338 Ga. App. 546
Ga. Ct. App.2016Background
- On July 5, 2013 Forbes was injured in an automobile collision with Smith; Smith was issued a uniform traffic citation (UTC) for failure to yield (OCGA § 40-6-71).
- Forbes filed a personal injury suit on September 15, 2015, more than two years after the accident; defendant moved to dismiss as time-barred under OCGA § 9-3-33 (two-year statute for personal injury).
- Forbes relied on OCGA § 9-3-99, which tolls the tort limitations period while prosecution of an alleged crime arising from the same facts is pending, arguing the UTC prosecution tolled the two-year period.
- The UTC summoned Smith to Recorder’s Court on August 6, 2013; the court informed Smith the citation had not been filed by the officer and that the matter was terminated without prejudice, noting a misdemeanor prosecution could be re-commenced within two years under OCGA § 17-3-1(e).
- There is no evidence a new UTC or other re-commencement of prosecution occurred within the two-year window; the trial court dismissed Forbes’s suit with prejudice as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-3-99 tolled the two-year personal-injury statute so Forbes’s Sept. 15, 2015 suit was timely. | Forbes: the UTC commenced prosecution, so tolling under § 9-3-99 ran from July 5, 2013 until prosecution became final or otherwise terminated; thus limitations extended through any pendency. | Smith: prosecution was terminated without prejudice on Aug. 6, 2013; no further prosecution was ever re-commenced, so tolling ended Aug. 6, 2013 and the two-year limitations period expired before Forbes sued. | Held: Tolled only while prosecution was pending; the Recorder’s Court terminated the prosecution on Aug. 6, 2013 and no re-commencement occurred, so limitations ran from Aug. 7, 2013 and Forbes’s suit was untimely. |
Key Cases Cited
- Miller v. Kitchens, 251 Ga. App. 225 (burden shifts to plaintiff to show tolling issue once defendant shows suit filed after limitations)
- State v. Gerbert, 267 Ga. 169 (UTC serves as instrument of prosecution and summons defendant)
- Chism v. State, 295 Ga. App. 776 (UTC may commence prosecution; court appearance governed by citation)
- Valades v. Uslu, 301 Ga. App. 885 (OCGA § 9-3-99 tolls statute while prosecution is pending)
- Beneke v. Parker, 285 Ga. 733 (uniform rules of the road violations qualify as alleged crimes under § 9-3-99)