Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cracker Barrel Old Country Store, Inc. v. Robinson

Court of Appeals of Georgia, Second Division

April 21, 2017

CRACKER BARREL OLD COUNTRY STORE, INC.
v.
ROBINSON

          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Reese, Judge.

         In this personal injury action, defendant Cracker Barrel Old Country Store, Inc. ("Cracker Barrel") appeals from the trial court's order denying its motion to dismiss plaintiff Gail Robinson's renewed complaint.[1] Cracker Barrel argues, inter alia, that the court erred in rejecting its argument that Robinson's two prior voluntary dismissals of this action resulted in an adjudication on the merits under OCGA § 9-11-41 (a) (3), thereby barring her from re-filing the complaint a third time as a renewal action. It also contends that the court erred in denying its request for attorney fees and expenses of litigation. For the reasons set forth, infra, we reverse the denial of Cracker Barrel's motion to dismiss, and remand this case for consideration of Cracker Barrel's request for attorney fees and expenses.

         The record shows the following undisputed facts. On February 4, 2014, Robinson filed a complaint against Cracker Barrel in the State Court of Douglas County, alleging that, on March 17, 2013, after dining at Cracker Barrel, she suffered from food poisoning. On April 22, 2014, Robinson filed a voluntary dismissal of her complaint.

         On April 25, 2014, Robinson re-filed her complaint in the State Court of Gwinnett County with the same allegations. On September 14, 2015, after the two-year statute of limitation had expired on March 17, 2015, [2] Robinson voluntarily dismissed that complaint without prejudice.

         Then, on January 25, 2016, Robinson filed a renewal action against Cracker Barrel in Douglas County, pursuant to OCGA § 9-2-61 (a). Cracker Barrel filed a motion to dismiss, contending, among other things, that Robinson was barred from filing her third complaint as a renewal action as a matter of law. It argued that, in order to renew an action under OCGA § 9-2-61 (a), the action must have been dismissed without an adjudication on its merits, and that Robinson's voluntary dismissal of her second complaint operated as an adjudication on the merits under the plain language of OCGA § 9-11-41 (a) (3).

         OCGA § 9-11-41 (a) (1) (A) provides that "an 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[.]" OCGA § 9-11-41 (a) (3) provides, however, that "the filing of a second notice of [voluntary] dismissal operates as an adjudication upon the merits."[3] It follows that, under OCGA § 9-11-41 (a) (3), a plaintiff who has voluntarily dismissed a complaint two times is barred by the res judicata effect of that provision from filing it a third time.[4]

         Following a hearing on Cracker Barrel's motion to dismiss, the trial court issued an order, which stated, in relevant part, as follows:

[A] review of the record shows that the first complaint [Robinson] filed in Douglas County was not served on [Cracker Barrel until] April 29th, 2014. This was 8 (eight) days after the underlying lawsuit was dismissed.[ ] Thus, service was not perfected prior to the filing of [Robinson's] voluntary dismissal of the 2014 lawsuit. Therefore, the [first complaint] was null and void, and will not count as a previous filing for purposes of [OCGA § 9-11-41 (a) (3)].[5]

         The court ruled that, as a result: (1) the voluntary dismissal of Robinson's second complaint thus qualified as her first voluntary dismissal under OCGA § 9-11-41; (2) the statute of limitation ran before the second complaint was dismissed; and (3) consequently, her third complaint was permitted under the renewal statute. Based upon this conclusion, the court denied Cracker Barrel's motion to dismiss and its request for attorney fees and expenses. This appeal followed.

         "A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint."[6] On appeal from the denial of a motion to dismiss, "this Court will uphold the trial court's findings if there is any evidence to support them."[7] With these guiding principles in mind, we turn now to Cracker Barrel's specific claims of error.

         Cracker Barrel argues that the trial court erred in finding that the first complaint filed by Robinson did not count as a voluntary dismissal for the purposes of OCGA § 9-11-41 (a) (3). As shown above, the trial court found as a matter of fact that Robinson did not serve Cracker Barrel with the complaint until April 29, 2014, eight days after she had voluntarily dismissed it, so it concluded that the complaint was "null and void" as a matter of law.

         1. As an initial matter, this Court has culled the entire appellate record and has found no evidence to support the trial court's finding of fact that Cracker Barrel was not served with the first complaint until April 29, 2014, after Robinson voluntarily dismissed the complaint. The trial court did not cite to a source for the fact in its order, saying only that it was a "sua sponte finding" of the court, and the court specifically admitted that Robinson did not raise this issue in her brief or during the motion hearing.

         In fact, not only did Robinson fail to challenge the validity of the first complaint or present any evidence to show that it had not been served on Cracker Barrel before it was voluntarily dismissed, but statements made by her counsel during the hearing on the motion to dismiss appear to concede that the first complaint was properly filed and otherwise valid.[8] For example, he told the court that this case had been "validly filed inside the statute [of limitation] for the second time, and then it had been dismissed and re-filed outside the statute [of limitation]." (Emphasis supplied.) He also admitted that "[o]ur situation simply concerns two voluntary dismissals ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.