In October 1994, appellants John H. Hedquist, Jr., Marianne Hedquist, and John H. Hedquist III, the latter both individually and as the trustee for a profit sharing plan and trust, filed suit against appellee Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”), a Merrill Lynch emрloyee, and several other individuals, seeking damages allegedly resulting from actions purportedly taken by the defendants in December 1990. In December 1996, the Hedquists dismissed with prejudice their complaint against the Mеrrill Lynch employee.
1
The dismissal with prejudice stated specifically that it did not apply to any of the other named defendants. A year later, the trial court entered an order dismissing the claims against Merrill Lynch, finding thаt the Hedquists had failed to state a claim upon which relief could be granted since the claims against Merrill Lynch were predicated on the purported acts of the Merrill Lynch employee whom the plaintiffs had voluntarily dismissed with prejudice from the case. Relying on its decision in
Harris v. Hanna Creative Enterprises,
1. “[W]here the liability of the [employer] to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the [employee] and against the third рerson is res judicata in favor of the [employer] in a suit by such third person. . . .”
Gilmer v. Porterfield,
[a]n adjudication of nonliability ... is not necessarily a definitive adjudication on the issue of negligence; it does not preclude a finding that the [dismissed party was] negligent. Conclusive establishment of the [employer’s] liability, however, necessarily depends upon a definitive adjudication of the absence of negligence, and not merely liability, on the part of the [employee]. Absent such a definitive adjudication the [employer] is not entitled to summary judgment. The fact issue regarding the negligence of the [employeе] remains to be litigated and adjudicated.
See also
Wilson v. Ortiz,
At odds with the aforementioned principles is our holding in
Dept. of Human Resources v. Poss,
2. In the case at bar and in
Hosp. Auth. of Calhoun County v. Walker, 224
Ga. App. 163 (2) (
In
Fowler,
this Court ruled that a voluntary dismissal with prejudice “operates as an adjudication on the merits of the claim and bars the right to bring another action on the same claim. See
Rowland v. Vickers,
[supra];
Marchman & Sons v. Nelson,
[supra].” In
Marchman,
this Court had held that a voluntary dismissal with prejudice “is not, in truth, a determination of the issues in the case [but] merely functions as, or operates as, an adjudication of those issues [since] [i]t is a final disposition [; i]t bars thе right to bring another action on the same claim or cause.” In so holding, the
Marchman
Court rejected the contention of some of the dismissed
We recognize that there are, however, situations in which a voluntary dismissal with prejudice of a suit against an employee does affect the suit against the vicariously liable employer. Where a dismissal with prejudice of an employee is statutorily described as an adjudication on the merits or its equivalent, that dismissal will have a res judicata effect on the рlaintiff’s case against the vicariously liable employer. See, e.g.,
Hosp. Auth. of Calhoun County v. Walker,
supra,
3. Appellee Merrill Lynch asserts that the judgment entered by the trial court and affirmed by the Court of Appeals should be affirmed by this Court because the underlying claims against the employee were bаrred as a matter of law under our renewal statute, OCGA § 9-2-61 (a). Merrill Lynch maintains that appellants’ October 1996 renewal action against Merrill Lynch and its employee, while filed within six months of appellants’ April 1996 voluntary dismissal without prejudice of Merrill Lynch, was not filed within six months of appellants’ April 1995 voluntary dismissal without prejudice of the employee. See OCGA § 9-2-61 (a).
3
Both Merrill Lynch and its
employee asserted the affirmative defense оf the expiration of the statute of limitation in their answers to the Hedquists’ renewed complaint; however, the renewal action against the employee was voluntarily dismissed with prejudice before the trial court ruled on the affirmative defense. In essence, Merrill Lynch contends
Judgment reversed.
Notes
Before dismissing the claim against the employee with prejudice in December 1996, the Hedquists had dismissed their claims against the employee without prejudice in April 1995; had dismissed their claims against Merrill Lynсh without prejudice in April 1996; and had re-filed their complaint against the employee and Merrill Lynch in October 1996.
Harris v. Hanna Creative Enterprises
was overruled in part in this Court’s decision in
Miller v. Grand Union Co.,
OCGA § 9-2-61 (a) states: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later....”