O.C.G.A. § 9-2-5 (2019)

Annotations

Cross references. Pendency of former action good cause

for abatement of latter on same cause, § 9-2-44. Law reviews. For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, “Defending the Lawsuit: A First-Round Checklist,” see 22 Ga. St. B.J. 24 (1985).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PENDENCY OF FORMER ACTION ATTACHMENTS General Consideration

Pendency of Former Action

Consideration with O.C.G.A. § 9-244. - O.C.G.A. §§ 9-2-5 and 9-2-44 are closely related in effect and are to be considered and applied together. Huff v. Valentine, 217 Ga. App. 310, 457 S.E.2d 249, 1995 Ga. App. LEXIS 451 (1995). Lack of jurisdiction. - Because a dispossessory court never ruled upon or resolved a landlord’s claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by “nail and mail” service under O.C.G.A. § 44-7-51(a), the landlord’s claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a). Bhindi Bros. v. Patel, 275 Ga. App. 143, 619 S.E.2d 814, 2005 Ga. App. LEXIS 908 (2005), cert. denied, No. S06C0064, 2006 Ga. LEXIS 45 (Ga. Jan. 17, 2006). Dismissal with prejudice. - While a trial court could dismiss a neighbor’s third complaint pursuant to O.C.G.A. §§ 9-25(a) and 9-2-44(a), the court was not at liberty to do so with prejudice. McLeod v. Clements, 310 Ga. App. 235, 712 S.E.2d 627, 2011 Ga. App. LEXIS 538 (2011). Counterclaim erroneously dismissed when separate and distinct parties. - In litigation between two physicians and various entities the physicians control, the trial court erred in dismissing the counterclaim because despite a confusing similarity between the names of the various medical entities at issue, both sides agreed that the entity functioning as the plaintiff in the first lawsuit and the entities functioning as the plaintiffs in the counterclaim in the second lawsuit were, in fact, separate and distinct. Oskouei v. Orthopaedic & Spine Surgery of Atlanta, LLC, 340 Ga. App. 67, 796 S.E.2d 299, 2017 Ga. App. LEXIS 7 (2017).

Legislative intent. - Legislative declaration in O.C.G.A. § 9-2-5 is totally consistent with prevailing jurisprudential philosophy that a party is not entitled to prosecute a suit for the same cause of action in different courts, or in the same tribunal, at the same time. Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95, 1981 Ga. App. LEXIS 2714 (1981). Provisions of this section are mandatory and they are plain and unmistakable. Jones v. Rich’s, Inc., 81 Ga. App. 841, 60 S.E.2d 402, 1950 Ga. App. LEXIS 1011 (1950). Protections against vexatious suits. - This section was intended to protect a party against vexatious suits on the same cause of action. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699, 1902 Ga. LEXIS 340 (1902). Splitting causes of action does not cause injustice. - Rule against splitting causes of action embodied in this section, is neither harsh or inflexible, and its proper administration need never cause injustice or deny the plaintiff any part of the fair and full determination of the plaintiff’s right. Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 1928 Ga. LEXIS 167 (1928). O.C.G.A. § 9-2-5 prohibits plaintiff from prosecuting two actions for same cause and against the same party, and, if the actions are commenced at different times, the pendency of the former shall be a good defense to the latter. Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710, 1982 Ga. LEXIS 672 (1982). When a limited liability company brought a tort action against a county industrial development authority after filing an exception to a special master’s award in a condemnation proceeding, the trial court properly dismissed the tort action under O.C.G.A. §§ 9-2-5(a) and 9-12-40. In both the condemnation action

