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Kilgore v. Stewart

The trial court erred in denying the defendant's motion to dismiss because the plaintiff did not validly dismiss his first action against the defendant before filing his renewal suit.

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John Kilgore appeals from the trial court’s order denying his motion to dismiss a renewal action filed by Grant Stewart. Kilgore asserts the trial court should have dismissed Stewart’s renewal action because it was filed before Stewart validly dismissed his first action against Kilgore. We agree and therefore reverse. The record shows that Stewart filed suit against Kilgore and Walter Stansberry for injuries he received in an automobile accident. Stewart also served State Farm Mutual Automobile Insurance Company with a copy of the complaint. Stewart voluntarily dismissed Kilgore, and only Kilgore, on March 6, 2009. Thirteen days later, he voluntarily dismissed Stansberry. Shortly after that, he filed a renewal action against both defendants. On June 16, 2009 —long after the renewal action had been filed —the trial court entered a “so ordered” stamp on the voluntary dismissal of Kilgore and signed the stamp.

Kilgore moved to dismiss the renewal complaint based upon Stewart’s failure to obtain a court order approving his dismissal before filing the renewal action as required by OCGA § 9-11-21. The trial court denied the motion in a one-sentence order without explaining its reasoning.

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