*1 Cramer Spalding overstepped. he ascertain whether Judges, supra. McCorkle v. County, supra at 574-575. See also Cramer, the trial court erred when light Judge of the action taken attorney judge defending county fees for the suit the it awarded him. against was forced to file remaining appellant enumerations of error raised
3. The are without merit. Clarke, part. J., and reversed C. affirmed Sears-Collins, JJ., J., Fletcher, Judge and Robert G. Chief Hunstein, J., concur; participating. Walther not February
Reconsideration denied March Beck, Owen, Jr., Murray, Owen & James C. appellant. for Whalen, Mullins & Shepherd Andrew J. Whalen Timothy Edwards, Shepherd, Christopher N. C. appellees. for
S92A1106. WRIGHT et al. v. ROBINSON.
Clarke, Chief Justice. This case arises from ap- medical care rendered to Robinson at pellants’ beginning April May clinic ending Plaintiff-appellee alleges appellants negligently prescribed proximate medication and that injuries. was the cause of her Plaintiff-appellee filed this medical June The litigation years, during continued more than six which both parties discovery. superior conducted extensive court specially selection, set trial for jury November 1990. After plaintiff voluntarily dismissed the gave suit. Plaintiff’s counsel other reason other jury. than that he did not like the May 16, 1991,
On Robinson refiled the under the renewal in the same court. The suit allegations contained the same against claims the same defendants. Defendants filed motion for summary judgment alleging
abrogated pursue the right motion, denying action. After the trial court certified its order immediate review. This court granted petition interlocutory appeal.
At issue is whether a a medical case can voluntarily dismiss a suit and refile it within the six-month renewal period when the the dismissal and renewal statutes contend that Appellants
run. also Constitution, impartial denying them the Georgia violate the find abro- protection of law. We complete Therefore, she cannot renew med- gates plaintiff’s action. five-year statutory period. beyond the malpractice action ical *2 repose 1985, five-year legislature 1. In enacted a the In pertinent it reads: malpractice cases. medical limitation], in no Notwithstanding two-year statute of [the may brought be an action medical event negligent which or years five after the date on the more than wrongful act or omission occurred. (c) (b). goes further of the same statute
OCGA 9-3-71 Subsection this section is intended cre- provides: “Subsection Code repose abrogation.” 9- OCGA ate a statute of (c). 3-71 between statutes of limitation and
There is distinct difference statutes of normally governs
A the time within statute of limitations be the cause legal proceedings which must commenced after however, A the limits of action accrues. ... is not re- may brought an be time within which action injury The lated to the accrual of occurred, much less been discovered. James not have have 1985)1 (Mass. Samuels, & 486 Ferrera Sons NE2d 58 (1982)). Catalano, 701, 702 (quoting Klein 386 Mass. stands as an statute of absolute; the stat- is the bar of
right of action. The statute Sons, supra, 486 contingent. James Ferrera ute of limitation existing rights repose destroys previously The the NE2d 58. that, statutory period, cause of action the so America, F2d 441 Corp. KSLA-TV 732 longer exists. v. Radio 1984). (5th Cir. voluntarily and questions
This case whether the to dismiss (a) and months, in OCGA 9-2- refile within six as codified §§ 1 Ferrera, by defendant amend original a Massachusetts statute allowed a to add a filing complaint. ing his relate back to the The amended would expired. complaint, even of limitation had a statute after design building] provided negligent building or of a that “in action for no event shall [an design].” years performance [building or Mass. six after of such commenced than adding repose prohibited 2B. General Laws c. The court held that this statute of elapsed. designer/builder six-year after (a), contemplates extinguished or
61 only actions
those a statute of limitation. barred question, To we look to the of the answer adoption. sequence of their The renewal statute has statutes and although Clark v. been effect since amended several times. legislature Newsom, enacted the p. pre- 556, § L. in 1985. Ga. 1. Because we knowledge legislature existing sume the enacts all statutes with language considering laws, we construe the preexisting Consequently, pro- the visions of the statute enacted latest dismissal and renewal statutes. carry greater weight. time Fos- 530) (1945); George ter v. Ga. C. Car- Langford roll Constr. Co. v. Constr. says upon
The renewal “the renewed case shall stand footing, original sup (Emphasis as to same with the case.” (a). plied.) may says § 9-2-61 The statute of “in no event brought medical more than five years negligent wrongful after the date on or which or act omis (b). supplied.) (Emphasis logic sion occurred.” and the OCGA 9-3-71 Both *3 of the statutes lead us to conclude that the legislature never intended dismissal and renewal to statutes repose. voluntary overcome action 783) (1980). of the statute dismissal terminates the completely. Page (262 Holiday Inns, v. 245 Ga. SE2d (a) pursuant “An action renewed to OCGA 9-2-61 is an (359 App. Gluckman, de novo.” Adams v. 183 Ga. SE2d 710) (1987); (378 182) (1989). Scott, Archie v. 190 Ga. SE2d agree holdings, logically We with these and it follows that a new suit nonexisting proceed. on a cause of action cannot statutory grounds, 2. Because we have resolved this on issue we appellants’ need not reach constitutional claims. J., Fletcher, Hunstein, JJ., reversed. Judge Roy disqualified. Lilly concur; Benham, J., M. Sears-Collins, J., dissents. dissenting.
Benham, Justice,
respectfully disagree
majority’s
I
with conclusion that the
repose abrogates appellee’s timely-filed
renewal action.
Relying
foreign
majority
law,
on
and federal case
a
describes
unyielding
absolute,
of
as
barrier to a
right
action,
of
not related to the accrual of
cause of action. Ma-
jority, p.
(401
Browning Maytag Corp.,
in
In the case at
cause
(b),
repose,
the statute of
was enacted
and OCGA 9-3-71
Browning,
cannot be
holding
our
1985. Under
in her
of action that
appellee
right
used to divest
vested
prior to the
the statute of
had accrued
enactment of
As
of the cause of
not the date
suit
it
the accrual
filed,
concerning the retroactive
point
was
is the determinative
lawsuit is
application
appellee’s
the fact that
(a)
timely-filed
no effect
renewal action under OCGA
appel-
cannot be used
divest
fact
Appellee
only
in her
have filed
right
lee’s vested
to enforce
applicable
statute of limitation
within
effect,
nothing
her cause of action. The renewal
does
for six months from the date
than extend the statute of limitation
dismissed,
applicable
for a case
after the
dismissal
adjudicate the merits of
grounds
that do not
Asbury
Hackney v.
As it is of our of her retroactively appellee to divest cannot used action, I the ma- respectfully dissent from vested her cause of appellants’ motion for jority’s of the trial court’s denial of reversal summary judgment. *4 March Wheeler, Tanner, B. Weinberg, G. Milton
Long, Ansley & Robert appellants. Satcher Melikian,
Remler, Near, Koski, Koski & Robert C. Marc G. appellee.