statute of limitation defense in Georgia

2021“A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6).” Dept. of Transp. v. 2 Mixon, 355 Ga. App. 463 , 465 (2) ( 844 SE2d 524 ) (2020), quoting Petree v. Ga. Dept. of Transp., 340 Ga. App. 694, 704 (3) (a) ( 798 SE2d 482 ) (2017) (physical precedent only).

2021“A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6).” Dept. of Transp. v. 2 Mixon, 355 Ga. App. 463 , 465 (2) ( 844 SE2d 524 ) (2020), quoting Petree v. Ga. Dept. of Transp., 340 Ga. App. 694, 704 (3) (a) ( 798 SE2d 482 ) (2017) (physical precedent only).

2020The appellate standard of review for a plea in bar asserting a statute-of- limitation defense is a “de novo review of the issue of laws.”7 And because this ruling involves a mixed question of law and fact, we “accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous,[8] but 7 State v. Campbell, 295 Ga. App. 856, 856 ( 673 SE2d 336 ) (2009) (punctuation omitted); accord State v. Conzo, 293 Ga. App. 72, 73 ( 666 SE2d 404 ) (2008). 8 A trial court’s factual findings are not clearly erroneous if there is “any evidence to support them.” Jones v.

2020The appellate standard of review for a plea in bar asserting a statute-of- limitation defense is a “de novo review of the issue of laws.”7 And because this ruling involves a mixed question of law and fact, we “accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous,[8] but 7 State v. Campbell, 295 Ga. App. 856, 856 ( 673 SE2d 336 ) (2009) (punctuation omitted); accord State v. Conzo, 293 Ga. App. 72, 73 ( 666 SE2d 404 ) (2008). 8 A trial court’s factual findings are not clearly erroneous if there is “any evidence to support them.” Jones v.

1993“The statute of limitation defense is a matter to be considered by a court having proper jurisdiction of the merits. [Cit.]” Hight v. Blankenship, 199 Ga. App. 744, 745 ( 406 SE2d 241 ) (1991).

1993“The statute of limitation defense is a matter to be considered by a court having proper jurisdiction of the merits. [Cit.]” Hight v. Blankenship, 199 Ga. App. 744, 745 ( 406 SE2d 241 ) (1991).

2017See Humphrey v. State, 299 Ga. 197, 199 (2) ( 787 SE2d 169 ) (2016); Barnes v. State, 291 Ga. 831 , 833 n.2 ( 732 SE2d 752 ) (2012).

2017See Humphrey v. State, 299 Ga. 197, 199 (2) ( 787 SE2d 169 ) (2016); Barnes v. State, 291 Ga. 831 , 833 n.2 ( 732 SE2d 752 ) (2012).

2014See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 ( 573 SE2d 369 ) (2002) (holding that this Court has the discretion to affirm under the “right for any reason” rule or remand for the trial court to consider an issue not addressed below). 7.

2014See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 ( 573 SE2d 369 ) (2002) (holding that this Court has the discretion to affirm under the “right for any reason” rule or remand for the trial court to consider an issue not addressed below). 7.

2014But an issue or case is “[‘]moot[’] when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) ( 508 SE2d 653 ) (1998).

2014But an issue or case is “[‘]moot[’] when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) ( 508 SE2d 653 ) (1998).

2013See id. (defendant’s failure to raise a statute of limitation defense by pleading or motion before judgment waived the issue on appeal); see also Int’l Furniture, supra at 103 (2) (affirming grant of summary judgment when defendant’s affidavit attempted to raise affirmative defense of failure of consideration only in opposition to plaintiff’s motion for summary judgment). 6 3.

2013Furniture, supra at 103 (2) (affirming grant of summary judgment when defendant’s affidavit attempted to raise affirmative defense of failure of consideration only in opposition to plaintiff’s motion for summary judgment). 3.

2013See id. (defendant’s failure to raise a statute of limitation defense by pleading or motion before judgment waived the issue on appeal); see also Int’l Furniture, supra at 103 (2) (affirming grant of summary judgment when defendant’s affidavit attempted to raise affirmative defense of failure of consideration only in opposition to plaintiff’s motion for summary judgment). 6 3.

2013See id. (defendant’s failure to raise a statute of limitation defense by pleading or motion before judgment waived the issue on appeal); see also Inti.

