WHITESELL Et Al. v. GEORGIA POWER COMPANY
341 Ga. App. 279
| Ga. Ct. App. | 2017Background
- Leroy Vernon Jones was struck and killed while walking along a road on November 14, 2011.
- Whitesell (administrators and daughter) filed a wrongful-death suit including Georgia Power on November 13, 2013 (2013 Suit) and voluntarily dismissed it on March 5, 2014.
- Whitesell then filed a new suit against only Georgia Power on August 27, 2014 (2014 Suit), after the two-year statute of limitations had expired.
- The 2014 complaint did not include pleadings from the 2013 Suit; Whitesell later amended to state only that the 2014 Suit is a renewal under OCGA § 9-2-61 and gave the 2013 case number.
- Georgia Power moved to dismiss; the trial court granted the motion. The Court of Appeals reviewed de novo and affirmed dismissal because Whitesell failed to affirmatively plead facts establishing a proper renewal under OCGA § 9-2-61.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2014 Suit was a valid renewal under OCGA § 9-2-61, permitting filing after the statute of limitations expired | Whitesell argued the 2014 Suit was a renewal of the 2013 Suit and cited the prior case number and OCGA § 9-2-61 | Georgia Power argued Whitesell failed to plead facts showing the 2013 Suit was valid, that the causes are substantially the same, or that the 2013 dismissal was not on the merits | Court held the amended complaint did not affirmatively show entitlement to renew; dismissal affirmed |
| Whether service of process on Georgia Power was timely | Whitesell implied timeliness but did not cure renewal pleading defects | Georgia Power asserted defects including timeliness issues | Court did not address timeliness because renewal pleading failure was dispositive |
Key Cases Cited
- Brown v. J.H. Harvey Co., 268 Ga. App. 322 (2004) (standard of review for motion to dismiss)
- Belcher v. Folsom, 258 Ga. App. 191 (2002) (requirements to affirmatively plead entitlement to renew under OCGA § 9-2-61)
- Morrison v. Bowen, 106 Ga. App. 464 (1962) (renewal complaint must show prior suit was valid and not dismissed on merits)
- Talley v. Commercial Credit Co. of Georgia, 173 Ga. 828 (1931) (renewal principles)
- Petkas v. Grizzard, 252 Ga. 104 (1984) (trial court may take judicial notice of original action’s record when assessing a renewal)