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                               http://www.gaappeals.us/rules


                                                                 December 18, 2017




In the Court of Appeals of Georgia
 A17A1898. ANDERSON v. LEWIS, et al.

      ANDREWS, Judge.

      The appellant, Teena Anderson, commenced this action to recover for injuries

sustained when her automobile collided with a vehicle owned by Clarence Lewis and

driven by his grandson, Dana Brown. The trial court dismissed Brown as a party

because of lack of service and subsequently granted summary judgment for Lewis on

the grounds that Brown’s dismissal was fatal to the derivative liability claim against

Lewis under the family purpose doctrine. This appeal followed, and we reverse.

      Previously, on July 15, 2016, the trial court granted partial summary judgment

for Anderson against Lewis on the issue of liability under the family purpose

doctrine. Lewis appealed that judgment, but withdrew the appeal on October 21,

2016. On September 12, 2016, during the pendency of that appeal, the trial court sua
sponte set aside the July 15, 2016 judgment, and on September 14, 2016, entered

another grant of partial summary judgment for Anderson, modifying some of the

conclusions of law in the original judgment.

      Because Anderson was never able to locate and perfect service on Brown, on

September 26, 2016, the trial court dismissed Brown for Anderson’s failure to

exercise due diligence to ensure proper and timely service. Ultimately, on April 17,

2017, because of Brown’s dismissal from the case, the trial court granted summary

judgment for Lewis based on this Court’s decision in O’Hara v. Gilmore, 310 Ga.

App. 620 (713 SE2d 869) (2011). The trial court also clarified that Brown’s dismissal

was without prejudice.

      1. O’Hara involved a derivative liability claim against parents under the family

purpose doctrine, in which the daughter who drove the car was dismissed due to the

plaintiff’s failure to perfect service on her. In that case, this Court held that the

dismissal of the daughter barred judgment against the parents as a matter of law. Id.

at 622. As the procedural facts of the instant case and O’Hara are essentially the

same, the trial court did not err in following it. But Anderson contends the ruling in

O’Hara is inconsistent with the principles set forth by the Supreme Court in Hedquist



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v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga. 209, 210 (1) (528 SE2d 508)

(2000), and should be overruled. We agree.

      The family purpose doctrine arose from the principles of agency. Phillips v.

Dixon, 236 Ga. 271, 272 (223 SE2d 678) (1976). “The policy behind the origin of the

doctrine was the ever increasing number of automobile collisions and the frequency

with which the negligent driver was found to be judgment proof. In the case of a

family at least, this factor was minimized by finding liability as to the owner of the

car who allowed family members to use the car for family pleasures.” Id.

      The family car owner’s liability is vicarious. See Dashtpeyma v. Wade, 285 Ga.

App. 361 (646 SE2d 335) (2007). In Wilson v. Ortiz, 232 Ga. App. 191, 196 (3) (501

SE2d 247) (1998), this Court acknowledged that “where the liability of the master to

an injured third person is purely derivative and dependent entirely upon the doctrine

of respondeat superior, a judgment on the merits in favor of the servant and against

the third person is res judicata in favor of the master in a suit by such third person.”

But we held that a dismissal of the servant for insufficient service of process is not

an adjudication on the merits and does not bar an action against the master. In

Hedquist v. Merrill Lynch, supra at 210, the Supreme Court noted the holding in

Wilson v. Ortiz with approval and emphasized that only an adjudication on the merits,

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i.e., an actual determination of the absence of negligence of the servant, barred a

claim against a vicariously liable master.

      In the instant case, under the rulings in Hedquist v. Merrill Lynch and Wilson

v. Ortiz, the dismissal of Brown due to Anderson’s failure to perfect service on him

did not constitute an adjudication on the merits and provided no basis for granting

summary judgment for Lewis. To the extent this Court’s decision in O’Hara is

inconsistent with this holding, O’Hara is overruled.

      2. Anderson also contends the trial court’s orders entered on September 12,

2016, and September 14, 2016, setting aside and modifying the July 15, 2016 grant

of partial summary judgment for Anderson, were nullities because they were entered

during the pendency of Lewis’s appeal of the July 15, 2016 order. “A notice of appeal

divests the trial court of jurisdiction to supplement, amend, alter, or modify the

judgment while the appeal of that judgment remains pending.” (Citations omitted.)

McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010). As Lewis’s

appeal was pending from the filing of his notice of appeal on August 12, 2016, until

this Court granted his motion to withdraw the appeal on October 21, 2016, Anderson

is correct. Accordingly, the trial court’s order of July 15, 2016, granting partial

summary judgment to Anderson, remains in effect.

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      Judgment reversed. Dillard, C. J., Barnes, P. J., Miller, P. J., Ellington, P. J.,

Doyle, P. J., McFadden, P. J., Ray, Branch, McMillian, Rickman, Mercier, Reese,

Self, and Bethel, JJ., concur.




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