2009Cooke does not claim that the trial court erred in its denial of her motion to dismiss her indictment based upon this related civil action. 4 See State v. Barker, 277 Ga. App. 84, 87 (3) ( 625 SE2d 500 ) (2005) (if it appears on face of indictment that statute of limitation has run, indictment is fatally defective and subject to demurrer, unless indictment alleges exception removing bar of statute). 5 See State v. Conzo, 293 Ga. App. 72, 73 ( 666 SE2d 404 ) (2008) (“The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the *413 issu

2009Cooke does not claim that the trial court erred in its denial of her motion to dismiss her indictment based upon this related civil action. 4 See State v. Barker, 277 Ga. App. 84, 87 (3) ( 625 SE2d 500 ) (2005) (if it appears on face of indictment that statute of limitation has run, indictment is fatally defective and subject to demurrer, unless indictment alleges exception removing bar of statute). 5 See State v. Conzo, 293 Ga. App. 72, 73 ( 666 SE2d 404 ) (2008) (“The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the *413 issu

2011See Pippin, 269 Ga.App. at 26-27 , 602 S.E.2d 911 .

2011See Pippin, 269 Ga. App. at 26-27 .

2009United States v. Watford, 468 F3d 891, 908 (6th Cir. 2006).

2008United States v. Watford, 468 F3d 891, 908 (6th Cir. 2006).

2025The same distinction is true of the County’s reliance on Memar v. Styblo, 293 Ga. App. 528, 529, n. 3 ( 667 SE2d 388 ) (2008).

2025The same distinction is true of the County’s reliance on Memar v. Styblo, 293 Ga. App. 528, 529, n. 3 ( 667 SE2d 388 ) (2008).

2025Co., 204 Ga. App. 322, 322 ( 419 SE2d 99 ) (1992) (affirming the grant of a defendant’s motion to dismiss when an assignee took the assignment of a claim “subject to defenses against the assignor”; defendant was entitled to assert a statute of limitation defense against the assignee just as it would have against the assignor).

2025Co., 204 Ga. App. 322, 322 ( 419 SE2d 99 ) (1992) (affirming the grant of a defendant’s motion to dismiss when an assignee took the assignment of a claim “subject to defenses against the assignor”; defendant was entitled to assert a statute of limitation defense against the assignee just as it would have against the assignor).

2024See Oconee County v. Cannon, 310 Ga. 728, 735 (2) ( 854 SE2d 531 ) (2021) (“the defendant’s knowledge, not the nature of the plaintiff’s mistake, is the key factor in determining whether relation-back applies”); Seay, 353 Ga. App. at 381 (1) (“mere delay in seeking leave to amend was 6 not a sufficient reason for denying the plaintiffs’ motion[, and] the loss of a statute of limitation defense is not the type of prejudice necessary to foreclose such amendment”) (citation and punctuation omitted).

2024See Oconee County v. Cannon, 310 Ga. 728, 735 (2) ( 854 SE2d 531 ) (2021) (“the defendant’s knowledge, not the nature of the plaintiff’s mistake, is the key factor in determining whether relation-back applies”); Seay, 353 Ga. App. at 381 (1) (“mere delay in seeking leave to amend was 6 not a sufficient reason for denying the plaintiffs’ motion[, and] the loss of a statute of limitation defense is not the type of prejudice necessary to foreclose such amendment”) (citation and punctuation omitted).

2024Indeed, unlike a statute-of-limitation defense (which must be properly raised or is waived), a contractual-suit limitation—such as the one at issue here—is a policy defense and not an affirmative defense that must be delineated in an answer.7 And importantly, we have previously explained that a policy defense survives default judgment and may be asserted at a trial on damages because “while a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein.”8 As our Supreme Court has rightly 7 Compare Sam’s Wholesal

2024Indeed, unlike a statute-of-limitation defense (which must be properly raised or is waived), a contractual-suit limitation—such as the one at issue here—is a policy defense and not an affirmative defense that must be delineated in an answer.7 And importantly, we have previously explained that a policy defense survives default judgment and may be asserted at a trial on damages because “while a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein.”8 As our Supreme Court has rightly 7 Compare Sam’s Wholesal

2024Indeed, “[t]he rules of discovery, under our Civil Practice Act, are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material[.]”16 Upon motion by a party, our law allows for sanctions of varying degrees when inaccurate, incomplete, or intentionally misleading discovery responses create 15 Cf. Walker v. Sutton, 222 Ga. App. 638, 639 (1) ( 476 SE2d 34 ) (1996) (holding that the plaintiff had detrimentally relied on defendant’s representations in his interrogatory responses, answer, and pretrial order that he was the owner of a truck and employer o

