COTTON v. SURRENCY (2006)

Thomas E. Cotton filed suit on August 10, 2004, against Robert E. Surrency, P.C., and individually, alleging breach of employment contract, breach of fiduciary duty, and fraud arising from Surrency's representation of him in a criminal matter in 1999.   Cotton, pro se, appeals from the trial court's grant on December 2, 2004, of Surrency's motion to dismiss for failure to state a claim after Cotton had voluntarily dismissed his complaint on November 29, 2004.¹

 Pursuant to OCGA § 9-11-41(a)(1), subject to limitations not applicable here, “an action may be dismissed by the plaintiff, without order or permission of court:  (A) By filing a written notice of dismissal at any time before the first witness is sworn.”

The intent of the legislature in enacting OCGA § 9-11-41(a) was to give a plaintiff an opportunity to escape from an “untenable position” and relitigate the case, and thus there is no “bad-faith exception” to the right to dismiss and later relitigate, despite inconvenience and irritation to the defendant.   C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co., 199 Ga.App. 197, 404 S.E.2d 346 (1991).

Lakes v. Marriott Corp., 264 Ga. 475, 476, 448 S.E.2d 203 (1994).

Following Cotton's dismissal on November 29, 2004, the court was divested of jurisdiction and the order entered December 2, 2004 was a nullity.  Lotman v. Adamson Contracting, 219 Ga.App. 898, 467 S.E.2d 224 (1996);  Smith v. Memorial Med. Center, 208 Ga.App. 26, 28(1), 430 S.E.2d 57 (1993).

Judgment reversed.

FOOTNOTES

1.   No brief has been filed by appellee Surrency.

ANDREWS, Presiding Judge.

PHIPPS and MIKELL, JJ., concur.