Bardo v. Liss

In Bardo v. Liss, 273 Ga. App. 103 (614 SE2d 101) (2005), the medical malpractice plaintiffs also had the affidavit required by OCGA 9-11-9.1 in hand but failed to file it with their complaint. Supra, 273 Ga. App. at 103-104. When the defendants moved to dismiss simultaneously with the filing of their answer, the plaintiffs failed to voluntarily dismiss the action but merely opposed the motion to dismiss, claiming mistake and filing the missing affidavit with the court. Id. The court granted the motion to dismiss without specifying whether it was with or without prejudice. Id. at 104. The Court affirmed, holding that the dismissal necessarily was with prejudice because it was for failure to state a claim, and that because the plaintiffs had failed to voluntarily dismiss their action prior to the trial court's having ruled on the motion, they could not seek to renew under OCGA 9-2-61. Id. at 106-107 (2).