                              FIFTH DIVISION
                               PHIPPS, P. J.,
                        DILLARD and PETERSON, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 3, 2016




In the Court of Appeals of Georgia
 A16A0481. BROCK v. C & M MOTORS, INC.                                       PE-021

      PETERSON, Judge.

      Yolanda Brock appeals the trial court’s orders granting defendant C & M

Motors, Inc. (“C & M”)’s plea in abatement and awarding attorneys’ fees to C & M.

She argues that the trial court erred in (1) finding that she could not maintain her

renewal action given the pendency of an action she filed previously; and (2) awarding

$2,885 in attorneys’ fees. Because the pendency of the original action was not a basis

to dismiss Brock’s claims, we reverse the trial court’s order granting the plea in

abatement. Because the award of fees appears to be based at least in part on that

erroneous dismissal, we vacate the fee award.

      Brock sued C & M in April 2012 (“the First Case”), alleging breach of

contract, fraud, and other claims in connection with her purchase of a car from C &
M. C & M filed an answer that included a counterclaim for breach of contract against

Brock, along with a request for admissions. Nearly two years later, on July 21, 2014,

Brock filed a notice that she was dismissing her case without prejudice to refiling.

Two days later, Brock filed a motion to “rescind” her dismissal of the case and

reinstate her claims, explaining that she “mistakenly requested a dismissal without

prejudice without realizing the existence of a counterclaim.” On that same day, Brock

filed a notice saying she had sent C & M responses to its request for admissions. On

August 1, 2014, C & M made separate filings indicating that it (1) intended to

proceed on its counterclaim notwithstanding the dismissal of Brock’s claims and (2)

objected to Brock’s motion to rescind her dismissal. C & M posited that Brock had

initially attempted to dismiss her suit in a (misguided) attempt to avoid the

consequences of having failed to respond to C & M’s request for admissions. After

a hearing, the trial court denied Brock’s motion to rescind her dismissal, saying

Brock’s failure to notice the existence of C & M’s counterclaim was not a reason to

grant her motion to rescind.

      Brock then tried unsuccessfully to reinstate her suit through a new action. On

January 21, 2015, Brock filed a renewal action (“the Second Case”), raising the same

claims as in her original suit. C & M filed a plea in abatement, arguing that the case

                                          2
should be terminated because it was duplicative of the First Case and prohibited by

OCGA §§ 9-2-5 and 9-2-44. The trial court granted the motion. Brock filed a notice

of appeal.

      While this appeal was pending, C & M filed a motion seeking $2,885 in costs

and attorneys’ fees under OCGA § 9-15-14. C&M argued that Brock’s claim of a

right to file a renewal action lacked substantial justification and the filing of the

duplicative action abused the litigation process. The trial court granted the motion.

Brock filed an amended notice of appeal.

      1. Brock argues that the trial court erred in dismissing her renewal action

because (1) C & M failed to preserve its counterclaim; and (2) even if C & M

preserved its counterclaim, OCGA § 9-2-61 does not prohibit the filing of a renewal

action and, therefore, her renewal action is not subject to abatement under OCGA §§

9-2-5 and 9-2-44. Assuming without deciding that C & M preserved its counterclaim,1

we agree with Brock that her renewal action was not subject to abatement.

      Consistent with the position taken by Brock in her appeal, the trial court held

that under OCGA § 9-2-61, Brock was “entitled to file a renewal of her voluntarily

      1
        Brock argues that C & M failed to preserve its counterclaim because it did not
properly object to her voluntary dismissal of her suit and then contested her motion
to rescind her dismissal.

                                          3
dismissed action.” Therefore, the question before us is whether the trial court

nonetheless properly granted C & M’s plea in abatement as filed under OCGA §§ 9-

2-5 and 9-2-44. C & M’s plea in abatement was akin to a motion to dismiss, and we

review a trial court’s ruling on a motion to dismiss under the de novo standard of

review. See Sadi Holdings, LLC v. Lib Props., Ltd., 293 Ga. App. 23, 24 (666 SE2d

446) (2008) (reviewing dismissal under prior pending action doctrine).

      OCGA § 9-2-5(a) provides:

      No plaintiff may prosecute two actions in the courts at the same time for
      the same cause of action and against the same party. If two such actions
      are commenced simultaneously, the defendant may require the plaintiff
      to elect which he will prosecute. If two such actions are commenced at
      different times, the pendency of the former shall be a good defense to
      the latter.


OCGA § 9-2-44(a) says:

      A former recovery or the pendency of a former action for the same cause
      of action between the same parties in the same or any other court having
      jurisdiction shall be a good cause of abatement. However, if the first
      action is so defective that no recovery can possibly be had, the pendency
      of a former action shall not abate the latter.




                                          4
The two statutes “are closely related in effect and are to be considered and applied

together.” Aiken Dermatology & Skin Cancer Clinic, P.A. v. Davlong Systems, Inc.,

314 Ga. App. 699, 703 (2) (725 SE2d 835) (2012) (citation and punctuation omitted).

“[T]he general rule under these provisions is that when there are two lawsuits

involving the same cause of action and the same parties that were filed at different

times but that both remain pending in Georgia courts, the later-filed suit must be

dismissed.” Id. (citation and punctuation omitted). The purpose of the rule “is to

ensure judicial economy, to avoid inconsistent judgments, and to prevent harassment

of the parties through multiple proceedings.” Jenkins v. Crea, 289 Ga. App. 174, 176

(656 SE2d 849) (2008) (footnote omitted); see also DOCO Credit Union v.

Chambers, 330 Ga. App. 633, 636 (1) (768 SE2d 808) (2015) (rule is “rooted in

recognition of the fact that no one should be twice harassed, if it appears to the Court

that it is for one and the same cause”) (footnote, punctuation, and emphasis omitted).

       It is not clear whether C & M bases its position that the Second Case was due

to be abated on the fact that Brock brought identical claims in the First Case, on the

fact that C & M’s counterclaim remains pending in the First Case, or both. In pressing

its plea in abatement, C & M emphasized both that the two cases involved “the same

parties, the same transaction, the same claims, and the same issues for adjudication”

                                           5
and that the First Action was still pending. After reciting the parties’ arguments, the

trial court noted that a counterclaim was pending in the First Case and concluded

without further analysis that it was persuaded by C & M’s arguments. But neither the

identical nature of Brock’s claims originally present in both cases nor the pendency

of a counterclaim was cause for abatement here.

       By its terms, OCGA § 9-2-5(a) precludes simultaneous prosecution of the

same claims. Of course, Brock is not prosecuting the same claims simultaneously,

given that she dismissed her claims in the First Case. OCGA § 9-2-44(a) refers to a

“former recovery or the pendency of a former action for the same cause of action.”

The First Case cannot be said to have produced any “recovery” for Brock. And by the

terms “pendency of a former action for the same claim,” OCGA § 9-2-44(a) provides

for abatement based on a claim that is still pending. The term “pendency” refers to

“the state of being pendent or undecided; the state of an action . . . after it has been

begun, and before the final disposition of it.” Black’s Law Dictionary 1134 (6th ed.

1990). That § 9-2-44(a)’s use of the term pendency refers to a claim that is still

pending is confirmed by the use of the present tense in the second sentence of the

subsection. See OCGA § 9-2-44(a) (“if the first action is so defective that no recovery

can possibly be had, the pendency of a former action shall not abate the latter”).

                                           6
Clearly, Brock’s claims cannot be said to be pending in the First Case. Although C

& M makes much of the pendency of its counterclaim in the First Case, that claim is

wholly different from Brock’s claims in the Second Case, and the fact that the

counterclaim remains pending does not change our analysis. The trial court erred in

finding that Brock’s claims in the Second Case were abated by the First Case, and we

therefore reverse its ruling dismissing those claims.

      2. Brock also appeals the trial court’s award of attorneys’ fees to C & M.

Although the trial court did not specify its reasons for its award of fees, C & M’s

motion for fees clearly was predicated on the premise that, because of the pendency

of the First Case, Brock was not entitled to file her claims in the Second Case as they

were redundant. Given that the trial court’s award of fees appears to be based at least

in part on its erroneous dismissal, we vacate that award.

      Judgment reversed in part and vacated in part. Phipps, P. J., and Dillard, J.,

concur.




                                          7