2024Indeed, “[t]he rules of discovery, under our Civil Practice Act, are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material[.]”16 Upon motion by a party, our law allows for sanctions of varying degrees when inaccurate, incomplete, or intentionally misleading discovery responses create 15 Cf. Walker v. Sutton, 222 Ga. App. 638, 639 (1) ( 476 SE2d 34 ) (1996) (holding that the plaintiff had detrimentally relied on defendant’s representations in his interrogatory responses, answer, and pretrial order that he was the owner of a truck and employer o

2024Indeed, “[t]he rules of discovery, under our Civil Practice Act, are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material[.]”16 Upon motion by a party, our law allows for sanctions of varying degrees when inaccurate, incomplete, or intentionally misleading discovery responses create 15 Cf. Walker v. Sutton, 222 Ga. App. 638, 639 (1) ( 476 SE2d 34 ) (1996) (holding that the plaintiff had detrimentally relied on defendant’s representations in his interrogatory responses, answer, and pretrial order that he was the owner of a truck and employer o

2024Indeed, “[t]he rules of discovery, under our Civil Practice Act, are designed to narrow and clarify the issues and to remove the potential for secrecy and hiding of material[.]”16 Upon motion by a party, our law allows for sanctions of varying degrees when inaccurate, incomplete, or intentionally misleading discovery responses create 15 Cf. Walker v. Sutton, 222 Ga. App. 638, 639 (1) ( 476 SE2d 34 ) (1996) (holding that the plaintiff had detrimentally relied on defendant’s representations in his interrogatory responses, answer, and pretrial order that he was the owner of a truck and employer o

2022But One Bonehead did not assert a statute of limitation defense, and “a trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.” Spann v. Davis, 312 Ga. 843, 847 (1) ( 866 SE2d 371 ) (2021) (citation and punctuation omitted).

2022But One Bonehead did not assert a statute of limitation defense, and “a trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.” Spann v. Davis, 312 Ga. 843, 847 (1) ( 866 SE2d 371 ) (2021) (citation and punctuation omitted).

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022In that motion, however, Jason’s new counsel raised a single ineffective-assistance claim based only on trial counsel’s failure to request limiting instructions before audio recording transcripts were shown appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”) (citation and punctuation omitted); see also generally Vaughn v. State, 324 Ga. App. 289, 29

2022See also Hedquist v. Merrill Lynch, Pierce, Fenner & Smit,, 272 Ga. 209, 213 (3) ( 528 SE2d 508 ) (2000) (“until such time as the trial court rules on an asserted affirmative defense, the action is voidable, not void”). 5 Here, the trial “court’s consideration of an affirmative defense that . . . had not [been] raised was error.

2022See also Hedquist v. Merrill Lynch, Pierce, Fenner & Smit,, 272 Ga. 209, 213 (3) ( 528 SE2d 508 ) (2000) (“until such time as the trial court rules on an asserted affirmative defense, the action is voidable, not void”). 5 Here, the trial “court’s consideration of an affirmative defense that . . . had not [been] raised was error.

2021We review the grant of any motion to dismiss de novo, applying the rule that “a motion to dismiss should not be granted unless 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.” Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 752 (2) ( 751 SE2d 545 ) (2013) (citation and punctuation omitted).

2021We review the grant of any motion to dismiss de novo, applying the rule that “a motion to dismiss should not be granted unless 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.” Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 752 (2) ( 751 SE2d 545 ) (2013) (citation and punctuation omitted).

2021Indeed, the case law is clear: because McWilliams “did not serve [Parker] in the original suit prior to dismissal, [he] cannot utilize the renewal statute to avoid the statute of limitation bar to [his] second suit.” Hudson v. Mehaffey, 239 Ga. App. 705, 706 ( 521 SE2d 838 ) (1999); accord Alston, __ Ga. App. at __; Stephens, 271 Ga. App. at 142 .

2021Indeed, the case law is clear: because McWilliams “did not serve [Parker] in the original suit prior to dismissal, [he] cannot utilize the renewal statute to avoid the statute of limitation bar to [his] second suit.” Hudson v. Mehaffey, 239 Ga. App. 705, 706 ( 521 SE2d 838 ) (1999); accord Alston, __ Ga. App. at __; Stephens, 271 Ga. App. at 142 .