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Robinson v. Estate of Jester

Court of Appeals of Georgia

July 13, 2015

ROBINSON
v.
ESTATE OF WALTER JESTER et al. MAYES
v.
ESTATE OF WALTER JESTER et al

Statute of limitation. Spalding Superior Court. Before Judge Crawford.

Dozier Law Firm, J. W. Dozier, for appellants.

Beck, Owen & Murray, William M. Dallas III, Janice M. Wallace, for appellees.

OPINION

Page 570

McFadden, Judge.

These appeals arise from trial court orders granting defense motions for summary judgment.[1] Because the trial court erred in finding that the lawsuits are barred by the statute of limitation, we reverse.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

[333 Ga.App. 42] MARTA v. Maloof, 304 Ga.App. 824, 825 (698 S.E.2d 1) (2010) (citation omitted).

So viewed, the record shows that on February 12, 2010, Walter Jester was involved in an automobile accident with Appellants Walter Robinson and Eric Mayes. Unbeknownst to Robinson and Mayes, Jester died on October 30, 2011. On December 22, 2011, Robinson and Mayes filed personal injury actions against Jester arising out of the accident. Robinson and Mayes subsequently learned of Jester's death when the sheriff was unable to perfect service of process. On February 1, 2012, Robinson and Mayes moved to add Jester's then-unrepresented estate as a defendant, and the trial court granted the motions. On February 23, 2012, Edward Bullard was appointed as administrator of Jester's estate. Four days later, on February 27, 2012, Robinson and Mayes filed their amended complaints which averred, among other things, that Jester was deceased, that Bullard was the administrator of the estate and could be served with the complaint, and that damages for Jester's negligence could be satisfied by the estate property. On February 28, 2012, Bullard, as administrator of Jester's estate, acknowledged service of the complaints.

The two-year statute of limitation for Robinson's and Mayes' personal injury actions, OCGA § 9-3-33, was tolled between Jester's death and the appointment of the estate administrator, OCGA § 9-3-92. It therefore expired on June 25, 2012.

Thereafter, on January 14, 2013, Robinson and Mayes moved the court for permission to amend their complaints a second time to add Bullard as a defendant, and the trial court granted the motions. On January 28, 2013, Robinson and Mayes filed amended complaints identifying Bullard, in his capacity as administrator of the estate, as a defendant. The amended complaints were virtually identical to the previous amended complaints, again averring that Jester was deceased, that Bullard was the administrator of Jester's estate, and that the estate administrator was liable for paying damages for Jester's negligence.

On July 8, 2013, Robinson and Mayes (for reasons not apparent from the record or relevant to this appeal) voluntarily dismissed their lawsuits without prejudice. On August 21, 2013, Robinson and Mayes filed the instant

Page 571

lawsuits against the estate of Jester and Bullard as renewals of their ...


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