WHITESELL, et al.
GEORGIA POWER COMPANY.
C. J., MILLER, P. J., and REESE, J.
Miller, Presiding Judge.
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.
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 S.E.2d 808) (2004).
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.
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.
his sole enumeration of error, Whitesell contends that the
trial court erred in dismissing the 2014 Suit. We find no
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 S.E.2d 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.
§ 9-2-61 (a).
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 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
(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
S.E.2d 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. ...