WHITESELL Et Al. v. GEORGIA POWER COMPANY

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.
MILLER, 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, we affirm.
We review a trial court’s grant of a motion to dismiss de novo. Brown v. J.H.
Harvey Co., 268 Ga. App. 322 (1) (601 SE2d 808) (2004).
So viewed, the parties agree that Jones died on November 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 voluntarily
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, amended 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, Whitesell contends that the trial court erred
in dismissing the 2014 Suit. We find no error.
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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 certain circumstances. Specifically,
Whitesell’s right to take advantage of this exception and file a renewal suit is
governed by OCGA § 9-2-61 and the cases interpreting it. Belcher v. Folsom, 258 Ga.
App. 191 (573 SE2d 447) (2002). That statute provides:
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 period 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 statute of limitations,
consequently, for the suit to survive a motion to dismiss, Whitesell needed to show
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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
dismissal 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 statute 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, 106 Ga. App. 464 (2) (127 SE2d 194)
(1962) (citing Talley v. Commercial Credit Co. of Georgia, 173 Ga. 828 (2) (161 SE
832) (1931)). Our Supreme Court has ruled that when a renewal action has been filed
in the same court as the original action, the trial court may take judicial notice of the
physical record from the original action in determining if the renewed action met the
tests for renewal. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). The
trial court, however, is not required to take this judicial notice. Id.4
Here, when Georgia Power moved to dismiss the complaint based, in part, on
Whitesell’s failure to plead that the 2014 Suit was properly filed as a renewal action,
Whitesell amended his 2014 complaint. The amended language, however, failed to
cure the defect in a manner which complies with the requirements set out by case law.
Instead, the amended complaint 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 the 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, does 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, 106 Ga. App. at 464 (3) (renewal complaint was insufficient, even
though it identified date original suit filed and its case number, stated that both suits
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were against the same defendants, and stated the date of the order dismissing the
original case).
Here, Whitesell failed to affirmatively show in his pleading that the 2014 Suit
was a properly 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 acknowledge that the result of our holding
is that Whitehall is permanently barred from asserting these claims against Georgia
Power, and we do not take 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, 258 Ga. App. at 192. If the trial court has not taken
judicial notice of a prior lawsuit, then the plaintiff must affirmatively show in the
complaint that the renewal lawsuit is properly filed. Id.; Petkas, supra, 252 Ga. at 108.
This was not shown conclusively in this case. Belcher and similar cases provide
parties with the advantageous benefit of clarity with regard to pleading requirements
for filing for a renewal suit, however, when a party disregards the requirements
clearly stated by this Court, the harsh result of dismissal can result. Accordingly, the
trial court did not err.
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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.
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