JOYNER v. LEAPHART

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: June 22, 2022

S21G0764. JOYNER et al. V. LEAPHEART et al.

ELLINGTON, Justice.

In Joyner v. Leaphart, 358 Ga. App. 383 (853 SE2d 407) (2021),

the Court of Appeals affirmed the trial court’s order dismissing with

prejudice Vanessa and Brock Joyner’s wrongful death action against

defendants Dr. Lynn Leaphart and MPPG, Inc. (“MPPG”), in

accordance with the “two-dismissal rule” of OCGA § 9-11-41 (a) (3) 1

following the Joyners’ voluntary dismissal of two later-filed actions.

In Division 2 of its opinion, the Court of Appeals held that, even

though the Joyners’ second and third actions were filed against

defendants who were not sued in the original, pending action, the

two-dismissal rule nevertheless applied, and the second voluntary

dismissal operated as an adjudication on the merits requiring the

OCGA § 9-11-41 (a) (3) provides: “A dismissal under this subsection is
1

without prejudice, except that the filing of a second notice of dismissal operates
as an adjudication upon the merits.”
dismissal of the action against Leaphart and MPPG. See Joyner, 358

Ga. App. at 384-385 (2). We granted the Joyners’ petition for a writ

of certiorari to consider the following question:

Did the Court of Appeals err in holding that the two-
dismissal rule, see OCGA § 9-11-41 (a) (3), applies to the
second voluntary dismissal of an action, regardless of the
parties named as defendants therein?

As explained below, we answer this question in the affirmative.

Therefore, we reverse Division 2 of the opinion of the Court of

Appeals, vacate the remainder of the opinion, and remand the case

for further proceedings consistent with this opinion.

1. Procedural background. After their newborn son died in a

Savannah hospital, the Joyners decided to bring a wrongful death

action. On August 17, 2016, the Joyners filed a complaint in the

State Court of Fulton County, naming Leaphart, several nurses, and

several corporate entities as defendants. 2 Upon determining that

2 The defendants named in the first action are: Memorial Health, Inc.;
Memorial Health Corporate Services, Inc., d/b/a Memorial Health University
Medical Center (“MUMC”) d/b/a Savannah Memorial Hospital; Savannah
Perinatology Associates, Inc.; Memorial Health University Medical Center and
Diagnostics Systems, Inc.; Dr. Laura Marion; Dr. Lynn Leaphart; Ginger
Thompson, RN; Sarah Bowers, RN; and John Does 1-10. The trial court
characterized some of these corporate entities as “non-existent.”
2
Chatham County was a more convenient forum for the litigation, the

Fulton State Court transferred the action to the State Court of

Chatham County. Within a few months of filing the original action,

the Joyners decided to also sue Memorial Health University Medical

Center, Inc. (“Memorial,” the nurses’ employer) and MPPG

(Leaphart’s employer). Instead of seeking to add these defendants to

the original action then pending in Chatham County, the Joyners

filed two new actions in Fulton County: the first against Memorial

on November 23, 2016,3 and the second against MPPG on December

21, 2016. Neither defendant was sued in the original action. 4 The

Joyners contend they did this because their attorneys were in

Atlanta, electronic filing was not yet available in the State Court of

Chatham County, and they believed their claims were about to

become time-barred. The complaints filed in each of the three civil

3 Memorial is not a party to this appeal.
4 Only Memorial is named as a defendant in the second action, and only
MPPG is named as a defendant in the third action. The Joyners insist that
neither Memorial nor MPPG were named as defendants in the first action,
though some of the corporate names appear similar. In its dismissal order, the
trial court’s analysis assumes that neither Memorial nor MPPG had been
named in the complaint which initiated the original action.

3
actions arose from the same events surrounding the infant’s death,

made similar allegations of negligence, and posed similar claims for

relief. However, each complaint sought relief from different

defendants.5

The Chatham County court entered a consent order on April

26, 2017, which authorized the Joyners to file an amended complaint

adding Memorial and MPPG as defendants in the original action.

Then on May 5, 2017, before adding Memorial and MPPG to the

Chatham County action, the Joyners dismissed the Fulton County

actions – the lawsuit against Memorial first and, a few minutes

later, the lawsuit against MPPG. On October 12, 2017, Leaphart and

MPPG moved to dismiss the Chatham County action, invoking the

two-dismissal rule of OCGA § 9-11-41 (a) (3) and arguing that the

Joyners’ notices of voluntary dismissal in the two later-filed Fulton

County actions resulted in an adjudication on the merits of the

5 The record shows that, in support of their wrongful death cause of
action, the Joyners asserted claims against Leaphart for medical malpractice.
The Joyners sued Memorial and MPPG for negligence, gross negligence,
tortious acts and omissions, and negligent hiring, supervision, retention,
credentialing, re-credentialing, and entrustment.
4
claims against Leaphart and MPPG, requiring their dismissal from

the pending Chatham County action on res judicata grounds.

Before ruling on the motion to dismiss, the Chatham County

court stayed the action so the Joyners could move to withdraw or to

set aside their voluntary dismissals of the Fulton County actions.

The Fulton County court denied the Joyners’ motions. The Joyners

appealed, but the Court of Appeals dismissed the appeal as untimely

and for failure to follow the discretionary appeal procedure. The

Chatham County court then lifted its stay, granted the motion to

dismiss, and entered a final judgment in favor of defendants

Leaphart and MPPG, which the Court of Appeals affirmed. See

Joyner, 358 Ga. App. at 384 (1).

The Court of Appeals stated that OCGA § 9-11-41 is the statute

governing voluntary dismissals and that “the filing of a second

notice of [voluntary] dismissal operates as an adjudication upon the

merits.” Joyner, 358 Ga. App. at 384 (2) (citing OCGA § 9-11-41 (a)

(3)). According to the Court of Appeals, “before amending the

Chatham County lawsuit to add [Memorial and MPPG], the Joyners

5
made their fatal mistake. In what appears to have been intended as

a step in implementing the parties’ agreement, they voluntarily

dismissed the two Fulton County lawsuits.” Id. at 384 (1). The Court

of Appeals reasoned:

“[U]nder OCGA § 9-11-41 (a) (3), a plaintiff who has
voluntarily dismissed a complaint two times is barred by
the res judicata effect of that provision from” pursuing a
third complaint. Cracker Barrel Old Country Store v.
Robinson, 341 Ga. App. 285, 286 (800 SE2d 372) (2017).
That rule “applies when an action seeking recovery on the
same claim was brought and dismissed twice, regardless
of the parties named as defendants.” Walker v. Mecca, 320
Ga. App. 142, 143 (739 SE2d 450) (2013). Presiding Judge
Barnes concurred fully and specially in Walker,
acknowledging that the holding we reaffirmed in that
case was compelled by the “language and structure of
OCGA § 9-11-41” but urging “the General Assembly [to]
amend OCGA § 9-11-41 so that the ‘two dismissal’ rule
applies only to the same or substantially the same
defendant.” Walker, 320 Ga. App. at 144 (Barnes, P. J.,
concurring fully and specially). She urged that so limiting
the rule would be consistent with the commonly
understood public policy behind the rule: preventing
harassment of a defendant with repeated lawsuits. Id. at
145. And she urged that “application of the ‘two dismissal’
rule to unrelated defendants is inconsistent” with our
understanding of the closely related renewal statute,
OCGA § 9-2-61 – that “the second-filed suit must involve
the same or ‘substantially identical’ defendants for the
privilege of renewal to be exercised.” Id. at 146.

(Punctuation omitted.) Joyner, 358 Ga. App. at 384-385 (2). Applying

6
this rationale and its precedent, and noting that the General

Assembly had not amended OCGA § 9-11-41 (a) (3) as Presiding

Judge Barnes urged in Walker, the Court of Appeals held that “the

rule that a second notice of voluntary dismissal of the same claim

operates as an adjudication upon the merits, regardless of the

parties named as defendants, remains the law[,]” and affirmed the

trial court’s dismissal order. Joyner, 358 Ga. App. at 385 (2).

2. Analysis.

(a) The two-dismissal rule. OCGA § 9-11-41 (a),6 which governs

6 OCGA § 9-11-41 (a) provides:
(a) Voluntary dismissal; effect:
(1) By plaintiff; by stipulation. Subject to the provisions of
subsection (e) of Code Section 9-11-23, Code Section 9-11-66, and
any statute, 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; or
(B) By filing a stipulation of dismissal signed by all parties
who have appeared in the action.
(2) By order of court. Except as provided in paragraph (1) of
this subsection, an action shall not be dismissed upon the
plaintiff’s motion except upon order of the court and upon the
terms and conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service upon him or
her of the plaintiff’s motion to dismiss, the action shall not be
dismissed against the defendant’s objection unless the
counterclaim can remain pending for independent adjudication by
the court.

7
voluntary dismissals, provides that filing a second notice of

dismissal of an action operates as an adjudication upon the merits

of that action. See OCGA § 9-11-41 (a) (3). The plain text of the

statute provides that the two-dismissal rule applies to actions, not

to claims. This was not always the case.

In 1966, the General Assembly enacted the Civil Practice Act.

See Ga. L. 1966, pp. 609-691.7 The first iteration of the voluntary

(3) Effect. A dismissal under this subsection is without
prejudice, except that the filing of a second notice of dismissal
operates as an adjudication upon the merits.
7 Prior to the passage of the Civil Practice Act, Georgia statutes

governing voluntary dismissals did not limit the number of times a plaintiff
could voluntarily dismiss an action. Rather, a plaintiff had a qualified right to
dismiss an action as long as it did not result in prejudice to the defendant. See
Ga. Code of 1933 § 3-510 (“The plaintiff in any action, in any court, may dismiss
his action either in vacation or term time, if he shall not thereby prejudice any
right of the defendant, and if done in term time, the clerk of the court or justice
of the peace shall enter such dismissal on the docket. After a plea of set-off or
otherwise shall have been filed, the plaintiff may not dismiss his action so as
to interfere with said plea, unless by leave of the court on sufficient cause
shown, and on terms prescribed by the court. (Act 1843, Cobb, 475.)”); Ga. Code
of 1910 § 5548 (“A petitioner may dismiss his petition at any time, either in
term or vacation, so that he does not thereby prejudice any right of the
defendant. If claims by way of set-off or otherwise have been set up by the
answer, the dismissal of the petition shall not interfere with the defendant’s
right to a hearing and trial on such claims in that proceeding.”). See also Ga.
Code of 1933 § 3-308 (“If a plaintiff shall be nonsuited, or shall discontinue or
dismiss his case, and shall recommence within six months, such renewed case
shall stand upon the same footing, as to limitation, with the original case; but
this privilege of dismissal and renewal shall be exercised only once under this

8
dismissal rule provided in pertinent part that “[a] dismissal under

this paragraph is without prejudice, except that a notice of dismissal

operates as an adjudication upon the merits when filed by a plaintiff

who has twice dismissed in any court an action based on or including

the same claim.” (Emphasis supplied.) Ga. L. 1966, p. 653, § 41 (a).

Then, in 1985, the General Assembly repealed and replaced OCGA

§ 9-11-41 (a). See Ga. L. 1985 pp. 546-547, §§ 1-2. The new subsection

(a) did not include the language “an action based on or including the

same claim,” and provided that “[a] dismissal under this subsection

section. (Act 1847, Cobb, 569. Acts 1855-6, p. 235.)”). These early statutes
derived in part from the common law. See Hospital Authority of Emanuel
County v. Gray, 123 Ga. App. 415, 417 (1) (181 SE2d 299) (1971) (Pannell, J.,
concurring specially) (discussing how § 5548 of the Georgia Code of 1910 “was
derived in part from a blending of the common law rule and the statute law
rule” (citation omitted)). At common law, a plaintiff could voluntarily withdraw
an action, so long as it did not prejudice the defendant or amount to a
renunciation of the plaintiff’s cause of action. The qualified right of a plaintiff
to unilaterally and voluntarily withdraw an action without prejudice (as
opposed to making a “retraxit,” which was an open, public, and voluntary
renunciation by the plaintiff of his cause of action) had been a long-standing
tradition of the common law. See Harvey v. Boyd, 24 Ga. App. 561, 561 (101 SE
708) (1919) (“At common law a retraxit differed from a voluntary withdrawal
by the plaintiff of his action, in that a retraxit terminated both the action and
the right of action, while such a withdrawal terminated the action only, leaving
in the plaintiff the right to recommence his suit upon the same alleged right.
The pending action was dismissed as effectively by the one as by the other.
Neither could be entered except in open court, nor even then without leave of
the court, nor at all if it worked prejudice to any other party, either defendant
or [co-plaintiff].”).
9
is without prejudice, except that the filing of a third notice of

dismissal operates as an adjudication upon the merits.” Id. at p. 546-

547 § 1 (codified as OCGA § 9-11-41 (a) (1985)). Finally, in 2003, the

General Assembly amended the voluntary dismissal rule so that it

applied to a second, instead of a third, notice of dismissal. See Ga.

L. 2003, p. 824, § 4 (codified as OCGA § 9-11-41 (a) (3)).

The General Assembly has not amended the two-dismissal rule

to reinstate the “same claim” language, and the current rule thus

provides that “[a] dismissal [of an action] under this subsection is

without prejudice, except that the filing of a second notice of

dismissal [of an action] operates as an adjudication upon the

merits.” (Emphasis supplied.) OCGA § 9-11-41 (a) (3). The language

“this subsection” references subsection (a), which, in turn, provides

for the voluntary dismissal by a plaintiff of “an action,” making it

clear that the General Assembly meant the two-dismissal rule to

apply to the plaintiff’s entire action, not to individual claims. 8 As

8 In contrast, OCGA § 9-11-41 (d), which pertains to the payment of costs
of a previously dismissed action, provides: “If a plaintiff who has dismissed an
action in any court commences an action based upon or including the same

10
used in Title 9, an “action” is simply “the judicial means of enforcing

a right.” OCGA § 9-2-1 (1). Thus, in considering whether to grant

Leaphart and MPPG’s motion to dismiss, the trial court’s first step

was to determine whether the Joyners had twice dismissed the same

action. That does not end the inquiry, however.

Although the text of the two-dismissal rule plainly provides

that the filing of a second notice of dismissal operates as an

adjudication upon the merits, it does not expressly provide that a

second voluntary dismissal of an action shall be conclusive as to

matters in a third action or that a second dismissal of the same

action has res judicata effect. See OCGA § 9-11-41 (a) (3). Put

claim against the same defendant, the plaintiff shall first pay the court costs
of the action previously dismissed.” This subsection does not invoke the law of
res judicata. Instead, “[t]he payment of costs in the dismissed suit is a
precondition to the filing of the second suit. [I]f costs are not paid prior to filing
then the second suit is not a valid pending action.” (Citations and punctuation
omitted.) Foster v. Bowen, 253 Ga. 33, 34 (315 SE2d 656) (1984). This is
because, unlike res judicata, “payment of costs in a dismissed action is not an
affirmative defense but a jurisdictional matter which may never be waived.”
Tucker v. Mitchell, 252 Ga. 545, 545 (314 SE2d 896) (1984). Because these
subsections deal with different matters, we see no merit to the appellees’
argument that the General Assembly’s use of the “same defendant” language
in subsection (d), but not in subsection (a), indicates that subsection (a) “should
be read more broadly to apply to instances in which a plaintiff dismisses his or
her action twice[,] regardless of whether those dismissal[s] were against the
same defendant.”
11
another way, a party cannot simply plead OCGA § 9-11-41 (a) (3) as

a defense in a separate action. Instead, “adjudication on the merits”

is a legal term of art that invokes and is a component of the defense

of res judicata. See Western Group Nurseries, Inc. v. Ergas, 211

FSupp.2d 1362, 1368 (S.D. Fla. 2002) (“The [federal] two dismissal

rule does not bar a subsequent suit, but instead merely states that

when the rule applies, the dismissal of the second suit operates as

an adjudication on the merits; once there is an adjudication on the

merits, it is the doctrine of res judicata which bars subsequent suits

on the same cause of action.” (citations omitted)). Therefore, after a

trial court determines that the two-dismissal rule applies and that

the second voluntary dismissal results in an adjudication on the

merits, the trial court must then evaluate whether that adjudication

bars the third action (in this case, the pending action) by applying

the law of res judicata.

(b) Res judicata. It is well established that, under Georgia law,

“[t]hree prerequisites must be satisfied before res judicata applies –

(1) identity of the cause of action, (2) identity of the parties or their

12
privies, and (3) previous adjudication on the merits by a court of

competent jurisdiction.” (Citations omitted.) Coen v. CDC Software

Corp., 304 Ga. 105, 112 (2) (816 SE2d 670) (2018). See also OCGA §

9-12-40.9 Normally, “[f]or a former judgment to be a bar to a

subsequent action, the merits of the case must have been

adjudicated,” OCGA § 9-12-42, and when an action is voluntarily

dismissed, the court does not address its merits. But OCGA § 9-11-

41 (a) (3) changes that principle for a second such dismissal,

deeming it an “adjudication on the merits” as a matter of law.

However, when a defendant shows that a plaintiff has filed in

a court of competent jurisdiction a second notice voluntarily

dismissing an action pursuant to OCGA § 9-11-41 (a), the defendant

has satisfied just one of the three criteria of a res judicata defense –

a previous adjudication on the merits by a court of competent

9 OCGA § 9-12-40 provides: “A judgment of a court of competent
jurisdiction shall be conclusive between the same parties and their privies as
to all matters put in issue or which under the rules of law might have been put
in issue in the cause wherein the judgment was rendered until the judgment
is reversed or set aside.” Although this Code section is not a part of the Civil
Practice Act, it is a part of Title 9 of the Civil Practice Code, and it predated
the adoption of the Civil Practice Act. See Orig. Code 1863, § 3496.
13
jurisdiction. Thus, to obtain a dismissal of the third action, the

defendant must do more than simply assert that the plaintiff has

twice voluntarily dismissed a prior action. The defendant must

demonstrate that the third action is barred by the doctrine of res

judicata by showing that the other two prerequisites of the res

judicata defense have been satisfied. See Fowler v. Vineyard, 261

Ga. 454, 456-457 (2), (3) (405 SE2d 678) (1991) (determining that a

voluntary dismissal with prejudice under OCGA § 9-11-41 (a)

operated as an adjudication on the merits “for purposes of res

judicata” and then “examin[ing] whether the prior action and the

[third] action involve an identity of parties and subject matter[10]”).

See also Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga.

209, 211-212 (2) (528 SE2d 508) (2000) (“We hold expressly that the

effect of a voluntary dismissal [with prejudice] does not extend to

any party not named therein.”); Rowland v. Vickers, 233 Ga. 67, 68

10 “[A]lthough we have occasionally been imprecise and inconsistent with
the terms ‘subject matter’ and ‘cause of action,’ we have actually been looking
to the ‘entire set of facts which give rise to an enforceable claim’ to determine
whether res judicata has been triggered.” Coen, 304 Ga. at 110 (2) (footnote
omitted)).
14
(209 SE2d 592) (1974) (“The dismissal of an action against a

defendant with prejudice even when a consideration is paid by such

defendant to the dismissing party, does not, as a matter of law,

adjudicate all issues in the case. Such a dismissal merely means that

the same plaintiff cannot again sue that same defendant on that

same cause of action.”).

In this case, to show that the doctrine of res judicata required

that they be dismissed from the pending Chatham County action,

Leaphart and MPPG had to show – in addition to an adjudication on

the merits under the two-dismissal rule – that they were parties or

privies in an action that had been twice voluntarily dismissed. 11 We

note that Georgia law on this point is largely in accord with federal

law, 12 even though Federal Rule of Civil Procedure 41 (a) (1) includes

11 The parties do not dispute that the Joyners’ cause of action for the
wrongful death of their newborn son is the same in each action.
12 See, e.g., American Cyanamid Co. v. Capuano, 381 F3d 6, 17 (II) (B)

(1st Cir. 2004) (“The ‘two dismissal’ rule is not applicable unless the defendants
are the same or substantially the same or in privity in both actions.” (citation
and punctuation omitted)); St. Clair Intellectual Property Consultants, Inc. v.
Samsung Electronics Co. Ltd., 291 FRD 75, 77 (II) (B) (D. Del. 2013) (The “‘two
dismissal’ rule means that a second voluntary dismissal serves as an
‘adjudication upon the merits’ and the doctrine of res judicata applies.”); see

15
the “same claim” language that was removed from the Georgia

statute in 1985.13 Further, the requirement that the defendants in

the actions compared be the same or in privity is in accord with the

law construing Georgia’s renewal statute, OCGA § 9-2-61. 14 Well-

settled precedent holds that, “[t]o be a good ‘renewal’ of an original

suit, so as to suspend the running of the statute of limitations . . . ,

the new petition must be substantially the same both as to the cause

of action and as to the essential parties.” Sheldon & Co. v. Emory

also Eric C. Surette, “Construction and Application of Two-Dismissal Rule
Under Federal Law.” 10 ALR Fed. 3d Art. 4. (II) (C) (2) § 35 (2016) (defendants
must be same or substantially the same or in privity in related actions for the
federal two-dismissal rule to apply); Matthew Bender, 8 MOORE’S FEDERAL
PRACTICE § 41.33 [7] (2022) (operation of the federal two-dismissal rule).
13 Federal Rule of Civil Procedure 41 (a) (1) (B) provides: “Effect. Unless

the notice or stipulation states otherwise, the dismissal is without prejudice.
But if the plaintiff previously dismissed any federal- or state-court action based
on or including the same claim, a notice of dismissal operates as an
adjudication on the merits.”
14 OCGA § 9-2-61 provides, in pertinent part:

(a) When any case has been commenced in either a state or
federal court within the applicable statute of limitations and the
plaintiff discontinues or dismisses the same, it may be
recommenced in a court of this state or in a federal court either
within the original applicable period of limitations or within six
months after the discontinuance or dismissal, whichever is later,
subject to the requirement of payment of costs in the original
action as required by subsection (d) of Code Section 9-11-41;
provided, however, if the dismissal or discontinuance occurs after
the expiration of the applicable period of limitation, this privilege
of renewal shall be exercised only once.
16
University, 184 Ga. 440, 440-441 (1) (191 SE 497) (1937). See also

Gish v. Thomas, 302 Ga. App. 854, 861-862 (3) (691 SE2d 900) (2010)

(“Long-standing and well-settled precedent establishes that in a

renewal action the cause of action must be substantially the same

as in the original action and there must also be a substantial identity

of essential parties.” (citations and punctuation omitted)).

(c) Remand. In holding that the Joyners’ Chatham County

action against Leaphart and MPPG was barred by the two-dismissal

rule because it sought “recovery on the same claim [that] was

brought and dismissed twice [in Fulton County], regardless of the

parties named as defendants,” the Court of Appeals erred. It relied

on precedent from that court that erroneously held that, so long as

the second voluntarily dismissed action and the pending action

shared common claims, the two-dismissal rule had “res judicata

effect” that required the pending action to be dismissed. Not only did

this precedent fail to properly apply the law of res judicata, it applied

a former version of OCGA § 9-11-41 (a) (3), a version that contained

17
the subsequently deleted “same claim” language. 15 Therefore, we

reverse Division 2 of the Court of Appeals’ opinion, vacate the

remainder of the opinion, and remand with instruction that the case

be remanded to the trial court to reconsider, in light of this opinion,

Leaphart and MPPG’s motion to dismiss. 16

Judgment reversed in part and vacated in part, and case
remanded. All the Justices concur, except Colvin, J., disqualified.

15 In this case, the Court of Appeals relied on Walker, 320 Ga. App. at
143, which in turn relied on Belco Elec. v. Bush, 204 Ga. App. 811 (420 SE2d
602) (1992). Belco, which was decided after the 1985 statutory amendment,
relied on Harris v. Sampson, 162 Ga. App. 241 (290 SE2d 165) (1982). Harris
was decided under the original version of the two-dismissal rule that contained
the “same claim” language. Any Court of Appeals case that holds or implies
that the two-dismissal rule affords a second dismissal of an action preclusive
effect, even though each of the prerequisites of the law of res judicata have not
been satisfied, is hereby overruled. These cases include Walker, 320 Ga. App.
at 143 (The two-dismissal rule has preclusive effect and “applies when an
action seeking recovery on the same claim was brought and dismissed twice,
regardless of the parties named as defendants.”) and Belco Elec., 204 Ga. App.
at 815 (The two-dismissal rule “is designed to prevent a plaintiff from
repeatedly filing actions for the same claim against any defendant, not only
previously named defendants.”).
16 In its order granting Leaphart and MPPG’s motion to dismiss, the trial

court determined that the Joyners had voluntarily filed a second notice
dismissing the same action, resulting in an adjudication on the merits
pursuant to OCGA § 9-11-41 (a) (3). However, it did not engage in a res judicata
analysis comparing the voluntarily dismissed action with the pending
Chatham County action. Also, although the trial court assumed that neither
Memorial nor MPPG had been named as defendants in the complaint which
initiated the original action, it did not address whether Memorial or MPPG
were in privity with any of the defendants sued in the Chatham County action.
18