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.
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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 defendants that the plaintiffs’ dismissal with prejudice of all the defendants after sеttling with some of them was an adjudication on the merits in favor of the non-settling dismissed defendants which barred their former co-defendants’ suit against them for contribution. In
Fowler,
this Court determined that res judicata barred Vineyard, who had voluntarily dismissed with prejudice a cross-claim for contribution and indemnification in an earlier suit, from subsequently bringing suit against the cross-claim defendants for damages resulting from the personal injuries sustained as a result of the undеrlying tort. The factual scenarios of
Fowler
and
Marchman
make it clear that a voluntary dismissal with prejudice constitutes a final disposition of the underlying action only as far as the parties involved in the voluntary dismissal are concerned: Vineyard could not sue the person he had voluntarily dismissed, and Nelson could not use his voluntary dismissal from the plaintiff’s tort action to terminate the action for contribution brought against him by his former co-defendants. As far as the parties involved in the voluntary dismissal with prejudice are concerned, the dismissal constitutes a final disposition of the action
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so dismissed, and res judicata will bar any attempt by one party to. the dismissаl to litigate the dismissed claim against the dismissed party under another guise. See, e.g.,
Fowler v. Vineyard,
supra;
Majestic Homes v. Sierra Dev. Corp.,
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 equivаlent, that dismissal will have a res judicata effect on the plaintiff’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 becаuse the underlying claims against the employee were barred 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
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employеe asserted the affirmative defense of 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 that the renewal action untimely filed against the employee should be considered dismissed by оperation of law. However, while a trial court is authorized to dismiss the complaint for failure to state a claim when a lawsuit is filed after the expiration of the statute of limitation
(Drohan v. Carriage Carpet Mills,
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 prеjudice in April 1995; had dismissed their claims against Merrill Lynch 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....”