Thе principal issue in this appeal is the application of our decision in
Hobbs v. Arthur,
1. Viewed in the light most favorable to the plaintiff as the party opposing summary judgment, the facts are as follows. On February 22, 2000, in Gwinnett County, Georgia, Gary Robinson backed the tractor-trailer he was driving for Eckerd Corporation several times into the cab of a parked tractor-trailer that Allen Boyd, Jr., was driving. Boyd took photos of the damage with a camerа provided by his employer for documenting accidents, and the police responded and filed a report. Robinson provided Boyd with the following handwritten explanation: “While try[ing] to pull into [a] parking area for trucks, as I started in, the bаck of [the] trailer swung around . . . and caught the right side mirror, hood, [and] fender of another truck that was parked.” (Punctuation supplied.) Boyd alleges that he suffered serious injuries as a result of the collision, which were worsened by a second accident on July 3, 2000, when a City of Baton Rouge police cruiser rammed into his car while he was stopped at a red light. In 2001, Boyd and his wife filed a lawsuit in Louisiana to recover for his injuries from the Baton Rouge incident, which they settled in 2003 for $300,000.
Boyd waitеd until February 22, 2002, the last day before the expiration of the two-year statute of limitation, to file a complaint in Cobb County Superior Court based on the Georgia accident, naming Robinson and Eckerd as defendants. Boyd made no attempt to serve the defendants for nearly five years. Almost seven years after the accident, and almost five years after filing, Boyd perfected service of the complaint; he then promptly filed voluntary dismissals as to each defendant pursuant to OCGA § 9-11-41 (a) (1) (A). Slightly less than six months later, Boyd filed a renewal action in Fulton County Superior Court under OCGA § 9-2-61 (a), which was served on Robinson and Eckerd a week later.
When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitatiоns or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance оccurs after the expiration of the applicable period of limitation, this privilege of renewal shall he exercised only once.
Robinson and Eckerd filed for summary judgment based on waiver, estoppel, and Boyd’s failure to exercise due diligence in perfecting service of process in the original action. They also sought partial summary judgment to preclude Boyd from raising claims for damages or injuries resulting from or arising after the second accident because of representations he made in the Louisiana lawsuit and his alleged spoliation of evidence by failing to preserve all photographs of the Georgia accident and one deposition in the Louisiаna case, as well as the unavailability of some medical records. Boyd disputed those defenses.
The trial court entered summary judgment in favor of Robinson and Eckerd, finding that “this action is barred by the doctrine of laches, as Plaintiffs five-yeаr delay in pursuing this action has prejudiced the Defendants’ ability to prepare this case and violated their due process rights.” Boyd appealed. The Court of Appeals reversed, agreeing with Boyd that
Hobbs
controlled while at the same time urging us to overrule that decision. See
Boyd,
2. The General Assembly has enacted statutes of limitation restricting the time a plaintiff has to file a lawsuit — in this case, two years. See OCGA § 9-3-33 (“Actions for injuries to the person shall be brought within two years after the right of action accrues . . . .”). The General Assembly has also enacted a law requiring plaintiffs to serve defendants with the complaint in a timely manner. See OCGA § 9-11-4 (“When service is to be made within this state, the person making such service shall make the servicе within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later
For over a century, however, there has also been a statute providing that if the original complaint was filed within the applicable statute of limitation, the plaintiff may voluntarily dismiss the case and recommence it within six months after the dismissal by filing a new complaint, subject only to the requirement of payment of costs in the original action. See OCGA § 9-2-61 (a). If the dismissal occurs after the statute of limitаtion has run, “this privilege of renewal shall be exercised only once.” Id. Most important for the issue presented, it is firmly established that the renewal suit is deemed an action de novo, in which defenses to the original action are inapplicable unless they would render the original action void and not just voidable. See
Hobbs,
Untimely service of process is such an inapplicable defense. As noted above, in
Hobbs
we held that “inasmuch as diligence in perfecting service оf process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.”
Prior to 2003, the right to take a unilateral voluntary dismissal generally ran until the plaintiff rested his case; now the right expires at the swearing of the first witness. See OCGA § 9-11-41 (a) (1) (A). The
Hobbs
Court was aware of the potential unfairness of the longstanding rule, which was emphasized by the Court of Appeals in that case, see
Robinson and Eckerd seek to avoid this rеsult by claiming a violation of due process. However, they cite no authority finding a constitutional violation on similar facts. Indeed, there is no constitutional right to a specific statute of limitation, and statutes of limitation also may be tоlled for many reasons. For example, tolling during a child’s minority can result in delays of well over a decade between the alleged incident and the filing of the lawsuit or service of the complaint on the defendant. See, e.g., OCGA § 9-3-90 (a) (“Minors аnd persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.”);
While there may be an extreme case where the delay was so long and so prejudicial that it would violate due process to allow the case to proceed, this casе is not close to that line. Delay also works to the disadvantage of a plaintiff, who bears the burden of proof, and loss or destruction of potential evidence, as the defendants allege occurred here, may be addressed through spoliation arguments or instructions where appropriate. See OCGA § 24-4-22;
Cotton States Fertilizer Co. v. Childs,
3. The trial court also found that Boyd was guilty of laches. The Court of Appeals reversed, citing this Court’s decision in
VATACS Group.
Thеre we reiterated that “[i]t is a longstanding and well-established rule that the doctrine of laches is an equitable defense
which is not applicable to actions at law .... This continues to be a valid statement of the law.”
4. Robinson and Eckerd ask us to hold that Boyd is equitably estopped from pursuing this lawsuit on the ground that Boyd concealed from them that a lawsuit had been filed. However, “ ‘estoppel rеquires an act on the part of the one intended to influence the other, and detrimental reliance upon that act by the other.’ ”
Knox v. Wilson,
Judgment affirmed.
Notes
OCGA § 9-2-61 (a) provides: