HART v. REDMOND REGIONAL MEDICAL CENTER (2009)

Larry Eugene Hart appeals from the trial court's order requiring him to pay attorney fees to Redmond Park Hospital, LLC d/b/a Redmond Regional Medical Center and Amanda Edmondson, RN (“appellees”) for discovery violations and his failure to comply with a trial court order compelling discovery.¹ Hart argues that the trial court lacked jurisdiction to issue the order following his voluntary dismissal of the underlying lawsuit and that the award is contrary to the legislative intent authorizing voluntary dismissal.² We disagree and affirm.

On May 6, 2008, Hart filed suit against appellees alleging various torts and seeking monetary damages. Appellees answered Hart's complaint and served him with written discovery. When Hart failed to provide the answers to discoverable information requested in interrogatories and deposition questioning-including such questions as the names of his children and former wives-appellees filed a motion to compel. Following a hearing on the motion, the trial court ordered Hart to comply with various discovery requests and further ordered that Hart pay appellees' attorney fees.

Hart failed to comply with the trial court's order. Consequently, appellees filed a motion to dismiss Hart's complaint as a sanction and sought additional attorney fees. The trial court scheduled a hearing to be conducted on appellees' motion on December 18, 2008. Ten days prior to the hearing, Hart voluntarily dismissed his lawsuit without prejudice pursuant to OCGA § 9-11-41(a).³

The trial court nonetheless held a hearing on appellees' motion for attorney fees, which it granted. Citing both OCGA §§ 9-11-37⁴ and 9-15-14,⁵ the trial court awarded appellees additional attorney fees based upon Hart's and his counsel's “improper conduct during this litigation and noncompliance with the rules of discovery and with the [trial court's order following appellees' motion to compel], having unnecessarily expanded the proceedings, necessitating additional action by [the appellees], including but not limited to, the filing of additional motions.”⁶

1. Hart first argues that the trial court lacked jurisdiction to render the attorney fee award after he voluntarily dismissed his lawsuit. Hart's position, however, is directly contrary to the express language of OCGA § 9-15-14(e), which authorizes a party to move for attorney fees up to 45 days “after the final disposition of the action.” This provision “provides a statutory exception to post-judgment jurisdiction as a limited ‘window of opportunity’ to seek such sanctions.” (Citation and punctuation omitted.) Harris v. Werner, 278 Ga.App. 166, 167, 628 S.E.2d 230 (2006). As we have previously explained,

mere voluntary dismissal under O.C.G.A. § 9-11-41(a) is not “final” because [Georgia law] allows an action to be renewed after dismissal. “Final disposition” does not occur until a second dismissal, expiration of the original applicable period of limitations, or six months after the discontinuance or dismissal, whichever is later. [Otherwise], the “window of opportunity” would begin to run while the case could still be renewed, and a litigant could lose the right to seek OCGA § 9-15-14 penalties after a dismissal that proved to be only temporary rather than final.

(Citations and punctuation omitted.) Meister v. Brock, 268 Ga.App. 849, 850(1), 602 S.E.2d 867 (2004). See also Harris, 278 Ga.App. at 167, 628 S.E.2d 230. Accordingly, Hart's argument lacks merit.

2. Relying on Griggs v. Columbus Bank & Trust Company, 188 Ga.App. 741, 743, 374 S.E.2d 347 (1988), Hart further argues that the trial court's grant of attorney's fees violated the legislative intent behind OCGA § 9-11-41(a). In Griggs, we observed that “the inescapable conclusion is that the legislative intent behind the enactment of OCGA § 9-11-41(a) was to afford a plaintiff, faced with a contrary verdict or other untenable position, a second chance to litigate his suit despite the inconvenience and irritation to the defendant.” (Emphasis omitted.) Id. at 743, 374 S.E.2d 347.

The facts of Griggs are distinguishable from the facts of the instant case. In Griggs, the trial court held that the plaintiff's case involved a meritorious justiciable issue for jury determination and stated that there was no evidence that by voluntarily dismissing the lawsuit, the plaintiff intended to delay, harass, or expand unnecessarily the proceedings. Id. at 743, 374 S.E.2d 347. The trial court nonetheless awarded attorney fees pursuant to OCGA § 9-15-14. On appeal, we held that a plaintiff's invocation of OCGA § 9-11-41(a) does not, in and of itself, subject a plaintiff to penalties under OCGA § 9-15-14 “when none of the grounds for imposing those penalties exists.” Id.

In contrast, the trial court in this case concluded that Hart's improper conduct during discovery obligated appellees to seek intervention from the trial court and then, even after the trial court intervened, Hart disregarded the order compelling his cooperation. Consequently, appellees incurred needless expense, and the litigation was unnecessarily expanded prior to Hart's voluntary dismissal. The trial court's award of attorney fees under these circumstances, unlike those presented in Griggs, does not thwart the intended purpose of OCGA § 9-11-41(a).⁷ See, e.g., Bircoll v. Rosenthal, 267 Ga.App. 431, 437(1), 439-440(2)(c), 600 S.E.2d 388 (2004); Hardwick-Morrison Co. v. Mayland, 206 Ga.App. 426, 427, 425 S.E.2d 416 (1992).

Judgment affirmed.

BERNES, Judge.

SMITH, P.J., and PHIPPS, J., concur.