and the tort action, the company sought a monetary award on the ground that the condemnation rendered its contract a nullity and that the condemnation action was brought in bad faith. Coastal Water & Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga. App. 422, 654 S.E.2d 236, 2007 Ga. App. LEXIS 1215 (2007). O.C.G.A. § 9-2-5 provides mechanism by which one viable action is determined. Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95, 1981 Ga. App. LEXIS 2714 (1981). Applicability. - O.C.G.A. § 9-2-5 is part of the Civil Practice Act, O.C.G.A. T. 9, C. 11, and does not apply in criminal proceedings. Cox v. State, 203 Ga. App. 869, 418 S.E.2d 133, 1992 Ga. App. LEXIS 560 (1992). Appellate court properly dismissed a second fraud and breach of contract action filed in a separate county, which was identical to one previously filed by the same plaintiff against the same defendants, under the prior pending litigation doctrine pursuant to O.C.G.A. § 9-2-5, and not under O.C.G.A. § 9-11-12(b)(6), which acted as a defense to the later filed action. Kirkland v. Tamplin, 283 Ga. App. 596, 642 S.E.2d 125, 2007 Ga. App. LEXIS 73 (2007), cert. denied, No. S07C0915, 2007 Ga. LEXIS 508 (Ga. June 25, 2007), cert. denied, 552 U.S. 1010, 128 S. Ct. 545, 169 L. Ed. 2d 373, 2007 U.S. LEXIS 12023 (2007). First suit absolute defense to second suit. - If two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter. Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 334 S.E.2d 219, 1985 Ga. App. LEXIS 2148 (1985). Plaintiffs’ suit against three corporations was barred by O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) as a prior suit involving the same parties and claims had been dismissed and an appeal of the dismissal was pending. That there were minor differences between the two complaints and that plaintiffs added new defendants was immaterial. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23, 666 S.E.2d 446, 2008 Ga. App. LEXIS 895 (2008). “Renewal suit” filed by a limited liability company (LLC) and the company’s

manager against three corporations was properly dismissed under O.C.G.A. §§ 92-5(a) and 9-2-44(a) as the LLC and manager’s prior and nearly identical suit against the corporation had been dismissed and an appeal was pending. However, the second dismissal should have been without prejudice under O.C.G.A. § 9-11-41(b) as the corporation’s plea in abatement did not challenge the merits of that suit. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23, 666 S.E.2d 446, 2008 Ga. App. LEXIS 895 (2008). Renewal action not barred although counterclaim from prior action still pending. - After a car buyer dismissed the buyer’s fraud and breach of contract action against the seller while a counterclaim was pending and then attempted to refile the buyer’s claims under the renewal statute, O.C.G.A. § 9-2-61, the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-25(a) and 9-2-44(a). Code Section 9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer’s claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288, 787 S.E.2d 259, 2016 Ga. App. LEXIS 312 (2016). Remedy for violation of subsection (a) of O.C.G.A. § 9-2-5 is in the nature of a shield by which an aggrieved defendant may protect oneself from defending duplicitous lawsuits. There is no additional remedy in the nature of a sword by which a defendant may prosecute an action for damages against a purported violator of the statute. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 344 S.E.2d 483, 1986 Ga. App. LEXIS 1709 (1986). When actions are commenced at different times, plaintiff has no election, and must proceed with the initially filed action, and such former action shall be a good defense to the latter. If, however, the actions are filed simultaneously none of the actions are either “former” or “latter,” and the plaintiff must select the case the plaintiff will pursue and the others must be dismissed. O.C.G.A. § 9-2-5 allows the plaintiff to elect the case which the plaintiff will prosecute and not the one which the plaintiff will first prosecute.

Pendency of Former Action (Cont’d) Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95, 1981 Ga. App. LEXIS 2714 (1981). When actions in two counties involve the same plaintiffs, the same defendants, and the same cause of action, the fact that the Cobb County actions were brought separately by these same plaintiffs and were then combined in one action in Colquitt County is a difference without a distinction. Creel v. Welker & Assocs., 174 Ga. App. 877, 332 S.E.2d 5, 1985 Ga. App. LEXIS 1986 (1985). Controlling statute over § 9-2-4. - Former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5) provided a defendant with a specific defense against a plaintiff who came within its parameters and would prevail over the general terms of former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4) if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684, 1978 Ga. App. LEXIS 2296 (1978). Applicability to tort actions. - O.C.G.A. § 9-2-5 is made applicable to tort actions by former Civil Code 1895, § 3903 (see now O.C.G.A. § 51-11-5). Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699, 1902 Ga. LEXIS 340 (1902). Application to federal court. - This section does not apply to a suit pending in federal court, but when the federal court has acquired possession of the res or taken steps equivalent to the exercise of dominion over it, that court will acquire exclusive jurisdiction. Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233, 96 S.E. 424, 1918 Ga. LEXIS 273 (1918). Pendency of a prior action in the federal court brought by a defendant in a negligence action in the state court did not bar the defendant’s third-party complaint in the state case, even though it involved the same parties and same cause of action. Huff v. Valentine, 217 Ga. App. 310, 457 S.E.2d 249, 1995 Ga. App. LEXIS 451 (1995). Plaintiff is not at liberty to split up a plaintiff’s demand and prosecute it piecemeal, or present only a portion of the grounds upon which special relief is

