O.C.G.A. § 9-2-61 (2019)

Annotations

Cross references. Dismissal of actions and recommencement within six months, § 9-11-41. Editor’s notes. Ga. L. 1998, p. 862, § 4, not codified by the General Assembly, provides that the 1998 amendment was applicable to cases pending on April 10, 1998, or cases dismissed or discontinued after April 10, 1998. Law reviews. For article, “The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act,” see 3 Ga. St. B.J. 383 (1967). For article surveying judicial developments in Georgia’s trial practice and procedure laws, see 31 Mercer L. Rev. 249 (1979).

For review of 1998 legislation relating to civil practice, see 15 Ga. St. U.L. Rev. 1 (1998). For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For annual survey of insurance law, see 58 Mercer L. Rev. 181 (2006). For article, “What is Reasonable Service?,” see 12 Ga. St. B.J. 22 (2007). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PROCEDURAL CONSIDERATION TIMING APPLICATION General Consideration As to history of this section, see Clark v. Newsome, 180 Ga. 97, 178 S.E. 386, 1935 Ga. LEXIS 186 (1935). Attack on constitutionality not raised at trial. - When a car accident victim voluntarily dismissed the victim’s first action and then filed another action based on the same facts in a different

court, which action was then dismissed due to the limitations bar, the trial court’s later dismissal of the victim’s second renewed complaint was proper as the victim had failed to raise a challenge to the constitutionality of O.C.G.A. § 9-2-61 in the trial court and, therefore, it was not reviewable on appeal; as the constitutionality issue was the only one raised on appeal, the trial court’s dismissal of the

General Consideration (Cont’d) action was held to be proper. Watson v. Frnka, 266 Ga. App. 64, 596 S.E.2d 187, 2004 Ga. App. LEXIS 222 (2004). This section is remedial and should be liberally construed. Cox v. Berry, 13 Ga. 306, 1853 Ga. LEXIS 84 (1853); Atlanta, K. & N. Ry. v. Wilson, 119 Ga. 781, 47 S.E. 366, 1904 Ga. LEXIS 360 (1904); Lamb v. Howard, 150 Ga. 12, 102 S.E. 436, 1920 Ga. LEXIS 5 (1920); Southern Ry. v. Pruitt, 121 Ga. App. 530, 174 S.E.2d 249, 1970 Ga. App. LEXIS 1271 (1970). This section, being remedial in nature, is to be liberally construed so as to preserve the right to renew a cause of action set out in the previous action wherever same has been disposed of on any ground other than one affecting the merits. United States Cas. Co. v. AMOCO, 104 Ga. App. 209, 121 S.E.2d 328, 1961 Ga. App. LEXIS 642 (1961); Hiley v. McGoogan, 177 Ga. App. 809, 341 S.E.2d 461, 1986 Ga. App. LEXIS 1549 (1986). This is a remedial statute and is to be liberally construed when the first action is disposed of on grounds not affecting merits of the case. Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560, 1978 Ga. App. LEXIS 2962 (1978). Construction with federal statute. - Georgia Court of Appeals has adopted the grace period approach and construed 28 U.S.C. § 1367(d) as allowing state law claims that would otherwise be timebarred to be refiled in state court, if the claims are refiled no later than 30 days after federal court dismissal. Gottschalk v. Woods, 329 Ga. App. 730, 766 S.E.2d 130, 2014 Ga. App. LEXIS 778 (2014). Construction with O.C.G.A. § 9-119.1. - On the statute’s face, O.C.G.A. § 9-11-9.1(f) requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under O.C.G.A. § 9-2-61. Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23, 793 S.E.2d 98, 2016 Ga. App. LEXIS 574 (2016). Section inapplicable. - Because a personal injury plaintiff failed to file an action against an uninsured/underinsured motorist insurer within the appli-

