*1 197 15, Kopp, Peavy Peavy, Conner, J. Edwin Terry appellees. Dillard, Bower, Jr., A. H. COMPANY,
A90A2354.C & S INDUSTRIAL SUPPLY INC. v. PROCTOR & GAMBLE PAPER PRODUCTS COMPANY. (404 346) SE2d Carley, bringing appellee-defendant, against appellant-plaintiff After suit comply requests production failed certain of documents. appellee’s motion, Pursuant to pelling pellant the trial court entered order com- production appellant’s requested ap- of the documents. When appellee order, failed to with this filed a motion for Only hearing sanctions. on pursuant minutes before the had that been scheduled appellee’s appellant motion, filed a notice of (a) appellee copy to OCGA 9-11-41 and served with a subsequently However, thereof. tice the trial court struck no- appellant’s complaint of dismissal and dismissed (2) assessed fees as sanctions under OCGA 9-11-37 (C). appellant brings It fromis this order of the trial court that this appeal. (a) plaintiff voluntarily may Pursuant to OCGA 9-11-41 dis- permission action, court, miss his without order or of the trial “ ‘ by
time before he rests his case. “the announcement judge case, trial decision will terminate a civil formally writing entered, has decision not been reduced will preclude filing dismissal after the announcement judgment actually by judge. but before the is [”] entered the trial ‘ knowledge possible, [Cit.]’ [Cit.] actual, “It is of the not of the result ’ precludes a case which exercise of dismissal.” (1) (362 469) App. [Cit.]” Johnson v. 676 SE2d (1987). Although the termination of dismissal of complaint obviously possible impending hearing its result of appellee’s appellant sanctions, on motion there is no evidence that actually imposed. knowledge lhad that such be a sanction would exception There is no “bad faith” volunta | rily lative intent behind the enactment of OCGA 9-11-41 was to af (a). legis “[T]he dismiss his action OCGA 9-11-41 plaintiff, contrary with a or other untenable faced ford litigate despite his a second chance to suit inconve iposition, part.) (Emphasis supplied in and irritation to the defendant.” nience Griggs Bank &c. 743 Columbus 198
347) County, (1988). Hosp. Pounds v. Auth. Gwinnett See also (2) (1990). App. 598, Ga. complaint, voluntarily dismissed its there After appellee’s nothing pending in the court but motion trial (b). Compare Co. v. 576) (1989). appellee If wished *2 upon appellant’s fees asserted of dis- to secure based abuse covery procedures, § it moved to OCGA could have 9-15-14. voluntary the notice of dismissal valid and any subsequent striking imposing notice and trial court’s order nullity § 9-11-37 was a and must be OCGA supra. v. reversed. Johnson
Judgment McMurray, Birdsong, J., Banke, J.,P. P. P. reversed. Beasley Sognier, Cooper, Pope, JJ., J., J., and C. and An- concur. part part. J., in drews, concur in and dissent concurring part part. Judge, dissenting in in and Sognier, given language agree majority that, I with the the broad of OCGA (a), voluntary § 9-11-41 I con- dismissal was authorized. impose empowered however, clude, that the trial court was sanc- (b) (2) (other dismissal) appel- tions OCGA under 9-11-37 than prior granting lant’s failure to order motion to compel. (b) (2) provides pertinent part “[i]n in lieu awarding thereto, [orders sanctions], in other or addition the I dis-, party failing obey require [compelling the order court shall covery] the pay expenses, including attorney’s fees, the
... reasonable (Emphasis supplied.) failure.” caused 576) (1989), Co. v. 21-23 this court! (b) (2) question addressed the whether a motion for OCGA 9-11-37 [ voluntary in in which sanctions survived fendant had dismissal an action the de-! litigation. Applying filed a the! counterclaim abusive Supreme Center, v. Court’s decision in Moore Memorial Med. 204) (1988), we concluded that because the abusivel litigation pending counterclaim remained after the dismis-| discovery jurisdiction sal, the trial court retained to enter sanctions. [ analysis applicable equally in Moore is circumstances! Supreme in lowing litigation Court in Moore the instant case. The reasoned that al-l and the of an both a continuation abusive| “preserves right plaintiff counterclaim to dismiss litigation.” and the to recover for defendant abuse (Foot-| omitted.) recognized note Moore that even Id. 696-697. re-| dismissed, was entitled to the defendant nonetheless prior 697. cover for abuses that occurred to dismissal. Id. at Since the (b) (2) expenses attorney 9-11-37 and fees sanctions OCGA are¡ (absent mandatory exceptions) certain limited and are intended to compensate party moving expenses previously incurred ob compliance taining discovery, compelling allowing with a court order plaintiff by voluntarily dismissing avoid such sanctions the com (b) (2). plaint would thwart the of OCGA 9-11-37 Accord Ins. Nationwide (1987) (once imposition motion for sanctions has been their filed precluded by response discovery request). cannot be Nothing a belated to the compels generally in OCGA 9-11-41 such a result. See supra expenses Moore, Thus, at 696. I conclude the of a defendant to attorney recover fees for a violation of a dis covery order entered ato dismissal survives the dis accordingly, attorney missal, I would affirm the award of fees in this case. Judge joins
I am authorized to state that Andrews this dissent. King King, Associates, Jr., C. B. Chevene B. Spence, Stephenson, Watson, Chambless, Lowe & John M.
appellee.
A90A2358. HARRISON v. ELLIS.
Sognier, passenger Shannon Harrison was in a Pontiac Grand Am in- volved in an accident with a Buick LeSabre Ellis. driven Wanda brought damages injuries Suit was to recover Harrison incurred. jury Ellis, returned its favor and the trial court de- appeal nied Harrison’s motion for a new trial. This ensued. error, her sole enumeration of contends the trial by giving appellee’s requested charge
court erred based on OCGA regarding passing transcript 40-6-46, no zones. The reveals that at Road, the time the accident issue occurred on Austell that road consisted two traffic turn lanes and a center lane. A K-Mart store Kentucky road; was on the east side of the Fried Chicken and sev- Appellee eral other fast food restaurants were on the west side. waiting parking in the exit to the lot mak- K-Mart for the ing a left turn southbound onto Austell Road. The evidence is uncon- up Itroverted that northbound traffic backed on Austell Road had light, pickup open gap left for K-Mart traffic but truck had prom customers Appellee parking the northbound exit the lot. crossed