sought, and leave the rest to be presented in a second suit, if the first fails. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684, 1978 Ga. App. LEXIS 2296 (1978). Pendency of one proceeding is good defense to second proceeding. Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485, 1973 Ga. App. LEXIS 1106 (1973). Pendency of a former action is a good defense to a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former suit, and a motion for summary judgment will lie to the second suit since it cannot be tried as long as the first suit is pending. Cherry v. Gilbert, 124 Ga. App. 847, 186 S.E.2d 319, 1971 Ga. App. LEXIS 1134 (1971). From a single wrong only one cause of action can arise. Ellis v. Kite, 107 Ga. App. 237, 129 S.E.2d 547, 1963 Ga. App. LEXIS 791 (1963). If there is substantial identity of wrong, which necessarily includes identity of the right violated, there is substantial identity of cause of action. Ellis v. Kite, 107 Ga. App. 237, 129 S.E.2d 547, 1963 Ga. App. LEXIS 791 (1963). No plaintiff is entitled to prosecute two actions in the courts of this state at the same time, for the same cause, and against the same party; in such a case the defendant may require the plaintiff to elect which the plaintiff will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter, if commenced at different times. Baxter v. Crandall, 45 Ga. App. 125, 163 S.E. 526, 1932 Ga. App. LEXIS 198 (1932). Plaintiff cannot pursue at the same time against the same defendant a cause of action based upon the same subject matter in two different courts. Jones v. Rich’s, Inc., 81 Ga. App. 841, 60 S.E.2d 402, 1950 Ga. App. LEXIS 1011 (1950). Dismissal of action. - Claims that were subject to dismissal because the claims were duplicative of prior pending actions and subject to dismissal under O.C.G.A. § 9-2-5 were not void; thus, voluntary dismissal without prejudice of such claims was a dismissal within the meaning of O.C.G.A. § 9-11-41. Zohoury v.

Zohouri, 218 Ga. App. 748, 463 S.E.2d 141, 1995 Ga. App. LEXIS 867 (1995), cert. denied, No. S96C0278, 1996 Ga. LEXIS 285 (Ga. Jan. 26, 1996). Trial court did not err in dismissing an officer’s claims against entities pursuant to the “prior action pending doctrine,” O.C.G.A. § 9-2-5(a), because the officer previously filed a similar action in the same court that was transferred to another county; the claims in the two actions were similar and the same facts were pled in both actions. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23, 2011 Ga. App. LEXIS 851 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. May 29, 2012). If the first suit is a wholly abortive effort, which the defendant is not legally called upon to resist, the pendency of the first suit shall not abate second action. Jones v. Rich’s, Inc., 81 Ga. App. 841, 60 S.E.2d 402, 1950 Ga. App. LEXIS 1011 (1950). Common issues but possibility of different ones being raised. - Even though there was a common issue of liability in each of two actions brought by a party, where additional liability issues could be raised in one action, mandatory abatement or dismissal was not authorized. International Telecommunications Exch. Corp. v. MCI Telecommunications Corp., 214 Ga. App. 416, 448 S.E.2d 71, 1994 Ga. App. LEXIS 920 (1994). Error to dismiss complaint when defendant not party to pending action. - As O.C.G.A. § 9-2-5 requires an identity of parties before the defense of prior pending action is viable, it was error for the trial court to apply the defense and dismiss the complaint since the defendant was not a party to the pending action when the suit was filed. P.H.L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 S.E.2d 545, 1985 Ga. App. LEXIS 1806 (1985); McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 423 S.E.2d 681, 1992 Ga. App. LEXIS 1390 (1992). Dismissal of action not justified. - Dismissal of an action by foreign corporations against a manufacturer on the basis of a prior pending action in the courts of another state was inappropriate in consideration of the provisions of O.C.G.A. §§ 9-

