Naomi Jeanette Bell and Timothy. Bell brought suit against Jorge V. Figueredo, M.D., and Parkway Surgery Associates, P.C., seeking damages for personal injuries and loss of consortium arising from the alleged negligence of Figueredo in performing surgery upon Mrs. Bell. This suit was the second filed by the Bells, the first suit against the same defendants having been voluntarily dismissed pursuant to OCGA § 9-11-41 (a). The trial court dismissed the instant action because the complaint did not include an expert affidavit as required by OCGA § 9-11-9.1, and the Bells appeal.
1. Appellants contend the trial court erred by granting appellees’ motion to dismiss, arguing that a renewal action such as the case at bar stands on the same footing as the prior action, and thus an affidavit was not required in the instant action because several had been filed in the first lawsuit in opposition to appellees’ motion for summary judgment therein. The record reveals that appellants’ first suit against appellees was filed on November 29, 1984, and dismissed on March 5, 1987. Appellants then filed the instant action on September 4, 1987, but did not include an expert affidavit as required by OCGA § 9-11-9.1, which became effective on July 1, 1987.
OCGA § 9-2-61 (a) allows a party who files an action within the applicable statute of limitation and then dismisses the case to renew the claim by filing another lawsuit “either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” Before it was revised in 1985, this statute provided that after dismissal and recommencement within six months, “the renewed case shall stand upon the same footing, as to limitation, with the original case.” Appellants argue that by
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deleting this phrase in the 1985 revision, the General Assembly intended to change the prior law to provide that a properly renewed action stands on the same footing as the prior action in
all
respects, not just as to the statute of limitation. We do not agree. When the statute was amended, the General Assembly specifically stated that the code section would continue to provide that a renewed action would “stand on the same footing, as to limitation, with the original case . . . .” Ga. Laws 1985, p. 1446. Both before and after the 1985 revision, we have recognized that the effect of OCGA § 9-2-61 (a) is solely to place the renewed action on the same footing as to the statute of limitation with the original action. See
Stevens v. Faa’s Florist,
Moreover, a lawsuit renewed under OCGA § 9-2-61 is an action de novo,
Adams v. Gluckman,
We reject appellants’ argument that under the analysis employed in
McKenzie v. Seaboard System R.,
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2. Appellants’ contention that the trial court’s decision was erroneous because the failure to include an expert affidavit is an amendable defect is without merit. Although this court has held that the affidavit required by OCGA § 9-11-9.1 may be supplied by amendment,
St. Joseph’s Hosp.,
supra at 240-241 (1), (but see Carley, J., dissenting, supra at 242), appellants never filed an amendment to add the affidavit or sought the court’s permission to do so, and consequently there is nothing for this court to review. See
Chafin v. Wesley Homes,
3. Appellants’ constitutional challenge to OCGA § 9-11-9.1 not having been raised below, we need not consider it here.
Duncan v. Duncan,
4. Appellants next enumerate as error the trial court’s refusal to include the record from the first lawsuit in the record presented to this court on appeal. Appellants contend the trial court either should have taken judicial notice of the prior record, including the expert affidavits, when ruling on appellees’ motion to dismiss, or should have granted their motion to include the record in the first case with the record of the second case transmitted to this court for appellate review.
A trial court
may
take judicial notice of records on file in the. same court, including the record of a prior action alleged to be the basis for a renewal action, but the court is not
required
to do so.
Petkas v. Grizzard,
Nor do we agree with appellants that the trial court should have granted their motion to include both records on appeal. “Whenever the record of another case is considered by the trial court (because introduced into evidence or because judicial notice is taken), that prior record should be included in the record on appeal. [Cit.]”
Continental Ins. Co. v. Carter,
5. Our holding in Division 3 renders moot appellees’ motion to transfer the appeal to the Supreme Court.
Judgment affirmed.