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Court of Appeals of Georgia.

BUNCH et al. v. VINCENT.

No. A98A1058.

Decided: September 23, 1998

Hawkins & Parnell, H. Lane Young II, Anthony P. Tatum, Atlanta, for appellants. Gary P. Bunch, pro se. Cabaniss & Adkins, George M. Cabaniss, Jr., Atlanta, for appellee.

This is the second appearance of this action for damages predicated on allegations of legal malpractice and breach of fiduciary duty.   In Vincent v. Bunch, 227 Ga.App. 480, 489 S.E.2d 592, a partial grant of summary judgment in favor of defendants Gary P. Bunch and Gary Bunch, P.C. was reversed, because the superior court did not allow plaintiff Vincent to present oral argument on defendants' motion for partial summary judgment, and the case was remanded with instructions.

Following remand to the superior court, plaintiff filed a voluntary dismissal without prejudice pursuant to OCGA § 9-11-41(a).   Defendants filed their objection to and motion in opposition to plaintiff's voluntary dismissal maintaining that plaintiff's attempted dismissal was ineffective and impermissible in the light of the instructions given by this Court in the decision of the prior appeal that “we reverse the trial court's ruling on Bunch's motion for partial summary judgment, and we remand this case to the trial court with instructions that oral argument be held on the motion.”  (Emphasis supplied.)  Vincent v. Bunch, 227 Ga.App. 480, 481, 489 S.E.2d 592, supra.   Defendants' objection and motion were denied, and the superior court ruled that plaintiff's voluntary dismissal of the action without prejudice was effective.   Defendants appealed.   Held:

 1. “[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.”  OCGA § 9-11-41(a).   We have held “that ‘case,’ as used in the statute, means the entire case so that the effect of the statute is not triggered until [plaintiff] rests as to [all issues].”  Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga.App. 598, 600(2), 399 S.E.2d 92.   The submission of this case for a ruling on a motion for partial summary judgment is analogous to the plaintiff in Pounds resting during the trial of the liability issue only, in that in neither instance did a plaintiff rest his entire case so as to terminate his statutory right to voluntarily dismiss without prejudice.   Thus, plaintiff's voluntary dismissal without prejudice was timely filed within the contemplation of OCGA § 9-11-41(a).

 2. Defendants argue that the plaintiff's voluntary dismissal was in violation of the Civil Practice Act and public policy since it served to squander scarce judicial resources by allowing plaintiff to relitigate the case in another court.   Nonetheless, we find no merit in this contention since it has been repeatedly held that the intent of the legislature in enacting OCGA § 9-11-41(a) was to give plaintiffs the opportunity to escape untenable positions and relitigate the case.   There is no bad faith exception to the right to dismiss and later relitigate, despite whatever inconvenience and irritation this may cause the defendants.  Lakes v. Marriott Corp., 264 Ga. 475, 476, 448 S.E.2d 203;  Redman Homes v. Voss, 212 Ga.App. 404, 405-406(1), 441 S.E.2d 792;  C & S Indus. Supply Co. v. Proctor & Gamble &c., 199 Ga.App. 197, 404 S.E.2d 346;  Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga.App. 598, 600(2), 399 S.E.2d 92, supra.

 3. Finally, we find nothing in this Court's instructions, contained in the earlier opinion in this case, which was intended to bar plaintiff's exercise of his voluntary dismissal rights under OCGA § 9-11-41(a).   While this Court's instructions were binding upon the lower court and the parties so long as the case remained pending below, there is no indication that the instructions were intended to abridge plaintiff's rights under OCGA § 9-11-41(a).

Judgment affirmed.

McMURRAY, Presiding Judge.


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