2-5, 9-2-44, and 9-2-45. Flagg Energy Dev. Corp. v. GMC, 223 Ga. App. 259, 477 S.E.2d 402. Status of second action. - Second action is not necessarily void ab initio where there is a prior pending action. Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634, 288 S.E.2d 320, 1982 Ga. App. LEXIS 1964 (1982). Plea of pendency. - Since five years have not yet passed since last order was filed in prior action, the prior action is still pending when a plea of pendency is filed. That being so, the pleader is entitled to a judgment in the pleader’s favor because the key event is not the entry of an order in the second action but the filing of the defense of pendency. Hammond v. State, 168 Ga. App. 508, 308 S.E.2d 701, 1983 Ga. App. LEXIS 2831 (1983). Copy of pleading proof of former action. - Certified copy of the pleading in a former case offered into evidence at a hearing on a motion for summary judgment is sufficient proof of the pendency of the former action. Grant v. Wilkinson, 167 Ga. App. 83, 306 S.E.2d 63, 1983 Ga. App. LEXIS 2400 (1983). Dismissal of former action for lack of jurisdiction. - Although this section prohibits a plaintiff from prosecuting two actions for the same cause and against the same party, when the former suit is dismissed for lack of jurisdiction, plaintiff is not prohibited from commencing another suit for the same cause against the same party in a court having jurisdiction to grant the relief sought. Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577, 1979 Ga. LEXIS 1359 (1979). Determination of jurisdiction. - Until the question of jurisdiction is determined by the court having power to pass thereon, no other court should interfere. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699, 1902 Ga. LEXIS 340 (1902). No action “pending” without service. - Mere filing of petition, without proper service, will not constitute a pending suit. McClendon & Co. v. Hermando Phosphate Co., 100 Ga. 219, 28 S.E. 152, 1897 Ga. LEXIS 28 (1897); Kirby v. Johnson County Sav. Bank, 12 Ga. App. 157, 76 S.E. 996, 1913 Ga. App. LEXIS 477 (1913).

Pendency of Former Action (Cont’d) Filing of petition without service does not operate to commence a suit and no suit is pending until the suit has been served. Cherry v. Gilbert, 124 Ga. App. 847, 186 S.E.2d 319, 1971 Ga. App. LEXIS 1134 (1971). When a defendant files a counterclaim after the plaintiff voluntarily dismisses an action in which lawful service was never had, the counterclaim does not keep the first action pending so as to authorize abatement of another action under this section. Swanson v. Holloway, 128 Ga. App. 453, 197 S.E.2d 150, 1973 Ga. App. LEXIS 1509 (1973). Because the Department of Transportation failed to show that service of process had been effectuated in an alleged prior pending personal injury suit filed in Brantley County, based on the same accident a driver sued upon in Wayne County, the Brantley County suit was not “pending,” as that term was defined in O.C.G.A. § 9-2-5(a). Thus, the trial court erred in dismissing the driver’s Wayne County suit. Watson v. Ga. DOT, 288 Ga. App. 40, 653 S.E.2d 763, 2007 Ga. App. LEXIS 1134 (2007). Return of sheriff reciting service in another county was prima facie conclusive of the facts therein recited, and pendency of undetermined and undisposed of traverse did not operate to destroy the status of the action in the other county as a pending suit. Baxter v. Crandall, 45 Ga. App. 125, 163 S.E. 526, 1932 Ga. App. LEXIS 198 (1932). All the parties must be the same in order for the pendency of the first suit to abate the second. Haisten v. Tanner-Brice Co., 211 Ga. 821, 89 S.E.2d 172, 1955 Ga. LEXIS 478 (1955). Identity of parties must be same. - Parties in mandamus proceeding to compel trustees to pay a retirement and in certiorari proceeding to review finding of trustees are not the same. Aldredge v. Rosser, 210 Ga. 28, 77 S.E.2d 515, 1953 Ga. LEXIS 466 (1953). There is no defense under this section when the plaintiffs in the first action are in nowise involved in the second, even though plaintiffs in the later action were

in actuality plaintiffs in the first as intervenors. Haisten v. Tanner-Brice Co., 211 Ga. 821, 89 S.E.2d 172, 1955 Ga. LEXIS 478 (1955). O.C.G.A. § 9-2-5 did not bar plaintiff’s action against her former husband’s corporation for damages to a warehouse because of the inclusion of a similar claim against the former husband in a contempt action. Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 478 S.E.2d 601. Parties must occupy same status. - This section requires that the suits must be between the same parties based on the same cause of action, and not only must the parties be the same, but also they must occupy the same status in both suits. Tinsley v. Beeler, 134 Ga. App. 514, 215 S.E.2d 280, 1975 Ga. App. LEXIS 2060 (1975). In order for O.C.G.A. § 9-2-5 to be applicable, the parties must occupy the same status in both suits. Bedingfield v. Bedingfield, 248 Ga. 91, 281 S.E.2d 554, 1981 Ga. LEXIS 917 (1981). Dismissal of one party from an action based on a prior pending suit was not erroneous simply because all other parties to the two suits were not identical and because a party was a defendant in the first action and plaintiff in the second; the same party was plaintiff with respect to its counterclaim in the first action as well as its claim in the second action and, thus, the required identity of status was present. McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 423 S.E.2d 681, 1992 Ga. App. LEXIS 1390 (1992). Effect of joinder or substitution. - Trial court should have determined whether party could have been added as a party plaintiff after joinder or substitution was sought to 1995 suit; therefore, if trial court allowed addition of party in 1995 action, the party’s 1997 action should have been dismissed as identical. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22, 1998 Ga. App. LEXIS 416 (1998). Dispossessory actions by landlord. - Dispossessory action filed by a landlord against a tenant which sought possession of the premises and payment of past due rent for April 1984 did not preclude a