cable statutory period, and the action was not subject to renewal, as the magistrate court determined that service was made by an unauthorized person, thus rendering the original action void, and, therefore, the insurer was entitled to dismissal. Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505, 2006 Ga. App. LEXIS 1288 (2006). O.C.G.A. § 9-2-61(a) not used to bar statute of repose. - When O.C.G.A. § 9-2-61(a) allows a dismissed action to be renewed after expiration of the applicable statute of limitation, it says nothing about a statute of repose and may not be used to avoid the bar of the statute of repose. Siler v. Block, 204 Ga. App. 672, 420 S.E.2d 306, 1992 Ga. App. LEXIS 975 (1992), aff’d, 263 Ga. 257, 429 S.E.2d 523, 1993 Ga. LEXIS 398 (1993). This section is designed to save causes from the statute of limitations, and applies only to cases which are otherwise barred by the statute of limitations. Moore v. Tootle, 134 Ga. App. 232, 214 S.E.2d 184, 1975 Ga. App. LEXIS 1971 (1975). This section is meant to save case from the statute of limitations when it attaches a pending action. Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495, 1980 Ga. App. LEXIS 2040 (1980). As long as the original suit is filed within the limitation period and the action is properly renewed pursuant to the requirement of O.C.G.A. § 9-2-61(a), the renewed action will not be barred by the statute of limitation. Chinn v. Maxwell, 170 Ga. App. 85, 316 S.E.2d 546, 1984 Ga. App. LEXIS 1810 (1984). Fact that the original suit is dismissed prior to the expiration of the statute of limitations but the renewed action is not instituted until after the expiration of the limitation period does not bar application of O.C.G.A. § 9-2-61(a). Chinn v. Maxwell, 170 Ga. App. 85, 316 S.E.2d 546, 1984 Ga. App. LEXIS 1810 (1984). Since original action was pending in court for over two years before being voluntarily dismissed by the plaintiff and then refiled the same day of plaintiff’s own volition, these actions could not prevent plaintiff from raising the one-year bar of removal against defendant’s notice of removal absent a finding of bad faith or

deception. Hattaway v. Engelhard Corp., 998 F. Supp. 1479, 1998 U.S. Dist. LEXIS 3273 (M.D. Ga. 1998). Relation back only if diligence present. - Service that is perfected after the statute of limitations has run and more than five days after the complaint was filed will relate back to the date of filing only if the plaintiff diligently attempted to perfect service. Morris v. Haren, 52 F.3d 947, 1995 U.S. App. LEXIS 11941 (11th Cir. 1995). Limitation period is not tolled when plaintiff failed to dismiss first complaint prior to filing second complaint. - Appellant’s failure to ensure that the appellant’s first complaint was dismissed prior to the filing of the second complaint deprives the appellant of the protection from the statute of limitation afforded by the renewal statute. Jones v. Cargill, Inc., 191 Ga. App. 843, 383 S.E.2d 206, 1989 Ga. App. LEXIS 804 (1989). When a suit has been filed within the statute of limitations and dismissed after the statute has attached, a party may dismiss, pay all costs, and recommence the action by a new filing of the suit; however, the pending action must have been a valid action that was subject to renewal. Sylvester v. DOT, 252 Ga. App. 31, 555 S.E.2d 740, 2001 Ga. App. LEXIS 1183 (2001). Renewal not permitted after plaintiff failed to exercise diligence to locate defendant in original action. - In a tort action arising from a motor vehicle accident, the plaintiff could not bring a renewal action following a voluntary dismissal, when the plaintiff served the defendant by publication only in the original action and thereafter failed to exercise diligence to locate the defendant. Durland v. Colotl, 359 Ga. App. 170, 855 S.E.2d 83, 2021 Ga. App. LEXIS 114 (2021). Section does not limit rebringing case if statute has not run. - This section has application only when bar of the statute of limitations would otherwise apply, and does not attempt to limit time in which plaintiff may rebring the plaintiff’s case if the statute of limitations on the action has not run. Alewine v. State, 103 Ga. App. 120, 118 S.E.2d 499, 1961 Ga. App. LEXIS 879 (1961).

