C & S Industrial Supply Co. v. Proctor & Gamble Paper Products Co.

404 S.E.2d 346, 199 Ga. App. 197, 1991 Ga. App. LEXIS 413

• Court: Court of Appeals of Georgia
• Decided: March 15, 1991
• Docket: A90A2354
• Status: Published

Opinions

Carley, Judge.

After bringing suit against appellee-defendant, appellant-plaintiff failed to comply with certain requests for production of documents. Pursuant to appellee’s motion, the trial court entered an order compelling appellant’s production of the requested documents. When appellant failed to comply with this order, appellee filed a motion for sanctions. Only minutes before the hearing that had been scheduled on appellee’s motion, appellant filed a notice of voluntary dismissal pursuant to OCGA § 9-11-41 (a) and served appellee with a copy thereof. However, the trial court subsequently struck appellant’s notice of voluntary dismissal and dismissed appellant’s complaint and assessed attorney’s fees as sanctions under OCGA § 9-11-37 (b) (2) (C). It is from this order of the trial court that appellant brings this appeal.

Pursuant to OCGA § 9-11-41 (a) a plaintiff may voluntarily dismiss his action, without order or permission of the trial court, at any time before he rests his case. However, “ ‘ “the announcement by a trial judge of a decision that will terminate a civil case, though that decision has not been formally reduced to writing and entered, will preclude the filing of a voluntary dismissal after the announcement but before the judgment is actually entered by the trial judge. [”] [Cit.]’ [Cit.] ‘ “It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” ’ [Cit.]” Johnson v. Wade, 184 Ga. App. 675, 676 (1) (362 SE2d 469) (1987). Although the termination of appellant’s action by dismissal of its complaint was obviously a possible result of the impending hearing on appellee’s motion for sanctions, there is no evidence that appellant lhad prior knowledge that such a sanction would actually be imposed.

| There is no “bad faith” exception to a plaintiff’s right to voluntarily dismiss his action pursuant to OCGA § 9-11-41 (a). “[T]he legislative intent behind the enactment of OCGA § 9-11-41 (a) was to afford a plaintiff, faced with a contrary verdict or other untenable iposition, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” (Emphasis supplied in part.) Griggs v. Columbus Bank &c. Co., 188 Ga. App. 741, 743 (374 SE2d ) (1988). See also Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 600 (2) (399 SE2d 92) (1990).

After appellant voluntarily dismissed its complaint, there was nothing pending in the trial court but appellee’s motion for sanctions pursuant to OCGA § 9-11-37 (b). Compare American Express Co. v. Baker, 192 Ga. App. 21 (1) (383 SE2d 576) (1989). If appellee wished to secure attorney’s fees based upon appellant’s asserted abuse of discovery procedures, it could have moved pursuant to OCGA § 9-15-14. However, appellant’s notice of voluntary dismissal was valid and the trial court’s subsequent order striking that notice and imposing any sanctions pursuant to OCGA § 9-11-37 (b) was a nullity and must be reversed. Johnson v. Wade, supra.

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Beasley and Cooper, JJ., concur. Sognier, C. J., and Andrews, J., concur in part and dissent in part.