second action seeking possession and payment of past due rent for May 1984; clearly, the two proceedings were not the same cause of action. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 344 S.E.2d 483, 1986 Ga. App. LEXIS 1709 (1986). Attack based on simultaneous pleadings. - Because an attack based on simultaneous pleadings does not go to the merits of the underlying claim, it is more appropriately asserted by a motion to dismiss than a motion for summary judgment. Liner v. North, 184 Ga. App. 74, 360 S.E.2d 637, 1987 Ga. App. LEXIS 2141 (1987). Addition of totally new parties by amendment does not relate back to the original suit for purposes of determining whether a prior pending suit exists. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697, 1975 Ga. App. LEXIS 1408 (1975). Subsequent voluntary dismissal of the first suit does not preserve the second suit insofar as this section is concerned. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697, 1975 Ga. App. LEXIS 1408 (1975). Under this section, if two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter; the effect of the defense cannot be avoided even by a dismissal of the first suit. Steele v. Steele, 243 Ga. 522, 255 S.E.2d 43, 1979 Ga. LEXIS 973 (1979); Astin v. Callahan, 222 Ga. App. 226, 474 S.E.2d 81. After pleading, plaintiff cannot elect which suit to pursue. - Under this section one may not elect to dismiss a first suit where two suits based on the same cause of action were filed at separate times, as once a plea raising the issue of pendency of another suit is filed it is too late for plaintiff to elect which proceeding the plaintiff chooses. Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485, 1973 Ga. App. LEXIS 1106 (1973). Effect of the plea or defense of a pending former suit cannot be avoided even by a dismissal of the first suit. McPeake v. Colley, 116 Ga. App. 320, 157 S.E.2d 562, 1967 Ga. App. LEXIS 798 (1967), over-

ruled, Dawson v. McCart, 169 Ga. App. 434, 313 S.E.2d 135, 1984 Ga. App. LEXIS 1581 (1984). Same defendant and same cause of action. - If pending a suit another be brought against the same defendant for the same cause of action, the pendency of the first suit may be pleaded in abatement of the second, and the plaintiff cannot defeat the plea under this section by dismissing the suit first brought. Singer v. Scott, 44 Ga. 659, 1872 Ga. LEXIS 402 (1872). Dismissal of cross action filed in first suit would not avoid plea in abatement filed to second suit in another court. Jones v. Rich’s, Inc., 81 Ga. App. 841, 60 S.E.2d 402, 1950 Ga. App. LEXIS 1011 (1950); Minniefield v. Sylvester, 193 Ga. App. 484, 388 S.E.2d 526, 1989 Ga. App. LEXIS 1522 (1989). Shareholder’s action to inspect corporate records brought in Cobb County was not barred by a prior action brought by the shareholder in Fulton County because the parties were not identical and the causes of action were not the same. The Cobb County suit sought only access to corporate records and attorney fees, while the Fulton County suit sought damages for breach of fiduciary duties, punitive damages, attorney fees, and the forced repurchase of the shareholder’s shares. Advanced Automation, Inc. v. Fitzgerald, 312 Ga. App. 406, 718 S.E.2d 607, 2011 Ga. App. LEXIS 968 (2011). Pendency of the related actions was good cause for abatement of the instant case because the related actions and the instant case both involved the landowner’s alleged rights to title and possession of the same land, the landowner properly asserted the landowner’s claims of wrongful foreclosure in the prior pending related actions, and a decision in the landowner’s favor on the landowner’s wrongful foreclosure claims in the related actions could estop the present dispossessory proceeding. Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., 333 Ga. App. 718, 776 S.E.2d 504, 2015 Ga. App. LEXIS 507 (2015). Trial court erred by finding that two pending actions brought by a hospital against the Department of Community

