Montgomery v. Morris

745 S.E.2d 778, 322 Ga. App. 558, 2013 Fulton County D. Rep. 2230, 2013 WL 3286309, 2013 Ga. App. LEXIS 560
CourtCourt of Appeals of Georgia
DecidedJuly 1, 2013
DocketA13A0441
StatusPublished
Cited by7 cases

This text of 745 S.E.2d 778 (Montgomery v. Morris) 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.

Bluebook
Montgomery v. Morris, 745 S.E.2d 778, 322 Ga. App. 558, 2013 Fulton County D. Rep. 2230, 2013 WL 3286309, 2013 Ga. App. LEXIS 560 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

Woodie M. Montgomery appeals from a trial court order holding her in contempt and from the order she allegedly violated, which served as the basis for the trial court’s contempt finding. Because the trial court lacked jurisdiction to enter the contempt order, we reverse.

The parties in the instant action, appellant Montgomery and her brother, appellee Walter S. Morris, are involved in long-running litigation over alleged improprieties in Montgomery’s handling of their late father’s estate, a trust, and a family limited partnership. After mediation, the parties agreed to settle the dispute, but when the parties’ attorneys attempted to draft a settlement agreement, another dispute arose over the scope of an indemnification provision. The parties in 2007 filed cross-motions to enforce the agreement. The trial court in 2010 granted both parties’ motions in part, and in two orders [559]*559it attached copies of a written settlement agreement and a written indemnification agreement, ordering the parties to sign those agreements. Shortly after executing the agreements, the parties again cross-motioned for contempt. The trial court denied those motions in one of the orders appealed from, dated October 27, 2010, andimposed requirements on Montgomery to report on her progress in meeting the obligations under the court’s prior order directing execution of the settlement and indemnification agreement. Also on October 27, 2010, the trial court issued a second order sua sponte dismissing the case without prejudice and directing the clerk of court to close the case. However, this order also stated that the trial court “retains complete jurisdiction to vacate this Order and to re-open the action if necessary.” Neither party moved for reconsideration or objected to this order.

Nearly a year later, on October 21, 2011, Morris renewed his motion for contempt under the same case number as the action that had been dismissed, alleging that Montgomery had wilfully failed to comply with the terms of the trial court’s prior orders. After a hearing, the trial court on May 30, 2012, held Montgomery in contempt for failing to subdivide a piece of real property as required by the terms of the settlement agreement, ordered her to have the property surveyed within 30 days of the date of the order, and ordered her to pay half the costs of the survey. The contempt order did not award fees or impose other sanctions. Montgomery filed the instant appeal.

1. Montgomery enumerates as error the contempt finding, arguing that the trial court lost jurisdiction when it dismissed the case without prejudice.1 We agree.

The question of whether a trial court has jurisdiction to hear a motion and enter a contempt finding is a legal question, and we owe no deference to the trial court’s ruling when we conduct a de novo review of the matter for plain legal error. Gallagher v. The Fiderion Group, LLC, 300 Ga. App. 434, 434-435 (685 SE2d 387) (2009).

OCGA § 9-11-41, which governs dismissal of actions, contemplates both voluntary dismissals upon plaintiff’s motion or stipulation, pursuant to OCGA § 9-11-41 (a), and involuntary dismissals pursuant to OCGA § 9-11-41 (b) for, inter alia, the “failure of the plaintiff to... comply with... any order of court.” The trial court’s sua sponte dismissal order does not specify the subsection under which it operates, but our Supreme Court has found that a sua sponte dismissal may function as an involuntary dismissal. See Smith v. Ga. [560]*560Kaolin Co., 269 Ga. 475, 476 (1) (498 SE2d 266) (1998) (“[T]he trial court involuntarily dismissed [the] complaint sua sponte. Such an involuntary dismissal is authorized by OCGA § 9-11-41 (b)”) (emphasis supplied), citing Cramer, Inc. v. Southeastern Office Furniture Wholesale Co., 171 Ga. App. 514, 515 (1) (320 SE2d 223) (1984) (where party made no formal motion to dismiss, this Court found that “while it is true that OCGA § 9-11-41 (b) contemplates a motion by a defendant, the court may exercise its inherent power to dismiss sua sponte”) (citations omitted). Although OCGA § 9-11-41 (b) imposes certain requirements for its application, neither party objected to or moved for reconsideration of this dismissal.

The dismissal of a lawsuit generally deprives the trial court of jurisdiction to take further action in a case.2 A dismissal “deprive[s] the trial court of jurisdiction over the case and [leaves] the parties in the same position as if the suit had never been filed.” (Citation omitted.) Lakes v. Marriott Corp., 264 Ga. 475, 478 (448 SE2d 203) (1994).

Although Morris argues, correctly, that the cases Montgomery cites on this issue address loss of jurisdiction only in the context of a voluntary dismissal without prejudice pursuant to OCGA § 9-11-41 (a) , he points us to no case addressing the status of jurisdiction after an involuntary dismissal without prejudice pursuant to OCGA § 9-11-41 (b) . Nor could we find any case on point. However, automatic dismissals pursuant to OCGA § 9-11-41 (e), which occur when no written order is issued in a case for five years, also are considered involuntary dismissals. See Windsor v. City of Atlanta, 287 Ga. 334, 337 (2) (695 SE2d 576) (2010). Such automatic dismissals are without prejudice and may be refiled within certain limitations. Goodwyn v. Carter, 252 Ga. App. 114, 116 (555 SE2d 474) (2001). As with voluntary dismissals under OCGA § 9-11-41 (a), where a case has been automatically dismissed under OCGA § 9-11-41 (e), any subsequent order is null and void because the trial court has lost jurisdiction over the case, which is no longer pending before it. Cornelius v. Morris Brown College, 299 Ga. App. 83, 85 (1) (681 SE2d 730) (2009). Accord Brown v. Kroger Co., 278 Ga. 65, 68 (597 SE2d 382) (2004). While not identically situated, the common factor these subsections ofOCGA § 9-11-41 and related cases share with the instant action is that the dismissals were without prejudice, allowing them to be refiled within certain parameters. We have held, in a case factually similar to the instant action, that a dismissal following a settlement that left no pending [561]*561claims divested the trial court of jurisdiction to consider a subsequent contempt motion. Gallagher, supra at 435, 436 (1).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

PACES FUNDING, LLC v. JOSEPH DEAN TILMAN IV
Court of Appeals of Georgia, 2026
Montra McKenzie v. Estate of John Lewis, Sr.
Court of Appeals of Georgia, 2025
Janet Baker v. Atlantic States Insurance Company
Court of Appeals of Georgia, 2020
BARNES v. CANNON Et Al.
820 S.E.2d 155 (Court of Appeals of Georgia, 2018)
PATEL Et Al. v. PATEL
802 S.E.2d 871 (Court of Appeals of Georgia, 2017)
Lewis v. City of Savannah
784 S.E.2d 1 (Court of Appeals of Georgia, 2016)
Rg Electric, Inc. v. Cole
Nevada Supreme Court, 2016

Cite This Page — Counsel Stack

Bluebook (online)
745 S.E.2d 778, 322 Ga. App. 558, 2013 Fulton County D. Rep. 2230, 2013 WL 3286309, 2013 Ga. App. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-morris-gactapp-2013.