Case Information
*1 SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, J. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 20, 2017 In the Court of Appeals of Georgia
A17A0590. WHITESELL, et al. v. GEORGIA POWER
COMPANY.
M ILLER , Presiding Judge.
This appeal arises from the death of Leroy Vernon Jones after he was struck by vehicles while walking along a road at night in Valdosta. The administrators of Jones’s estate and his daughter (collectively “Whitesell”) timely sued Georgia Power Company (“Georgia Power”), alleging that inadequate lighting on the road caused Jones’s death. After Whitesell voluntarily dismissed that suit, he filed an attempted renewal suit. Whitesell now appeals from the trial court’s dismissal of his attempted renewal suit. For the following reasons, wе affirm.
We review a trial court’s grant of a motion to dismiss de novo. Brown v. J.H.
Harvey Co.
,
So viewed, the parties agree that Jones died on Novеmber 14, 2011, that Whitesell filed a wrongful death lawsuit against several parties, including Georgia Power, on November 13, 2013, (the “2013 Suit”), and that Whitesell vоluntarily dismissed the 2013 Suit on March 5, 2014. Whitesell did not include the pleadings related to the 2013 Suit in the record for this Court to review. Whitesell subsequently filed the instant lawsuit solely against Georgia Power on August 27, 2014 (the “2014 Suit”). The complaint filed in the 2014 Suit, however, made no reference to the 2013 Suit.
Georgia Power timely answered the 2014 Suit and moved to dismiss it. Whitesell opposed the motion to dismiss and, in response to it, amendеd the 2014 Suit to state: “[t]his is a renewal action against the Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia, under Civil Action #2013CV2462.” In a brief order, the trial court granted Georgia Power’s motion to dismiss.
1. In his sole enumeration of error, Whitesеll contends that the trial court erred in dismissing the 2014 Suit. We find no error.
Whitesell had 2 years to file suit, and it is undisputed that the statute of
limitations on the claim expired on November 14, 2013, the day after suit was filed.
OCGA § 9-3-33. Although suit generally must be filed prior to expiration of the
statute of limitations, Georgia law provides an exception for filing a renewal suit after
the expiration of the statute of limitations in сertain circumstances. Specifically,
Whitesell’s right to take advantage of this exception and file a renewal suit is
gоverned by OCGA § 9-2-61 and the cases interpreting it.
Belcher v. Folsom
, 258 Ga.
App. 191 (
When any case has been commenced . . . 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 limitations or within six months after the discontinuance or dismissal, whichever is later . . . provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable pеriod of limitation, this privilege of renewal shall be exercised only once.
OCGA § 9-2-61 (a).
The 2014 Suit was filed after the expiration of the stаtute of limitations, consequently, for the suit to survive a motion to dismiss, Whitesell needed to show *4 entitlement to file a renewal suit and that he followed the proper procedure to file a renewal suit.
It is well settled that,
in order to show the right to renew the suit within six months after the dismissаl of a prior suit on the same cause of action, when such right is relied upon to relieve the plaintiff of the bar of the stаtute of limitation, it is necessary for the renewal petition to show affirmatively that the former petition was not a void suit, that it is such a valid suit as may be renewed under OCGA § 9-2-61, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition.
(Footnote, citation, and punctuation omitted; emphasis supplied.)
Belcher
, supra, 258
Ga. App. at 192; see also
Morrison v. Bowen
,
Here, when Georgia Power moved to dismiss the complaint based, in part, on Whitesell’s failure to plead that the 2014 Suit wаs properly filed as a renewal action, Whitesell amended his 2014 complaint. The amended language, however, failеd to cure the defect in a manner which complies with the requirements set out by case law. Instead, the amended comрlaint simply stated “[t]his is a renewal action against the Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia, under Civil Action #2013CV2462.”
Pretermitting whether the amendment to the 2014 Suit related back, the
amended language of the 2014 Suit does not
affirmatively show
that thе 2013 Suit
was not void, pleadings from the 2013 Suit are not in the record on appeal for this
Court to review, and the record does not show that the trial court exercised its
discretion to take judicial notice of the 2013 Suit. Moreover, the 2014 Suit, as
amended, doеs not state that it is based upon substantially the same cause of action
as the 2013 Suit, or that the 2013 Suit was not dismissed on its merits. Indeed, we
have found language more descriptive than the amended language in the 2014 Suit
to be insufficient to
affirmatively show
that a renewal suit is properly filed. See
Morrison
, supra,
Here, Whitesell failed to affirmatively show in his pleading that the 2014 Suit
was a propеrly filed renewal suit as required by this Court’s prior case law.
Consequently, the trial court properly dismissed the 2014 Suit. To allow Whitesell’s
suit to proceed would be to disregard this Court’s prior precedent interpreting OCGA
§ 9-2-61 (a), and that we cannot do. We acknowledgе that the result of our holding
is that Whitehall is permanently barred from asserting these claims against Georgia
Power, and we do not tаke that result lightly. Nonetheless, our case law is clear about
what a plaintiff seeking to avoid a statute of limitations bar must plead in a renewal
lawsuit. See e.g.
Belcher
, supra,
2. In light of this holding, we need not address the timeliness of service of
process on Georgia Power.
Judgment affirmed. Doyle, C. J., and Reese, J., concur .
