Towe v. Connors, 644 S.E.2d 176 (Ga. Ct. App. 2007). · Go Syfert
Towe v. Connors, 644 S.E.2d 176 (Ga. Ct. App. 2007). Cases Citing This Book View Copy Cite
18 citation events (18 in the last 25 years) across 3 distinct courts.
Strongest positive: GOTEL v. CARTER (gamd, 2021-11-04)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) GOTEL v. CARTER
M.D. Ga. · 2021 · quote attribution · 1 verbatim quote · confidence high
dismissal based upon the expiration of the statute of limitation is in essence dismissal for failure to state a claim upon which relief can be granted.
cited Cited as authority (rule) Alr Oglethorpe v. C. Gerald Henderson
Ga. Ct. App. · 2016 · confidence medium
(Citations omitted.) Towe v. Connors, 284 Ga. App. 320, 321 ( 644 SE2d 176 ) (2007).
discussed Cited as authority (rule) Ann Dove v. Ty Cobb Healthcare
Ga. Ct. App. · 2012 · confidence medium
Auth., 265 Ga. 864, 865 (1) ( 463 SE2d 5 ) (1995) (per curiam). 13 Id. at 865-66 (1). 14 Id. at 866 (1). 15 See Towe v. Connors, 284 Ga. App. 320, 321 ( 644 SE2d 176 ) (2007) (“Dismissal based upon the expiration of the statute of limitation is in essence a dismissal for failure to state a claim upon which relief can be granted[, and a] dismissal on this ground is a decision on the merits, and the doctrine of res judicata bars a subsequent lawsuit on this claim.” (citation omitted)). 6 constituting simple negligence instead of professional negligence.16 And while Dove argues that she is no…
discussed Cited as authority (rule) Montague v. Godfrey
Ga. Ct. App. · 2008 · confidence medium
In contrast, dismissal based upon expiration of the statute of limitation under OCGA § 9-11-12 (b) (6) “is a decision on the merits, and the doctrine of res judicata bars a subsequent lawsuit on [such a] claim.” (Citation omitted.) Towe v. Connors, 284 Ga. App. 320, 321 ( 644 SE2d 176 ) (2007).
discussed Cited "see" Silver Comet Terminal Partners, LLC v. Paulding County, Georgia (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See Towe v. Connors, 284 Ga. App. 320, 321 ( 644 SE2d 176 ) (2007) (dismissal based on affirmative defense of statute of limitation “is in essence dismissal for failure to state a claim upon which relief can be granted”) (citation omitted). 2 (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.
discussed Cited "see" Avery v. Paulding Cnty. Airport Auth. (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See Towe v. Connors , 284 Ga. App. 320 , 321, 644 S.E.2d 176 (2007) (dismissal based on affirmative defense of statute of limitation "is in essence dismissal for failure to state a claim upon which relief can be granted") (citation omitted).
discussed Cited "see" Dove v. Ty Cobb Healthcare Systems, Inc. (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Towe v. Connors, 284 Ga. App. 320, 321 ( 644 SE2d 176 ) (2007) (“Dismissal based upon the expiration of the statute of limitation is in essence dismissal for failure to state a claim upon which relief can he granted!, and a] dismissal on this ground is a decision on the merits, and the doctrine of res judicata bars a subsequent lawsuit on this claim.” (citation omitted)).
Towe
v.
Connors
A06A2483.
Court of Appeals of Georgia.
Mar 19, 2007.
644 S.E.2d 176
2007 Ga. App. LEXIS 294
Van C. Wilks, for appellant., Talley, French & Kendall, Maureen E. Murphy, for appellee.
Bernes, Barnes, Andrews.
Cited by 10 opinions  |  Published
Pinpoint authority: bottom 50%
Bernes, Judge.

Jerry Dale Towe appeals the dismissal with prejudice of his personal injury action against Darryl Martin Connors. The trial court dismissed the action because the statute of limitation had expired prior to the filing of Towe’s lawsuit. We find no error and affirm.

The record reflects that Towe filed two lawsuits seeking damages for personal injuries sustained as a result of an automobile accident that occurred in Oconee County on July 31, 2003. Towe filed the first action on July 13,2005 in the Clarke County Superior Court. Connors was never served with this lawsuit. The second lawsuit, the instant action, was filed on August 12, 2005 in the Oconee County Superior Court. After Connors received notorious service of process, he filed an answer by special appearance and moved to dismiss the action with prejudice on the ground that Towe had failed to file the action within the period authorized by the relevant statute of limitation. The trial court granted the motion.

“Actions for injuries to the person shall be brought within two years after the right of action accrues.” OCGA § 9-3-33. The automobile accident from which Towe’s personal injuries claim arose occurred on July 31, 2003. Towe did not file the instant action until August 12, 2005, more than two years after the action accrued.

OCGA § 9-2-61 (a) permits the renewal of an action after its dismissal by filing a new complaint within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. But if the original suit is void, then the second suit is not a renewal suit under OCGA § 9-2-61 (a) and cannot rely on the original suit’s filing date for statute of limitations purposes. The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit.

(Citations and punctuation omitted.) McClendon v. Kroger Co., 279 Ga. App. 417, 418-419 (631 SE2d 461) (2006). “[A] void action cannot be renewed after the statute of limitation has run.” (Punctuation and footnote omitted.) Askins v. Colon, 270 Ga. App. 737, 738-739 (1) (608 SE2d 6) (2004).

Here, Towe’s initial action, though filed within the statute of limitation period, was void because service was never perfected. Thus, Towe’s second lawsuit, filed outside the statute of limitation period, was not a renewal action and was properly dismissed.

[*321] Decided March 19, 2007. Van C. Wilks, for appellant. Talley, French & Kendall, Maureen E. Murphy, for appellee.

Towe nevertheless claims that the dismissal should not have been entered with prejudice so as to bar him from filing any further action. We disagree. The statute of limitation is an affirmative defense which acts as a bar to recovery. Dept. of Human Resources v. Nation, 265 Ga. App. 434, 439 (3) (594 SE2d 383) (2004). Dismissal based upon the expiration of the statute of limitation is in essence dismissal for failure to state a claim upon which relief can be granted. See U. S. Fidelity &c. Co. v. Rome Concrete Pipe Co., 256 Ga. 661, 663 (353 SE2d 15) (1987) (“statutes of limitation... provide a date certain after which potential defendants can no longer be held liable for claims brought in such actions”). A dismissal on this ground is a decision on the merits, and the doctrine of res judicata bars a subsequent lawsuit on this claim. See Brown v. J. H. Harvey Co., 268 Ga. App. 322, 324 (3) (601 SE2d 808) (2004).

Judgment affirmed.

Barnes, C. J., and Andrews, P. J., concur.