There is no limitation as to the number of times an action may be brought and dismissed so long as the statute of limitations does not attach. Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495, 1980 Ga. App. LEXIS 2040 (1980). Right of renewal comes into play only if case would otherwise be barred by the statute of limitations. Rakestraw v. Berenson, 153 Ga. App. 513, 266 S.E.2d 249, 1980 Ga. App. LEXIS 1875 (1980). This section does not apply when the original action was not barred by the statute of limitations. Hackney v. Asbury & Co., 124 Ga. 678, 52 S.E. 886, 1906 Ga. LEXIS 584 (1906); Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196, 1934 Ga. App. LEXIS 119 (1934); Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686, 134 S.E.2d 528, 1963 Ga. App. LEXIS 745 (1963). This section is applicable only to save a case from the statute of limitations when it attaches a pending action. Williford v. State, 56 Ga. App. 840, 194 S.E. 384, 1937 Ga. App. LEXIS 247 (1937). This section is not applicable unless, due to dismissal, the bar of the statute of limitations has attached or may attach; and it is to relieve this bar that allowance of six months time in which to renew the action is given. Bowman v. Ware, 133 Ga. App. 799, 213 S.E.2d 58, 1975 Ga. App. LEXIS 2290 (1975). Original action must not have been barred. - Plaintiff who has had an action dismissed other than on the merits may refile within six months if the original action was not barred by the statute of limitations. Covil v. Stansell, 113 Ga. App. 179, 147 S.E.2d 479, 1966 Ga. App. LEXIS 1006 (1966); Schaffer v. City of Atlanta, 151 Ga. App. 1, 258 S.E.2d 674, 1979 Ga. App. LEXIS 2411 (1979), rev’d on other grounds, 245 Ga. 164, 264 S.E.2d 6, 1980 Ga. LEXIS 727 (1980). Under former Code 1933, § 3-808 (see O.C.G.A. § 9-2-61), plaintiff may refile an action within six months following the automatic dismissal mandated by Ga. L. 1967, p. 557, § 1 or Ga. L. 1966, p. 608, § 41 (see O.C.G.A. § 9-2-60 or O.C.G.A. § 9-11-41) if the original action was not barred by the statute of limitations. Berry

General Consideration (Cont’d) v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255, 1973 Ga. App. LEXIS 1360 (1973). First action dismissed with prejudice. - After the trial court dismissed the first action with prejudice, it could not be properly refiled under O.C.G.A. § 9-2-61. Black v. Knight, 231 Ga. App. 820, 499 S.E.2d 69, 1998 Ga. App. LEXIS 29 (1998). Although a patient and a husband had an expert affidavit, they failed to file it with their complaint against a doctor and a professional corporation alleging ordinary and professional negligence, and the trial court’s grant of the motion to dismiss for failure to comply with O.C.G.A. § 911-9.1 was with prejudice, as it was on the merits; as the patient and the husband conceded that they could not seek to amend the complaint by adding the affidavit, and they had failed to voluntarily dismiss their action prior to the trial court having ruled on the motion, the patient and the husband could not seek to renew under O.C.G.A. § 9-2-61. Bardo v. Liss, 273 Ga. App. 103, 614 S.E.2d 101, 2005 Ga. App. LEXIS 363 (2005), cert. denied, No. S05C1425, 2005 Ga. LEXIS 579 (Ga. Sept. 19, 2005). Only one opportunity to renew action. - Since plaintiff refiled a complaint outside the statute of limitations after the plaintiff’s first suit was dismissed for lack of jurisdiction, the plaintiff exercised the plaintiff’s one and only opportunity to validly renew the action under O.C.G.A. § 92-61. White v. KFC Nat’l Mgt. Co., 229 Ga. App. 73, 493 S.E.2d 244. Right to renew a previously dismissed action after the statute of limitation has expired is governed by O.C.G.A. § 9-2-61, subject to the requirement of payment of costs in the original action as required by O.C.G.A. § 9-11-41(d); 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. Belcher v. Folsom, 258 Ga. App. 191, 573 S.E.2d 447, 2002 Ga. App. LEXIS 1392 (2002). Trial court’s dismissal of injured party’s renewed complaint was proper because, even though dismissal under O.C.G.A. § 50-21-26(a)(4) was without prejudice,

