A plaintiff appealed a trial court’s dismissal with prejudice of his negligence action against the defendant that arose from a car accident. The defendant died during the litigation, but the plaintiff never filed a motion to substitute a new defendant. Instead, he filed a motion to dismiss the case without prejudice. But the trial court dismissed the case with prejudice because the plaintiff never filed a substitution motion, much less a timely one.
Dismissal with prejudice means a plaintiff can’t refile the same claim again in that court. It is basically the death penalty for a lawsuit.
Here, the plaintiff argued that the trial court erred and should have dismissed the case without prejudice.
Background
In August 2016, the parties were involved in a car accident in which they were both injured. About two years later, the plaintiff filed a negligence action against the defendant to recover for his injuries. However, during the pendency of the case, the defendant died. His counsel filed a suggestion of death. Despite this, discovery continued, and the plaintiff never filed a motion to substitute another defendant for the defendant who died.
About a year after the suggestion of death was filed, the plaintiff filed a motion to dismiss the case without prejudice under O.C.G.A. § 9-11-41. But instead of granting this motion, the trial court dismissed the case with prejudice. The trial court ruled that the plaintiff’s dismissal motion was a nullity because he never filed a motion for substitution of a new defendant. Under these circumstances, the trial court found that dismissal of the case was mandatory. The plaintiff appealed.
The Plaintiff’s Argument on Appeal
Specifically, the plaintiff argued that the trial court erred in finding that dismissal with prejudice was mandatory under O.C.G.A. § 9-11-25(a)(1) and failing to grant his motion to dismiss without prejudice when it was permitted, timely, and valid. Presiding Judge Dillard of the Georgia Court of Appeals wrote that O.C.G.A. § 9-11-25(a)(1) provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representative of the deceased party and, together with the notice of the hearing, shall be served on the parties as provided in Code Section 9-11-5 and upon persons not parties in the manner provided in Code Section 9-11-4 for the service of a summons. Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.
There was no question that the plaintiff never filed a motion for substitution after the defendant’s counsel filed the suggestion of death——much less within the time period required by statute. Nevertheless, the plaintiff asserted that his motion to dismiss the case without prejudice should have been granted because it was valid and timely. Judge Dillard said that O.C.G.A. § 9-11-41(a)(1)(A) provides:
By plaintiff; by stipulation. Subject to the provisions of subsection (e) of Code Section 9-11-23, O.C.G.A. § 9-11-66, and any statute, 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…
The Court of Appeals’ Decision
Judge Dillard found that while the plaintiff waited nearly a year after the suggestion of death was filed to move to dismiss the case without prejudice, he did so before any witnesses in the case were sworn and at a time when the case was still pending.
The trial court didn’t dismiss the case until after the plaintiff moved to dismiss it without prejudice. As a result, the question before the Court of Appeals was whether a plaintiff’s failure to file a timely motion to substitute a party for the deceased defendant deprived him of his right to dismiss the case without prejudice at any time before the first witness is sworn. Judge Dillard said the Supreme Court of Georgia had already answered this question in the negative.
The Court of Appeals held that the plaintiff’s right to dismiss this case without prejudice under O.C.G.A. § 9-11-41(a)(1)(A) wasn’t affected by his failure to file a substitution motion. In fact, the case was still pending when the plaintiff filed the motion to dismiss without prejudice before the first witness was sworn.
As a result, the Court of Appeals held that the trial court erred in dismissing this case with prejudice based solely on the plaintiff’s failure to substitute a party for the defendant and in finding that the plaintiff’s motion to dismiss the case without prejudice was a nullity. The judgment was reversed. Nobles v. Bonney, 359 Ga. App. 544, 859 S.E.2d 518 (Ga. App. May 21, 2021).
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