Lead Opinion
Dеvona Walker, the parent and guardian of Sherwood Burnett, and Tiyesha Burnett filed a personal injury action against Kyle Mecca, Gerald Mecca and Earl Sheppard III. Finding that the plaintiffs previously had dismissed two prior lawsuits arising from the same automobile accident, the trial court granted the Meccas’ motion to dismiss as to all three defendants on the ground that the action was barred by OCGA § 9-11-41 (a) (3). The plaintiffs appeal, arguing that OCGA § 9-11-41 (a) (3) does not bar the action beсause the dismissed lawsuits involved different defendants. But there is no such limit on the scope of OCGA § 9-11-41 (a) (3). It applies when an action seeking recovery on the samе claim was brought and dismissed twice, regardless of the parties named as defendants. We therefore affirm.
“The facts relevant to this appeal are undisрuted, and our review is de novo.” (Citation omitted.) Controlled Blasting v. Viars,
The Meccas moved to dismiss the complaint, arguing that under OCGA § 9-11-41 (a) (3) two previous voluntary dismissals of the personal injury action operate as аn adjudication on the merits as to them even though they were not defendants in both previous dismissals of the action. The trial court granted the motion, holding that it applies to all defendants, and the plaintiffs appeal.
Under OCGA § 9-11-41 (a) (3), a voluntary dismissal “is without prejudice, except that the filing of a second notice of dismissаl operates as an adjudication upon the merits.” As the trial court correctly held, this case is controlled by Belco Electric v. Bush,
[ujnder the plain language of OCGA § 9-11-41 (a), an adjudication on the merits is based not on a requirement that thе same defendant was three times dismissed, but because an action seeking recovery on the same claim was brought and voluntarily dismissed three previous times. Thus, the statute is designed to prevent a plaintiff from repeatedly filing actions for the same claim against any defendant, not only previously named defendants.
Id.
In this case, “[although various defendants were named in the suits, the present action, and all of the previous actions brought and voluntarily dismissed by [the plaintiffs], sought recоvery on the same claim,” Belco,
The plaintiffs contend that they may proceed under the authority оf Hedquist v. Merrill Lynch, Pierce, Fenner & Smith,
The plaintiffs’ two previous voluntary dismissals of the personal injury action opеrated
Judgment affirmed.
Concurrence Opinion
concurring fully and specially.
I cоncur fully with the majority opinion, which holds that the “two dismissal” rule set forth in OCGA § 9-11-41 (a) (3) must be applied when an action seeking recovery on the same claim is brought and dismissed twice, irrespective of the parties named as defendants. While this case is controlled by Belco Electric v. Bush,
As an initial matter, the language of OCGA § 9-11-41 (a) (3), when construed together with subsection (d) of the same statute, dictates that the “two dismissal” rule be applied even if the defendant is not the same in both suits. Specifically, OCGA § 9-11-41 (a) (3) provides: “A dismissal under this subsection is without prejudice, except that the filing of a second nоtice of dismissal operates as an adjudication upon the merits.” In contrast, OCGA § 9-11-41 (d), a subsection of the same statute regarding costs, provides: “If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the аction previously dismissed.” (Emphasis supplied.) “Where, as here, the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” (Citation and punctuation omitted.) Berryhill v. Ga. Community Support &c.,
While the result of this case is dictated by the language of OCGA § 9-11-41 (a) (3) and the canons of statutory construction, there are important reasons why the General Assembly should amend OCGA § 9-11-41 (a) (3) to limit its application to cases where the defendant is the same or substantially the same. First, OCGA § 9-11-41 (a) (3) should be amended because applying the “two dismissal” rule to unrelated defendants is inconsistent with the public policy behind the rule. As we have explained, the commonly understood public policy behind having a “two dismissal” rule is “[t]o prеvent the unscrupulous plaintiff from harassing a defendant by repeatedly filing the same complaint.” Harris v. Sampson,
a general holding that the “two dismissal” rule applies even when the suits are not against the same defendant seems unsound. If two dеfendants are unrelated, it is difficult to see how one defendant can be so harassed by a single dismissal against [him] that the dismissal should be with prejudice merely because an earlier action on the same claim against the other defendant was dismissed.
9 Charles Alan Wright et al., Federal Practice and Procedure § 2368 (3d ed. 2012). Consistent with the public policy behind the rule, many courts have held that the “two dismissal” rule should not be applied to unrelated defendants. See, e.g., Lake at Las Vеgas Investors Group v. Pacific Malibu Dev. Corp., 933 F2d 724, 728 (9th Cir. 1991); Fernandez v. Estate of Gatti, No. 10-62269-CIV,
2006); Falkenstein v. Braufman,
Second, OCGA § 9-11-41 (a) (3) should be amended because application of the “two dismissal” rule to unrelated defendants is inсonsistent with application of the renewal statute, OCGA § 9-2-61. We have construed the renewal statute as requiring that the first suit dismissed by the plaintiff and the second-filed suit must involvе the same or “substantially identical” defendants for the privilege of renewal to be exercised. See, e.g., Gish v. Thomas,
As we have emphasized, “this Court has authority only to interpret statutes, not to rewrite them.” Morrison v. Claborn,