In the Supreme Court of Georgia



                                          Decided: May 23, 2016


                  S16A0071. DARLING v. MCLAUGHLIN.


      MELTON, Justice.

      On May 11, 2011, Thomas Darling pled guilty to felony murder for

having failed to promptly seek medical treatment for a minor child, and was

sentenced to life in prison. In November 2013, Darling filed a pro se petition for

habeas corpus relief challenging the voluntariness of his plea. At an evidentiary

hearing held on August 27, 2014,1 Darling’s plea counsel, among other

witnesses, testified. The habeas court granted the parties 60 days to file post-

hearing briefs, and on October 20, 2014, Terry J. Marlowe entered an

appearance as counsel for Darling. On November 3, 2014, Marlowe filed on

Darling’s behalf a motion to dismiss Darling’s pro se petition without prejudice,

pursuant to OCGA § 9-11-41 (a) (2) (“Except as provided in paragraph (1) of

this subsection, an action shall not be dismissed upon the plaintiff's motion


      Due to scrivener’s error, the face of the transcript states that the date
      1


was August 26, 2014.
except upon order of the court and upon the terms and conditions as the court

deems proper”). In the motion, Marlowe claimed that testimony at the

evidentiary hearing revealed that plea counsel coerced Darling’s plea by

misrepresenting the date at which Darling would become parole eligible. In

response to this motion, the Warden relied on OCGA § 9-11-41 (a) (1), which

allows a plaintiff to voluntarily dismiss his or her case “[b]y filing a written

notice of dismissal at any time before the first witness is sworn; or . . . [b]y filing

a stipulation of dismissal signed by all parties who have appeared in the action.”

Relying solely on OCGA § 9-11-41(a) (1) in its order, the habeas court denied

Darling’s motion, finding that witnesses had been sworn and had provided

testimony at the evidentiary hearing, and that the Warden had not agreed to

dismissal.

      This Court granted Darling’s application for a Certificate of Probable

Cause to appeal to determine whether the habeas court abused its discretion by

relying on OCGA § 9-11-41(a) (1) to deny Darling’s motion to dismiss when

the motion to dismiss was made pursuant to OCGA § 9-11-41(a) (2). For the

reasons that follow, we must vacate the habeas court’s order and remand this

case to the habeas court for consideration of Darling’s motion to dismiss

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pursuant to the terms of OCGA § 9-11-41 (a) (2).

      By its plain terms, OCGA § 9-11-41 provides three distinct methods by

which a plaintiff may voluntarily dismiss his or her case without prejudice. The

first two methods are provided in OCGA § 9-11-41 (a) (1), which states:

      Subject to the provisions of subsection (e) of Code Section 9-11-23
      [dismissal of class actions], Code Section 9-11-66 [dismissals in
      actions where a receiver has been appointed], 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.

However subsection (a) (1) does not provide the only means by which an action

may be voluntarily dismissed under OCGA § 9-11-41. A third method is

provided in subsection (a) (2) of the statute:

      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.

Reading these two provisions together, where, as here, the case does not involve

a class action, an appointed receiver, another statute that provides otherwise, or

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a counterclaim pleaded by a defendant prior to that defendant being served with

the plaintiff’s motion to dismiss, a plaintiff may voluntarily dismiss his or her

case without prejudice (1) by filing a notice of dismissal at any time before the

first witness is sworn; (2) by stipulation of the parties; or, when the first two

methods are unavailable, (3) “upon order of the court and upon the terms and

conditions as the court deems proper.” See OCGA §§ 9-11-41 (a) (1) and (a) (2).

      In the instant case, because witnesses had already been sworn at the

hearing on Darling’s pro se petition for habeas corpus relief, and because the

parties had not stipulated to the voluntary dismissal of Darling’s case, the means

of voluntary dismissal described in OCGA § 9-11-41 (a) (1) were unavailable

to him. However, this did not foreclose Darling from seeking to voluntarily

dismiss his petition pursuant to the terms of OCGA § 9-11-41 (a) (2), which is

exactly what he did. Because the habeas court only considered the factors

outlined in OCGA § 9-11-41 (a) (1) to determine whether Darling’s voluntary

dismissal was proper, however, it did not analyze whether voluntary dismissal

might otherwise be available “upon order of the court and upon the terms and

conditions as the court deems proper” pursuant to OCGA § 9-11-41 (a) (2).

Accordingly, we must vacate the habeas court’s order denying Darling’s motion

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to voluntarily dismiss his case and remand this case to the habeas court for a

proper consideration of the motion under the terms of OCGA § 9-11-41 (a) (2).

      Judgment vacated and case remanded with direction. All the Justices

concur.




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