the injured party had renewed the action once and could not, under O.C.G.A. § 9-261(a), do so again. Baskin v. Ga. Dep’t of Corr., 272 Ga. App. 355, 612 S.E.2d 565, 2005 Ga. App. LEXIS 292 (2005). In order to show right to renew action within six months after dismissal of prior action on same cause of action, it is necessary for the renewal petition to show affirmatively that the former petition was not a void action, that it was such a valid action as may be renewed under this section, 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 dismissal would act as a bar to rebringing of the petition. Morrison v. Bowen, 106 Ga. App. 464, 127 S.E.2d 194, 1962 Ga. App. LEXIS 732 (1962); Hudnall v. Kelly, 388 F. Supp. 1352, 1975 U.S. Dist. LEXIS 13976 (N.D. Ga. 1975). Trial court did not err in directing verdict for defendants on trover claim because the statute of limitations had ran where plaintiff failed to place in record, by offer of proof or otherwise, evidence that the plaintiff had filed the instant case within six months after dismissal without prejudice of prior action brought within the statute of limitations. Duckworth v. Collier, 164 Ga. App. 139, 296 S.E.2d 640, 1982 Ga. App. LEXIS 2737 (1982). Amended renewal complaint sufficient. - While the plaintiffs’ renewal complaint referenced the original action by name and case number, it did not provide any other information about the prior suit, that suit’s validity, or the claims alleged and, thus, as originally filed, the renewal complaint did not establish the plaintiff’s right to renew. However, the trial court erred in granting the insurer’s motion to dismiss because the plaintiffs filed an amendment to their timely renewal complaint, alleging the facts necessary for renewal and submitted evidence supporting those allegations. Strickland v. Geico General Insurance Company, 358 Ga. App. 158, 854 S.E.2d 348, 2021 Ga. App. LEXIS 25 (2021). Renewal action improperly dismissed under abatement statutes. - After a car buyer dismissed the buyer’s fraud and breach of contract action

against the seller while a counterclaim was pending and then attempted to refile the buyer’s claims under the renewal statute, O.C.G.A. § 9-2-61, the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a). Code Section 9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer’s claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288, 787 S.E.2d 259, 2016 Ga. App. LEXIS 312 (2016). Renewal precluded if requisite expert affidavit was not filed in prior action. - Pursuant to O.C.G.A. § 9-119.1, the renewal provision in O.C.G.A. § 9-2-61(a) did not save a second medical malpractice suit that was filed by plaintiffs, patient and wife, after the statute of limitation but within six months of their voluntary dismissal of a timely first malpractice suit because: (1) plaintiffs failed to attach an O.C.G.A. § 9-11-9.1 expert affidavit to the first complaint and dismissed the first action without giving defendants, doctor and employer, a chance to seek dismissal on that ground; (2) the required affidavit was not executed until after the time for filing such an affidavit in the first action had expired; and (3) defendants raised the affidavit issue in a motion to dismiss contemporaneous with their initial responsive pleadings in the second action. Griffin v. Carson, 255 Ga. App. 373, 566 S.E.2d 36, 2002 Ga. App. LEXIS 632 (2002). Trial court did not err in dismissing with prejudice a patient’s medical malpractice action on the ground that the patient failed to attach the required affidavits under O.C.G.A. § 9-11-9.1, because O.C.G.A. §§ 9-2-61(a) and 9-11-9.1 did not allow amendments of complaints in order to attach affidavits; dismissals for failure to attach such affidavits were dismissals for failure to state a claim and were, therefore, on the merits and with prejudice. Roberson v. Northrup, 302 Ga. App. 405, 691 S.E.2d 547, 2010 Ga. App. LEXIS 144 (2010). Suit which is voluntarily dismissed after the statutory period of limitation has passed may be refiled in the

