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Lawskills.com Georgia Caselaw
JONES v. BIENERT.
A90A0907.
POPE, Judge.
Case transfer. DeKalb State Court. Before Judge McLaughlin.
Held:
We affirm in part and reverse in part. The trial court's order transferring the case read: "Upon consideration of Plaintiff's Motion to Transfer; after review of the pleadings, the Court finds that the defendant, Tina [sic] Denise Jones, is a resident of Henry County and pursuant to Uniform Superior Court Rule 19.1, said motion is GRANTED." Uniform Superior Court Rule 19.1 (F) (applicable to state court as well) reads: "No action or proceeding may be transferred except upon the written order of the court in which the action pends (transferor court), reasonable notice of which shall be given to all parties. This order shall specify the court to which the matter is to be transferred (transferee court) and shall state that unless plaintiff pays all accrued court costs within 20 days of mailing or delivery of the cost bill to plaintiff, the action shall automatically stand dismissed without prejudice." (Emphasis supplied.) Thus, although the order purported to effect the transfer immediately, by operation of Rule 19.1 (F) it could not be effected before payment of costs. The record shows that within four days of the entry of the order (and apparently before a bill of costs was prepared and certainly before 20 days had passed) Dr. Bienert voluntarily dismissed his action. Thus, Dr. Bienert's voluntary dismissal preceded the effective date of the transfer and the provision relating to dismissal for failure to pay costs never applied. OCGA 9-11-41 (a) then applied and the voluntary dismissal could only be allowed if Jones' counterclaim could stand and be adjudicated independently.
We hold that Jones' claim for abusive litigation was dismissed properly by the court, though for the wrong reason. Although Jones argues that her counterclaim contains claims independent of the one for abusive litigation, including intentional infliction of emotional distress, harassment, and tortious interference with property rights, we hold that the only other claim contained in her pleading is one for expenses of litigation and attorney fees pursuant to OCGA 9-15-14. Each of the alleged independent claims relates solely to the filing of the suit against Jones. She alleges no facts in her counterclaim claiming damage as a result of anything other than the filing of the suit by Dr. Bienert.
However, no such bar exists regarding the claim for expenses of litigation and attorney fees allowed pursuant to OCGA 9-15-14. The trial court erred in dismissing this aspect of Jones' counterclaim. The transfer order never took effect and the trial court retains jurisdiction to hear and adjudicate the claim for expenses of litigation and attorney fees pursuant to OCGA 9-15-14.
Levy & Adams, D. Merrill Adams, Paul J. Gallo, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, for appellee.
Donald B. Walker, for appellant.
DECIDED NOVEMBER 14, 1990.
Saturday May 23 19:36 EDT


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