Pendency of Former Action (Cont’d) Health and a competing hospital involved the same cause of action under the prior pending action doctrine, O.C.G.A. §§ 9-25(a) and 9-2-44(a); although both cases relied on one similar argument, the hospital’s petition for judicial review of the final agency decision raised additional issues that could not have been brought in the hospital’s earlier declaratory judgment action. Doctors Hosp. of Augusta, LLC v. Dep’t of Cmty. Health, 344 Ga. App. 583, 811 S.E.2d 64, 2018 Ga. App. LEXIS 69 (2018). Motion for summary judgment on the ground of pendency. - Motion for summary judgment will lie on the ground of the pendency of a former original action, in a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98, 1972 Ga. App. LEXIS 1085 (1972); Stagl v. Assurance Co. of Am., 245 Ga. App. 8, 539 S.E.2d 173, 2000 Ga. App. LEXIS 779 (2000), cert. denied, No. S00C1873, 2000 Ga. LEXIS 921 (Ga. Nov. 30, 2000). Motion for summary judgment will lie on the ground of the pendency of substantially the same cross-claim filed against the party in a former original action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98, 1972 Ga. App. LEXIS 1085 (1972). Action to collect on note and foreclosure on personal property securing payment of the same note are different causes of action, and pendency of the former does not serve to abate the latter. Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881, 1975 Ga. App. LEXIS 1211 (1975). Prior pending wrongful foreclosure suit did not require dismissal of condemnation proceeding. - Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank’s application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint

which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210, 2008 Ga. App. LEXIS 1304 (2008). Condemnation proceeding distinct from inverse condemnation action. - Pendency of the county’s condemnation proceeding provided no basis for dismissal of the property owner’s inverse condemnation action because a claim for condemnation was distinct from a claim for inverse condemnation and the damages recoverable by a property owner for each cause of action was different; thus, the two cases were not for the same cause of action. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576, 2019 Ga. App. LEXIS 531 (2019), cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. May 4, 2020), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. May 4, 2020). Effect of pending mandamus action. - Complaint seeking injunctive relief against county corporation is not subject to dismissal because of the pendency of a mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172, 195 S.E.2d 904, 1973 Ga. LEXIS 847 (1973). Both garnishment and contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed under a divorce judgment. Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697, 1976 Ga. App. LEXIS 2086 (1976). Suing on a note will not bar ejectment action on a deed given to secure the note. Dykes v. McVay, 67 Ga. 502, 1881 Ga. LEXIS 212 (1881). Abatement of action based on subject of compulsory counterclaim. - Subsequent action by a parent for wrongful death of a child is abated by pending original action against the parent for damages arising from the same automobile accident as a wrongful death claim was a compulsory counterclaim in the original action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 222 S.E.2d 878, 1975 Ga. App. LEXIS 1210 (1975). Dismissal of counterclaim in second action erroneously denied. - In a personal injury accident between two

drivers, the trial court erroneously denied the first driver’s motion to dismiss a counterclaim asserted by the second driver because the second driver had a prior pending action against the first driver in another county, and the parties’ status in both actions was identical. Moreover, given the first driver’s assurances that the instant suit would be dismissed in favor of defending the second driver’s claims in the prior pending action, the denial of the first driver’s motion to dismiss the second driver’s counterclaim was inconsistent with the purpose of O.C.G.A. § 9-2-5. Jenkins v. Crea, 289 Ga. App. 174, 656 S.E.2d 849, 2008 Ga. App. LEXIS 35 (2008). Judgment granted upon failure to raise defense. - There was no merit in tenants’ contention that despite having failed to raise the pendency of their landlord’s prior dispossessory action as a defense to a subsequent dispossessory action, the subsequent action should nevertheless be barred. It was incumbent upon the tenants to answer and raise whatever defenses the tenants thought applicable. No answer having been filed, the trial court properly granted judgment by default. Dickens v. First Capital Income Properties, Ltd., 187 Ga. App. 607, 371 S.E.2d 130, 1988 Ga. App. LEXIS 840 (1988). Action not barred because of insurance payments. - Plaintiff was not barred from prosecuting a loss of consortium action although the plaintiff had received and accepted payment from the defendant’s insurance company for the same automobile collision because the payment previously received was not as a result of a lawsuit, but was received prior to the filing of any complaint. Therefore, it could not be said as a matter of law that the plaintiff impermissibly split the plaintiff’s cause of action. Hayes v. McFarlane, 187 Ga. App. 90, 369 S.E.2d 286, 1988 Ga. App. LEXIS 579 (1988). Action barred. - After a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and 9-2-44; the trial court did not abuse the court’s O.C.G.A.

§ 9-5-8 discretion in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and