FIRST MEDIA GROUP, INC. v. Doe
This text of 717 S.E.2d 277 (FIRST MEDIA GROUP, INC. v. Doe) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
First Media Group, Inc. (“FMG”) appeals an order in which the trial court declined to set aside Jane Doe’s voluntary dismissal of her lawsuit, which occurred after Doe became aware that the court requested FMG to draft a proposed order granting its motion for summary judgment. The trial court permitted the voluntary dismissal over FMG’s objection upon concluding that Doe did not have actual notice of the trial court’s intended disposition of FMG’s summary-judgment motion prior to dismissing the complaint. For the reasons noted infra, we affirm.
The underlying facts are largely undisputed. Jane Doe sued FMG on behalf of her minor daughter, Julie Doe, who was allegedly raped by a customer of FMG’s “Quest Personals” telephone system, which Julie had joined. FMG moved for summary judgment on Doe’s claims, and the trial court conducted a hearing on the motion.
At some point following the hearing, the trial judge’s law clerk telephoned FMG’s counsel to request that FMG draft a proposed order granting summary judgment in its favor. No similar request was made of Doe or her counsel.
On Friday evening, April 3, 2009, FMG’s counsel sent an e-mail, with the draft order attached, to the trial judge’s law clerk and copied the e-mail to Doe’s counsel, which noted: “Per your request, attached as an editable Word document is a proposed opinion in the Jane Doe matter.” This was the first, and only, communication to Doe or her counsel regarding a potential resolution of FMG’s summary-judgment motion. Doe’s counsel called the trial court’s chambers the same night and the following Monday morning to inquire as to whether the court also wanted Doe to draft a proposed *85 order, but he was unable to reach anyone.
Later that morning, Doe filed a voluntary dismissal without prejudice under OCGA § 9-11-41 (a) (1) (A), 1 to which FMG objected. The trial court issued an order expressly holding that it had neither communicated any intended disposition to Doe or her counsel, nor had FMG’s e-mail imputed to Doe actual knowledge of a decided ruling by the trial court on FMG’s summary-judgment motion. Consequently, the trial court held that Doe’s voluntary dismissal was proper.
On appeal, FMG contends that the trial court erred in concluding that Doe did not have actual knowledge of the trial court’s impending decision in favor of FMG. To the extent our analysis of the trial court’s order involves mixed questions of law and fact, we review the court’s factual findings for clear error and the accompanying legal issues de novo. 2
At the outset, we note that under Georgia law a plaintiff may voluntarily dismiss her complaint without prejudice “[b]y filing a written notice of dismissal at any time before the first witness is sworn.” 3 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. 4
Further, “[i]t is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” 5
And here, FMG asserts that Doe’s awareness of FMG’s e-mail communication to the trial court — in which FMG acknowledged the trial court’s request for a proposed order — amounted to “actual knowledge” by Doe that the trial court would “likely . . . grant[ ]” summary judgment against her. 6 FMG argues, therefore, that Doe *86 was prohibited from voluntarily dismissing her complaint. 7
FMG’s argument, however, fails for two reasons. First, preter-mitting the issue of whether the law precludes a plaintiff from dismissing a lawsuit based upon information gleaned from a third-party regarding a court’s intended disposition of a case, the trial court’s request for a proposed order in the case sub judice did not demand a finding that the court intended to rule in FMG’s favor. 8 Second, as held by the trial court, FMG’s e-mail did not impute to Doe or her counsel actual knowledge of the court’s impending ruling, which it never announced or rendered. Thus, while Doe may have (understandably) inferred from the trial court’s request a possible or likely ruling, or more colloquially, that the “handwriting was on the wall,” in the absence of “an announcement from the trial court of the actual outcome of the case, the ‘handwriting on the wall’ is merely in pencil, subject to being erased.” 9 And “[tjhe right of a plaintiff to have his case decided on its merits cannot be cut off by what is only formulated, or formulating, in the judge’s mind.” 10 It follows, then, that a request by the trial court’s clerk that FMG draft a proposed order in its own favor did not enable FMG to effect an end to Doe’s case by informing Doe of that request. 11
Accordingly, the trial court did not err in finding that FMG’s e-mail did not impute to Doe actual knowledge of an unfavorable ruling by the court, or in concluding that Doe was authorized to voluntarily dismiss her lawsuit.
Judgment affirmed.
OCGA § 9-11-41 (a) (1) (A) (‘TA]n action may be dismissed by the plaintiff, without order or permission of court. . . [b]y filing a written notice of dismissal at any time before the first witness is sworn.”). Such a dismissal is without prejudice. Id. at (a) (3).
McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007).
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Cite This Page — Counsel Stack
717 S.E.2d 277, 312 Ga. App. 84, 11 Fulton County D. Rep. 2975, 2011 Ga. App. LEXIS 838, 11 FCDR 2975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-media-group-inc-v-doe-gactapp-2011.