Cotton v. Surrency

626 S.E.2d 148, 277 Ga. App. 158, 2006 Fulton County D. Rep. 176, 2006 Ga. App. LEXIS 22

• Court: Court of Appeals of Georgia
• Decided: January 9, 2006
• Docket: A05A1679
• Status: Published

Opinion

ANDREWS, Presiding Judge.

Thomas E. Cotton filed suit on August 10, 2004, against Robert E. Surrency, PC., and individually, alleging breach of employment contract, breach of fiduciary duty, and fraud arising from Surrency’s representation of him in a criminal matter in 1999. Cotton, pro se, appeals from the trial court’s grant on December 2, 2004, of Surrency’s motion to dismiss for failure to state a claim after Cotton had voluntarily dismissed his complaint on November 29, 2004. 1

Pursuant to OCGA § 9-11-41 (a) (1), subject to limitations not applicable here, “an action may be dismissed by the plaintiff, without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn.”

The intent of the legislature in enacting OCGA § 9-11-41 (a) was to give a plaintiff an opportunity to escape from an “untenable position” and relitigate the case, and thus there is no “bad-faith exception” to the right to dismiss and later relitigate, despite inconvenience and irritation to the defendant. C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co., 199 Ga. App. 197 (404 SE2d 346) (1991).

Lakes v. Marriott Corp., 264 Ga. 475, 476 (448 SE2d 203) (1994).

Following Cotton’s dismissal on November 29, 2004, the court was divested of jurisdiction and the order entered December 2, 2004, was a nullity. Lotman v. Adamson Contracting, 219 Ga. App. 898 (467 SE2d 224) (1996); Smith v. Mem. Med. Center, 208 Ga. App. 26, 28 (1) (430 SE2d 57) (1993).

Judgment reversed.

Phipps and Mikell, JJ., concur. Decided January 9, 2006. Thomas E. Cotton, pro se. Robert E. Surrency, pro se.

1 No brief has been filed by appellee Surrency.