AMC on February 12, 2010, in the Superior Court of Fulton County (Case No. 2010CV181415) (the Prior Action), seeking declaratory
The parties engaged in extensive discovery in the Prior Action and, on July 14, 2011, AMC filed dispositive motions including a motion for summary judgment on its eviction counterclaim. The day before the scheduled hearing on these motions, to which Burrowes, P.C. filed no response, Burrowes, P.C. filed a voluntary dismissal which included its claims for affirmative relief based upon alleged violations of the “Stark Laws” and the CIA. Following the hearing on August 23, 2011, the trial court granted AMC’s motion for partial summary judgment and issued a writ of possession to be effective on or after September 12, 2011. This judgment was not appealed. Ajury trial was held on September 14 and 15, and the trial court issued its order and final judgment on September 19, 2011, in the Prior Action, granting AMC’s motion for directed verdict and awarding past due rent of $52,510.49. This judgment was not appealed.
The complaint in the instant actiоn, Fulton Superior Court Case No. 2011CV205657, was filed on September 13, 2011, by Burrowes and Burrowes, P.C. The trial court in the present action denied their request for an emergency order staying execution of the writ of possession.
The complaint here initially alleged only a single count (Burrowes and Burrowes, P.C. asserted that they were third-party beneficiaries of a breach of contract, i.e., the CIA), which was Count V of the amended complaint in the Prior Action. Tenet filed its answer and a motion to dismiss, arguing that the complaint was barred by res judicata and that the clаims were required to have been asserted in the Prior Action. In response, Burrowes and Burrowes, P.C. filed an Amended Complaint basically reasserting all of the claims made in the Prior Action.
“We review de novo the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only whеre a plaintiff would not be entitled to relief under any set of facts that could be proven in
1. Appellants’ first enumeration is that they were not required to assert their claims in the Prior Action and therefore the present complaint is not barred by res judicata.
Appellants argue that they could file a voluntary dismissal pursuant to OCGA § 9-11-41 (a) (1) in the Prior Action and then file a renewal suit without being subject to res judicata. That section provides that “fsfubject to the provisions of... any statute, an action may be dismissed by the plaintiff, without order or permission of [the] court: (A) By filing a written notice of dismissal at any time before the first witness is sworn[.]” (Emphasis supplied.)
OCGA § 9-11-13 (a), to which vоluntary dismissal is subject, provides, in pertinent part:
A pleading shall state as a counterclaim any claim which at the time of serving the plеading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject mаtter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . .
Because this statute uses “pleader,” “pleading,” and “opposing party,” instead of designating partiеs to litigation, it is clear that its mandate applies to claims and counterclaims.
As discussed in Robinson v. Stokes,
“A party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another seрarate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.” (Citation and punctuation omitted; emphasis in оriginal.) Trust Co. Bank of Northwest Ga. v. Shaw,
The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.... Three prerequisitеs must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) prеvious adjudication on the merits by a court of competent jurisdiction.
Waldroup v. Green County Hosp. Auth.,
All of these prerequisites were met here, and the trial court сorrectly granted the motion to dismiss.
2. Based on our holding in Division 1, we need not consider Appellants’ second enumeration.
Judgment affirmed.
Notes
We note that Appellants’ brief is not in compliance with Court of Appeals Rule 25 (a) (1), in that it contains no citations to the record in this case to assist us in our consideration of the merits of this appeal.
This order was not appealed and is final and binding on the parties. Hall v. Hall,
When interpreting a statute courts must give meaning and intent to all words, bearing in mind that “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull,