dissenting.
I respectfully dissent. As held in Walden v. Shelton,5 although OCGA § 9-11-11.1 mandates the imposition of an appropriate sanction, it allows the trial court the discretion to choose from various options in fashioning the form of that sanction. Nevertheless, disapproving Walden, the majority takes that discretion out of the hands of the trial court and mandates that the form of the sanction here must *685include the imposition of reasonable expenses. I respectfully disagree and would rule that Walden was rightly decided.
The majority twice quotes the pertinent language of OCGA § 9-11-11.1 (b), each time italicizing the word “shall” and notably not italicizing the word “may.” Italicizing both words places the matter in better context:
If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
(Emphasis supplied.) OCGA § 9-11-11.1 (b). Thus, the statute is clear: where a claim is wrongfully verified, the court shall impose an appropriate sanction. The word “appropriate” clearly connotes that the court has discretion as to the form of this sanction. This connotation is confirmed by the statute’s description of the possible forms of that sanction, which may include dismissal of the claim (with no reference to whether that dismissal be with or without prejudice) and may also include an order to pay reasonable expenses, which expenses may include reasonable attorney fees. The majority bypasses all the discretionary “may” and “appropriate” language and mandates instead here that the sanction must include an award of reasonable expenses.
I believe this approach ignores the clear intent of the plain language used in the statute, which contemplated that the trial court would exercise its discretion in fashioning an appropriate sanction. Although the statute sets forth possible forms of that sanction, it does not require that the court impose a particular form of that sanction. As stated in Walden, supra, 270 Ga. App. at 242:
While OCGA § 9-11-11.1 (b) states that the trial court shall impose an appropriate sanction, it further states such sanction may include dismissal of the claim and an order to pay expenses and attorney fees. To construe the statute as mandating the award of attorney fees upon a finding that the claim was verified in violation of the Code section, renders the words, “which may include,” meaningless. It is clear from the language of the statute, that the legislative *686intent was to grant the trial court discretion, under the facts and circumstances of each case, in awarding attorney fees and expenses.Decided March 28, 2008. Jenkins & Olson, Peter R. Olson, for appellant. Smith, Curry & Hancock, Philip E. Beck, Helen H. Pope, for appellee.
(Emphasis in original.) Cf. Hagemann v. City of Marietta6 (“[i]f a claim is verified in violation of the anti-SLAPP statute, the court, upon motion or upon its own initiative, is authorized [not mandated] to grant ‘the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney fee’ ”) (punctuation omitted; emphasis supplied).
Here, the trial court held a hearing on the matter and determined that under the circumstances of this case, the dismissal of the claim sufficed as a sanction. The majority and defendant Hagemann lament that the dismissal was effectuated by the plaintiff Wynhaven rather than by the court. Apparently, Hagemann feels that he was cheated of the psychic pleasure of having the trial court forcibly dismiss the complaint as opposed to observing Wynhaven capitulate to his demands for a dismissal. I do not perceive a party’s psychic or pecuniary desire for a particular form of a sanction as a basis for forcing the trial court to impose attorney fees, especially in light of the trial court’s decision that the dismissal itself was a sufficiently appropriate sanction (even if technically effectuated by the plaintiffs hand).
For these reasons, I respectfully dissent.
I am authorized to state that Judge Mikell joins in this dissent.
Walden v. Shelton, 270 Ga. App. 239, 242 (606 SE2d 299) (2004).
Hagemann v. City of Marietta, 287 Ga. App. 1, 8 (2) (650 SE2d 363) (2007).