In this matter arising out of a dispute over several loan agreements, Sadi Holdings, LLC and Sadi Menegolo collectively “plaintiffs” sued Lib Properties, Ltd, Capital Mortgage Corporation, Realty Resources Corporation collectively “Lib defendants”, and others, alleging various claims, including breach of contract, negligence, and fraud. The trial court granted the Lib defendants’ motion to dismiss based on the existence of a prior pending action. Plaintiffs appeal, arguing that the trial court erred in dismissing the action with prejudice rather than staying it or dismissing it without prejudice. Discerning no error in the trial court’s order dismissing plaintiffs’ complaint, we affirm in part, reverse in part and remand with direction. “We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” Punctuation omitted. Welch v. Ga. Dept. of Transp. 1 The record shows that Sadi Holdings entered into several loan agreements with the Lib defendants in order to finance a real estate development plan. On January 12, 2006, as a result of a dispute regarding those loans, Sadi Holdings sued Lib Properties, Ltd, Capital Mortgage Corporation, Realty Resources Corporation, and a John Doe defendant, alleging various claims, including breach of contract, negligence, and fraud. The Lib defendants filed an answer, and on December 6, 2006, filed a motion to dismiss or, in the alternative, for summary judgment, arguing that under the company’s operating agreement, Sadi Menegolo one of the company’s two managers lacked corporate authority to unilaterally authorize and direct the filing of the lawsuit in the name of Sadi Holdings. On February 13, 2007, the trial court granted the Lib defendants’ motion and dismissed Sadi Holdings’s complaint without prejudice. On March 7, 2007, Sadi Holdings filed a notice of appeal of that dismissal. Its appeal was docketed on August 16, 2007, and the trial court’s order was recently affirmed by this Court without opinion Case No. A08A0017.
On August 13, 2007, Sadi Holdings and Sadi Menegolo filed what they termed a renewal action against the Lib defendants, Mark Dagel, Kimberly Dagel, and a John Doe defendant. The renewal action was filed in the same court and alleged the same claims, with some minor additions, as Sadi Holdings’s initial complaint. The Lib defendants filed an answer, and on October 1, 2007, filed a motion to dismiss pursuant to OCGA § 9-2-5 a and § 9-2-44 a, arguing that plaintiffs could not maintain this renewal action in light of the existence of the prior action, which was still pending on appeal. On February 7, 2008, the trial court granted the Lib defendants’ motion and dismissed the renewal action with prejudice. This appeal followed.
