Opinion
A02A0609.
DECIDED: MAY 2, 2002
Breach of contract. Fulton Superior Court. Before Judge Goger.
Kenney Solomon, Thomas S. Kenney, Charles D. Joyner, James R. Little, for appellant.
Wilson, Brock Irby, Harry L. Cashin, Jr., Fleming Ray, James M. Sherman, for appellees.
Antonio Miranda, M.D. appeals from the trial court's order concluding that his lawsuit stood automatically dismissed after he failed to timely pay court transfer costs. For reasons that follow, we reverse.
The record shows that Miranda sued Southern Medical Clinics, P.A., d/b/a Corporate Center Clinic ("the Clinic"), and its president, Martin Rodriguez, M.D., in the Superior Court of Cobb County for breach of an employment contract. The trial court granted Miranda summary judgment, and Rodriguez and the Clinic appealed. On appeal, we affirmed the trial court's judgment as to the Clinic, but reversed the entry of judgment against Rodriguez personally.
See Rodriguez v. Miranda, 234 Ga. App. 779, 783-784 (2), (3) ( 507 S.E.2d 789) (1998).
Following remand, the Clinic, a Fulton County resident, moved to set aside the judgment against it, arguing that venue in Cobb County became improper when we reversed the judgment against Rodriguez, a Cobb County resident. The trial court agreed, set aside the judgment, and, on May 16, 1999, ordered that the action be transferred to the Superior Court of Fulton County. In its transfer order, the trial court stated that "[t]he Plaintiff shall be responsible for any transfer costs" and cited Uniform Superior Court Rule 19.1.
On May 19, 1999, the Cobb Superior Court clerk sent Mark Johnson, one of Miranda's counsel of record, a bill of costs relating to the transfer. The clerk's accompanying cover letter stated: "Upon receipt of these costs, the case will be transferred to Fulton County. If the costs are not paid within 20 days from receipt of this letter, the case will automatically stand dismissed." Johnson received the cost bill on May 20, 1999, and forwarded it to Thomas Kenney, another Miranda attorney, on June 16, 1999. Kenney paid the cost bill the following day.
The record contains a May 17, 1996 pleading entitled "Substitution of Counsel for Plaintiff." In that pleading, attorney William P. Rowe, III "substitute[d] himself as counsel of record in place of the previous appearance entered on behalf of Plaintiff by MARK A. JOHNSON." Nevertheless, Miranda admitted below that Johnson was counsel of record when the Cobb County clerk issued the cost bill in May 1999. He is now bound by that admission. See Froelich v. State, 210 Ga. App. 647, 648 n. 1 ( 437 S.E.2d 358) (1993).
Over two years later, the Clinic filed a Notice of Automatic Dismissal by Operation of Law with the Fulton County Superior Court. In that Notice, the Clinic asserted that Miranda had not paid the transfer costs within the 20-day time period, resulting in an automatic dismissal. Noting that Miranda satisfied the cost bill 28 days after Johnson received it, the Fulton County court affirmed the Clinic's Notice of Automatic Dismissal. Miranda now appeals.
Uniform Superior Court Rule 19.1 (F) provides:
No action or proceedings may be transferred except upon written order of the court in which the action pends (transferor court), reasonable notice of which shall be given to all parties. This order shall specify the court to which the matter is to be transferred (transferee court) and shall state that unless plaintiff pays all accrued court costs within 20 days of mailing or delivery of the cost bill to plaintiff, the action shall automatically stand dismissed without prejudice.
(Emphasis added.)
The dismissal referenced in Rule 19.1 (F) is automatic and self-executing. According to the Clinic, therefore, the case stood dismissed by operation of law when Miranda failed to pay the cost bill within 20 days after its delivery to Johnson. Miranda counters that the trial court's transfer order did not sufficiently notify him of the timing requirements and automatic dismissal under Rule 19.1 (F).
See Phillips v. McCroskey, 234 Ga. App. 87, 87-88 (1) ( 506 S.E.2d 338) (1998).
