A Potential Trap for the Unwary Plaintiff’s Lawyer

By Leigh M. Wilco, Mediator & Arbitrator


All Georgia lawyers should be aware of the two dismissal rule that results in an adjudication on the merits. Under Georgia law, with some limitations, a plaintiff can voluntarily dismiss a lawsuit without prejudice and refile the lawsuit. The lawsuit may be refiled “either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” O.C.G.A. § 9-2-61. The statute specifically states that if the dismissal was made after the statute of limitations had expired, it can only be exercised once. This code section is referred to as the renewal statute.


The rules for dismissal are set forth in O.C.G.A. § 9-11-41 and that code section states that a “dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” O.C.G.A. § 9-11-41(a)(3).


That seems pretty clear: if you sue a defendant and dismiss, refile, and dismiss, that is an adjudication upon the merits and you cannot sue that defendant again for the same cause of action. And that is true, but it is not that simple. What is often missed is that the statute refers to the dismissal of “an action” not a defendant. O.C.G.A. § 9-11-41(a)(1).


This trap was recently played out in Joyner v. Leaphart (Georgia Court of Appeals Case Number: A20A2097, January 22, 2021). In that case, the plaintiffs filed a wrongful death action in Fulton County against some defendants. The case was transferred to Chatham County on forum non conveniens grounds.  As the statute of limitations was running, plaintiffs wanted to add two additional defendants. For logistical reasons, plaintiffs filed two new suits in Fulton County against the new defendants only. The parties agreed that the new defendants should be part of the Chatham County case and the Chatham judge entered a consent order allowing them to be added. However, before the Chatham County lawsuit was amended to add them, the plaintiffs dismissed the two Fulton County cases.


Although the Chatham County lawsuit had different defendants than the Fulton County cases that were dismissed, the Court of Appeals agreed with the trial court’s ruling that the cause of action was the same. Therefore, when the plaintiffs dismissed both Fulton County cases while the Chatham County case was pending, those dismissals were two voluntary dismissals of the action and acted as an adjudication upon the merits. As a result, the Chatham County judge granted defendants’ motion to dismiss that lawsuit.


As the Court of Appeals noted, this is not new law. The same issue was decided in Walker v. Mecca, 320 Ga. App. 142, 143, 739 SE2d 450 (2013). However, because it does not come up very often, it is easy for the unaware attorney to miss. And the results are catastrophic for the plaintiff.


Joyner v. Leaphart https://efast.gaappeals.us/download?filingId=e633b8bc-f8cd-4532-890b-c9b01e4ac1ca




Leigh Wilco has been practicing law in Atlanta for over 35 years, representing plaintiffs and defendants in a variety of matters. For the past 20+ years, he has overseen the litigation practice group at Weissman PC (formerly Weissman, Nowack, Curry & Wilco) dealing with a wide range of real estate related matters, in addition to his previous areas of practice. Wilco has served as a neutral for more than 10 years in real estate disputes, premises liability claims, contractual disputes, small business and partnership dissolutions, professional liability, wrongful death, and personal injury cases. He has also been appointed by the courts as a Special Master and as a Receiver. Book your next mediation with Leigh HERE.