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Orr v. River Edge Cmty. Serv. Bd.

Court of Appeals of Georgia

March 18, 2015

ORR
v.
RIVER EDGE COMMUNITY SERVICE BOARD et al

Cert. applied for.

Statute of limitation. Twiggs State Court. Before Judge Flanders, pro hac vice.

The Boston Law Firm, Russell M. Boston, Wendy S. Boston, for appellant.

Samuel S. Olens, Attorney General, Kirsten S. Daughdril, Senior Assistant Attorney General, for appellees.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 309

Miller, Judge.

Georgia Orr filed a wrongful death suit under the Georgia Tort Claims Act against River Edge Community Service Board (" River Edge" ) and the Department of Behavioral Health and Developmental Disabilities (collectively, the " Defendants" ) more than four years after her husband was struck and killed by a van driven by a River Edge employee. The Defendants filed a motion to dismiss on the grounds that Orr's ante litem notice was not timely and her complaint was barred by the two-year statute of limitation. The Defendants also moved to dismiss and sought summary judgment based on the prior pending action rule (OCGA § 9-2-44 (a)).[1] The trial court granted the Defendants' motions and dismissed Orr's lawsuit, finding that it was time-barred and subject to abatement. Orr appeals, contending that (1) the statute of limitation was tolled by the pending criminal prosecution of the van's driver and (2) her lawsuit was not abated under the prior pending action rule. For the reasons that follow, we affirm the trial court's ruling.

[331 Ga.App. 229] Whether a cause of action is barred by the statute of limitation is a mixed question of fact and, where the facts are not in dispute, the question is one of law for the court. See McGhee v. Jones, 287 Ga.App. 345, 347 (2) (652 S.E.2d 163) (2007).

On February 5, 2007, Francena Chisholm-Moss, driving a van in the course of her employment with River Edge, struck pedestrian Elijah Orr, causing injuries that resulted in his death. Chisholm-Moss was issued a traffic citation, but the warrant against her was ultimately dismissed.[2] Orr did not give ante litem notice to River Edge until February 17, 2010, she did not give ante litem notice to the Department of Behavioral Health and Developmental Disabilities until March 8, 2010, and she did not file the instant suit against the Defendants until October 26, 2011. Orr did not file suit against Chisholm-Moss, the driver of the van.

The Defendants, River Edge and the Department of Behavioral Health and Developmental Disabilities, filed a motion to dismiss on the basis that Orr's ante litem notice was not timely and her complaint was barred by the statute of limitation, which expired in

Page 310

February 2009, two years after the accident occurred, or, at the latest, in September 2009, two years after the prosecutor decided not to press charges against Chisholm-Moss. The trial court dismissed Orr's lawsuit, finding that it was time-barred because the prosecution against Chisholm-Moss terminated in September 2007 and, thus, the statute of limitation expired in September 2009. This appeal ensued.

1. Orr contends that her case against the Defendants was not time-barred because the pending criminal prosecution of Chisholm-Moss did not terminate until February 2011, when the criminal statute of limitation expired, and the trial court erred in determining ...


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