See Drury v. Wall, 234 Ga. App. 95 ( 506 S.E.2d 646) (1998) ("Once the 20 days passed without payment of the transfer costs, the case was automatically dismissed by operation of law and was no longer pending, and any further action in the case other than documenting dismissal was a mere nullity.").
In Young v. Martin Drilling Blasting, a plurality of this Court concluded that the automatic dismissal in Rule 19.1 (F) applies only when the transfer order notifies the plaintiff "that the case will be automatically dismissed if costs are not paid within a certain time." According to the Young plurality, the order must strictly comply with the rule; substantial compliance is not enough. Thus, the Young transfer order, which simply stated that "`upon payment of all costs within the time provided in URSC 19.1 this action shall be transferred,'" did not authorize dismissal, despite the plaintiff's failure to timely pay the accrued court costs.
195 Ga. App. 133, 134 (1) ( 392 S.E.2d 714) (1990) (physical precedent only).
See id.
Id. at 133-134.
As the Clinic points out, Young is only physical precedent, and the Young dissenters found strict compliance with Rule 19.1 (F) unnecessary. In the dissent's view, substantial compliance is adequate, and "the transferring court's order, referencing the time requirement provided by Rule 19.1, sufficiently invoked the operation of that Rule," demanding dismissal. Even assuming that substantial compliance suffices, however, we cannot find that the transfer order in this case invoked the automatic dismissal in Rule 19.1 (F).
See id. at 134-135 (Deen, P.J., dissenting).
Id. at 135.
The trial court's transfer order did not inform Miranda that the action would stand automatically dismissed unless he paid the court costs within 20 days of mailing or delivery of the cost bill. Instead, it merely stated that Miranda "shall be responsible for any transfer costs." The order lacked the language required by Rule 19.1 (F) and thus did not strictly comply with the rule. Furthermore, the order failed to mention the automatic dismissal provision or the timing requirements set by Rule 19.1. And although it stated that Miranda had to pay the transfer costs, it gave no indication that any deadline applied to this payment. Under these circumstances, the transfer order did not substantially comply with the notice requirements in Rule 19.1 (F).
See Southern Drayage v. Williams, 216 Ga. App. 721, 722 (1) ( 455 S.E.2d 418) (1995).
See id.
The Clinic argues that the court clerk's letter, which warned Miranda about the automatic dismissal and the 20-day payment deadline, substantially complied with Rule 19.1 and provided adequate notice of its provisions. In promulgating this rule, however, our Supreme Court directed the trial court to warn the plaintiff by court order of the draconian penalty imposed for failure to timely pay court costs. That penalty carries jurisdictional consequences; an automatic dismissal under Rule 19.1 divests the trial court of jurisdiction over an action.
See Phillips, supra at 88 (3).
Given these jurisdictional consequences, as well as Rule 19.1 (F)'s clear directive that the trial court inform the plaintiff about its provisions, we cannot find that a letter from the court clerk furnishes adequate notice. Notwithstanding the clerk's letter or Miranda's independent knowledge of the rule, the trial court needed to notify Miranda about the requirements and jurisdictional ramifications of Rule 19.1 (F). In the context of this rule — and its harsh remedy for failure to comply — Miranda's actual knowledge did not relieve the trial court of its notice responsibility. Even if substantial compliance is sufficient, that compliance must be found in the trial court's order, not in a letter from the court clerk.
Accord Terrell v. Porter, 189 Ga. App. 778, 779 (1) ( 377 S.E.2d 540) (1989) (court lacks jurisdiction over defendant who does not receive sufficient service of process, even if defendant has actual knowledge of the suit).
The trial court's transfer order did not mention the automatic dismissal or the timing requirements under Rule 19.1 (F). Accordingly, the order did not comply — strictly or substantially — with the rule's notice provisions, and Miranda's lawsuit does not stand dismissed as a matter of law. Judgment reversed. POPE, P.J., and BARNES, J., concur.
See Southern Drayage, supra.