Georgia Supreme Court Overrules 40 Years of Precedent, Reconciling the “Two-Dismissal Rule” with the Preclusive Effect of Res Judicata
By: Hallie Richards
On June 22, 2022, the Georgia Supreme Court issued a ruling in Joyner v. Leapheart, overturning 40 years of precedent supporting the “two-dismissal rule” under O.C.G.A. § 9-11-41. Following the death of their newborn in a Savannah Hospital, the Joyners brought a wrongful death action in the State Court of Fulton County (Action 1) against Leaphart, several nurses and multiple corporate entities. That case was transferred to the State Court of Chatham County as a more convenient forum. Shortly thereafter, the Joyners sued the nurses’ employer, Memorial Health University Medical Center, Inc., (Memorial) and Leaphart’s employer, MPPG. Instead of joining these defendants in Action 1, the Joyners filed two new actions in Fulton County (Action 2 and Action 3). The complaints filed in each action arose from the same events, alleged similar acts of negligence and contained similar claims for relief. However, each complaint sought relief from different defendants.
The Chatham County State Court entered a consent order in Action 1, which authorized the Joyners to add Memorial and MPPG as defendants in that action. Before adding Memorial and MPPG as defendants in Action 1, the Joyners dismissed Action 2 and Action 3 in Fulton County. Leaphart and MPPG then moved to dismiss Action 1, citing the two-dismissal rule and arguing they should be dismissed from Action 1 on grounds of res judicata, which prevents a cause of action from being relitigated once it has been judged on the merits. Following a brief stay in Action 1, the Chatham County State Court granted the motion to dismiss and entered judgment in favor of Leaphart and MPPG. The Court of Appeals affirmed that decision, reasoning that the two-dismissal rule applies to the second voluntary dismissal of an action regardless of the parties named as defendants. In other words, the Court of Appeals determined the two-dismissal rule applies to actions, rather than defendants. Thus, the Joyners made a fatal mistake when they dismissed Action 2 and Action 3 before amending Action 1 to add Memorial and MPPG.
The Georgia Supreme Court overruled the Court of Appeals, finding its decision was based on erroneous precedent which relied on a former version of O.C.G.A. § 9-11-41 and failed to properly apply the law of res judicata. The current version of O.C.G.A. § 9-11-41 makes it clear that the two-dismissal rule applies to actions, rather than claims. Former versions of the statute were not so clear. Instead, the version of O.C.G.A. § 9-11-41 relied upon by the Court of Appeals applied the two-dismissal rule to “an action based on or including the same claim.” That version was repealed and replaced by the General Assembly in 1985. Subsequent versions have not included the “same claim” language. Moreover, subsection (a) of the current version provides for the voluntary dismissal of “an action.” Considering this evolution, the Georgia Supreme Court held that the General Assembly meant the two-dismissal rule to apply to the plaintiff’s entire action, and not to individual claims.
In failing to properly apply the law of res judicata, the Court of Appeals seemed to equate “adjudication on the merits” under the two-dismissal rule with the established defense of res judicata. The two are related, but not equal. As the Georgia Supreme Court explains, an “adjudication on the merits” is a component of the defense of res judicata. Once there is an adjudication on the merits, it is the doctrine of res judicata which bars subsequent suits on the same cause of action. However, three pre-requisites must be satisfied before res judicata applies: (1) identity of the cause of action; (2) identity of the parties or their privies; and (3) previous adjudication on the merits by a court of competent jurisdiction. Thus, an adjudication on the merits resulting from the two-dismissal rule satisfies only one pre-requisite of res judicata. In order to bar a third action, defendants must demonstrate that res judicata applies by showing that all prerequisites have been satisfied.
Following the Georgia Supreme Court’s decision in Joyner v. Leapheart, defendants should not simply plead O.C.G.A. § 9-11-41(a)(3) as a defense in a separate action. Instead, defendants must show that the two-dismissal rule applies, the second voluntary dismissal resulted in an adjudication on the merits and the other elements of res judicata (identity of action and parties) are satisfied. The trial court will then apply the law of res judicata to determine whether that adjudication bars the third action.
Attorney Contact Info
Hallie Richards
hallie.richards@swiftcurrie.com
470.639.4872