After voluntarily dismissing her first two complaints against Teneisha A. Faniel and Tara E Smith for injuries allegedly sustained in a vehicle accident, Jenita Shy filed a third complaint. Concluding that the suit was statutorily unauthorized, the trial court dismissed the complaint. Because dismissal was improper, we reverse.
On December 27, 1999, appellee Faniel was the driver of a vehicle involved in an accident. Appellee Smith had rented the vehicle and allegedly authorized Faniel to drive it. Appellаnt Shy was a passenger in the vehicle and claimed that she sustained injuries as the result of the accident.
*254 Because the statute of limitation for personal injury actions is two years, OCGA § 9-3-33, the limitation period for a negligence action arising out of the motor vehicle accident expired on December 27, 2001. On December 17, 2001, appellant filed a complaint against appellees seeking recovery for the injuries she allegedly sustained in the motor vehicle accident (the “First Complaint”). For reasons unclear from the record, on December 21, 2001, appellant filed a second complaint against aрpellees raising the same allegations (the “Second Complaint”). 1
On June 15, 2004, appellant filed a “Dismissal Without Prejudice” of the Second Complaint. On Septеmber 7, 2004, appellant filed two separate notices voluntarily dismissing the First Complaint: the first notice was a “Dismissal Without Prejudice” of the First Complaint as against appellees; the second notice was a “Dismissal With Prejudice” of the First Complaint as against Merastar Insurance Company, which apparently was aрpellant’s uninsured motorist carrier.
Within six months of voluntarily dismissing the first two complaints, appellant filed a third complaint against appellees, again raising the same allegations concerning the motor vehicle accident (the “Third Complaint”). Appellees filed a motion to dismiss the Third Complaint, or in the alternative, a motion for summary judgment. Among other things, appellees contended that the current action was not a proper renewal action under OCGA § 9-2-61 (a) and thаt the Third Complaint ought to be dismissed on the ground that the second voluntary dismissal had operated as an adjudication on the merits under OCGA § 9-11-41 (a) (3). The trial court subsequently dismissеd the Third Complaint on these statutory grounds, resulting in this appeal.
1. Appellant maintains that the trial court erred in dismissing the Third Complaint based on OCGA § 9-2-61 (a). We agree.
OCGA § 9-2-61 (a) authorizes the renewal of a dismissed action within the applicable statute of limitation or within six months of the dismissal, whichever is later. If the dismissal occurs after the limitаtion period has expired, however, “this privilege of renewal shall be exercised only once.” OCGA § 9-2-61 (a).
The trial court treated appellant’s filing of hеr Second Complaint as a renewal action under OCGA § 9-2-61 (a). As a result, the trial court ruled that appellant’s subsequent filing of her Third Complaint was a statutorily unauthorizеd attempt to renew the action a second time.
*255
The trial court erred in concluding that the filing of the Second Complaint was a renewal action. Thе unusual procedural history of this case reflects that the Second Complaint was filed within days of the First Complaint while the First Complaint remained pending, and both complaints were filed within the applicable limitation period. As such, the filing of the Second Complaint was not the “renewal” of a previously dismissed actiоn, but rather the filing of a duplicate action. Consequently, the filing of the Third Complaint was the appellant’s first renewal action and thus was authorized under OCGA § 9-2-61 (a). Compare
Worley v. Pierce,
2. Appellant further contends that the trial court erred in dismissing the Third Complaint based on OCGA § 9-11-41 (a). Again, we agree.
OCGA § 9-11-41 (a) (2003) sets out the procedural rules applicable-to the voluntary dismissal of a complaint. Subsection (a) (3) states that such a dismissal is without prejudice, “except that the filing of a second noticе of dismissal operates as an adjudication upon the merits.” OCGA § 9-11-41 (a) (3) (2003). Notably, however, prior to its amendment in 2003, subsection (a) provided that a voluntary dismissal was not an adjudication on the merits until the filing of a third notice of dismissal. See OCGA § 9-11-41 (a) (2002). In enacting that amendment, the General Assembly stated that the amended version of the stаtute would “apply to all civil actions filed on or after July 1, 2003.” Ga. L. 2003, pp. 820, 828, § 9.
The trial court ruled that because appellant’s Third Complaint was filed after July 1, 2003, the current version of OCGA § 9-11-41 (a) applies. As such, the trial court held that appellant’s second voluntary dismissal of her complaint had operated as an adjudiсation on the merits under OCGA § 9-11-41 (a) (3) so as to bar on res judicata grounds the filing of the Third Complaint.
The trial court erred based on the recent case of
Davis v. Lugenbeel,
*256
3. Appellees nevertheless contend that the trial court should be affirmed under the right for any reason rule. Seе
Pryor Organization v. Stewart,
The notices of dismissal do not support appellees’ contention. As previously discussed, appellant simultaneously filed two separate notices of voluntary dismissal of the First Complaint: one notice stated that it was a “Dismissal Without Prejudiсe” as to the appellees; the other notice stated that it was a “Dismissal With Prejudice” as to Merastar. Taken together, these two notices clearly show that appellant intended to voluntarily dismiss her claims against appellees without prejudice. The fact that appellant chose to dismiss hеr claims against Merastar with prejudice does not change this result.
See Mateen v. Dicus,
4. Finally, appellees argue that the trial court should be affirmed under the right for any reason rulе because appellant is seeking to renew a void action. Appellees assert that in filing her Third Complaint, appellant was attempting to renеw the second suit filed on December 21, 2001, a suit which they argue was void because service was never perfected on them.
It is true, as appellees аrgue, that the privilege of renewal does not extend to void cases, and that the original suit is void if service was never perfected. See
Garcia v. Virden,
Judgment reversed.
Notes
Appellant retained new counsel subsequent to the filing of the Second Complaint.