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CARLEY, Justice.
Pursuant to OCGA 23-3-60 et seq., George and Barbara Woelper filed a petition seeking to quiet title to an alleged underground easement by implication running beneath land belonging to Piedmont Cotton Mills, Inc. (Piedmont). The special master's report concluded that the Woelpers were not entitled to relief, because their complaint contained no description of the land and did not, therefore, comply with the requirements of OCGA 23-3-62 (b). The trial court adopted the special master's report and, on appeal, we affirmed. Woelper v. Piedmont Cotton Mills, 266 Ga. 472 (467 SE2d 517) (1996). Seeking declaratory and injunctive relief, the Woelpers then filed this action and included a description of the property in their petition. Compare Tootle v. Player, 225 Ga. 431, 432 (2) (169 SE2d 340) (1969) (new cause of action which was not and could not have been put in issue in the prior suit). Piedmont moved for summary judgment based upon the defense of res judicata. The trial court granted Piedmont's motion, but the Court of Appeals reversed. Woelper v. Piedmont Cotton Mills, 226 Ga. App. 337 (487 SE2d 5) (1997). According to the Court of Appeals, res judicata was not a viable defense because the Woelpers' first action was not adjudicated on the merits, but on technical grounds. We granted certiorari in order to determine what constitutes an "adjudication on the merits" for res judicata purposes.
OCGA 9-12-42 provides that,
[w]here the merits were not and could not have been in question, a former recovery on purely technical grounds shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.
(Emphasis supplied.) As the wording of this statute intimates, an "adjudication on the merits" does not require
" 'that the litigation should be determined on the merits, in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases. . . .' [Cits.]"
Gamble v. Gamble, 204 Ga. 82, 88-89 (1) (48 SE2d 540) (1948). See also OCGA 9-12-40. Thus, it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid. Compare Tootle v. Player, supra at 432 (2) (estoppel by judgment, unlike res judicata, applies only to matters which were directly decided in the former action).
The Woelpers' first action was not terminated by the grant of a dilatory plea, a dismissal for lack of jurisdiction or any other ruling which precluded a consideration of the merits of their claim. Compare National Heritage Corp. v. Mt. Olive Mem. Gardens, 244 Ga. 240 (260 SE2d 1) (1979) (grant of a dilatory plea); O'Kelley v. Alexander, 225 Ga. 32 (165 SE2d 648) (1969) (lack of jurisdiction to address merits based upon dismissal for failure to pay costs). The action was heard by a special master who had "complete jurisdiction within the scope of the pleadings" to determine the Woelpers' claim. OCGA 23-3-66. "Without submitting any questions of fact to a jury or requesting additional evidence, the special master concluded that the Woelpers were not entitled to the requested easement." Woelper v. Piedmont Cotton Mills, 266 Ga., supra at 473 (2). Upon receipt of the special master's award, the trial court issued a decree "which, when recorded, shall operate to bind the land affected according to the tenor thereof and shall be conclusive upon and against all persons named therein, known or unknown." OCGA 23-3-67. On appeal, we affirmed the judgment of the trial court, citing the Woelpers' "complete lack of diligence" in complying with OCGA 23-3-62 (b), as well as their failure to provide a transcript of the hearing before the special master which might have shown that the "easement was established through other evidence. . . ." Woelper v. Piedmont Cotton Mills, 266 Ga., supra at 473 (1), 474 (3).
Bird, 189 Ga. 105, 107 (5 SE2d 336) (1939). See also Dykes v. Dykes, 214 Ga. 288 (104 SE2d 430) (1958); Lankford v. Holton, 196 Ga. 631 (27 SE2d 310) (1943). Therefore, the trial court correctly granted Piedmont's motion for summary judgment in the Woelpers' second suit and the Court of Appeals erred in reversing that Correct ruling.
John B. Lyle, for appellees.
Barron & Barron, George L. Barron, Jr., Garlan L. Barron, for appellant.
Thursday May 21 03:50 EDT

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