correct county. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). Dismissal by court on ground not adjudicating merits counts as voluntary dismissal for purposes of this section. Douglas v. Kelley, 116 Ga. App. 670, 158 S.E.2d 441, 1967 Ga. App. LEXIS 923 (1967). Application of O.C.G.A. § 9-11-41. - Dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e)) was not on the merits and a case may be refiled within six months of such dismissal under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61). Calloway v. Harms, 135 Ga. App. 54, 217 S.E.2d 184, 1975 Ga. App. LEXIS 1555 (1975). Dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e)) did not operate as dismissal on the merits pursuant to Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(b)), and after such dismissal the plaintiff has six months to refile the complaint pursuant to former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61). Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225, 213 S.E.2d 915, 1975 Ga. App. LEXIS 1968 (1975). This section is not applicable when decision on merits terminates action. Harp v. Smith, 155 Ga. App. 393, 271 S.E.2d 38, 1980 Ga. App. LEXIS 2596 (1980). Service on uninsured motorist carrier. - When insured brought suit against a driver for negligence, but did not serve the insured’s excess uninsured motorist (UM) carrier under O.C.G.A. § 337-11 until after renewing the suit under O.C.G.A. § 9-2-61, it was error to grant summary judgment to the excess carrier on ground that service was untimely; purpose of § 33-7-11(d) is to provide notice to a UM carrier, not to obtain personal jurisdiction over it or to make it a party defendant, and service on a UM carrier was permissible at any time within which valid service could be made on the defendant. Hayward v. Retention Alternatives, Ltd., 291 Ga. App. 232, 661 S.E.2d 862,

General Consideration (Cont’d) 2008 Ga. App. LEXIS 455 (2008), aff’d, 285 Ga. 437, 678 S.E.2d 877, 2009 Ga. LEXIS 287 (2009). Uninsured motorist (UM) insurer was timely served in an insured’s renewal action, and summary judgment for the insurer was error because service on a UM carrier under O.C.G.A. § 33-7-11 was valid and timely within any time allowed for valid service on the tortfeasor in the case, even if such valid service was after the expiration of the statute of limitation; nothing in the 1998 amendment to § 337-11 reflected a legislative decision to overrule any of the judicial decisions holding such service valid. Although the insured had voluntarily dismissed the initial suit, the insured timely renewed the action pursuant to O.C.G.A. § 9-2-61, and served the insurer with the renewed complaint. Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437, 678 S.E.2d 877, 2009 Ga. LEXIS 287 (2009). Refiled suit barred by statute of repose. - Executrix’s medical malpractice claim against a doctor was properly dismissed as, even if the action was refiled in accordance with O.C.G.A. § 9-2-61, the suit was barred by the statute of repose under O.C.G.A. § 9-3-71(b) as the suit was filed seven years after the patient’s death. Adams v. Griffis, 275 Ga. App. 364, 620 S.E.2d 575, 2005 Ga. App. LEXIS 873 (2005). Failure to file a required affidavit contemporaneously with the complaint did not render the complaint void ab initio, but merely made the action voidable insofar as the application of O.C.G.A. § 9-2-61 was concerned. Patterson v. Douglas Women’s Center, 258 Ga. 803, 374 S.E.2d 737, 1989 Ga. LEXIS 88 (1989). Intention of legislature was that this section should apply only to state courts, for in the Act of 1847 it uses the words “courts of this State,” meaning, in the court’s opinion, courts created by the Constitution and laws of this state. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284, 1977 Ga. App. LEXIS 2592 (1977). Claims dismissed under section. - Because the children of a decedent refiled

their complaint against the operators of a nursing home more than five years after the death of their mother or the alleged wrongful acts occurred, their claims were subject to dismissal under the statute of repose of O.C.G.A. § 9-3-71(b). Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 666 S.E.2d 401, 2008 Ga. App. LEXIS 784 (2008). Trial court did not err in dismissing a passenger’s O.C.G.A. § 9-2-61 renewal action entirely as being void ab initio and in denying the passenger’s request to substitute parties under O.C.G.A. § 9-11-25 because the passenger’s renewed complaint was filed after the driver’s death, and the passenger never attempted to substitute a new defendant before a hearing on a motion to dismiss. Cox v. Progressive Bayside Ins. Co., 316 Ga. App. 50, 728 S.E.2d 726, 2012 Ga. App. LEXIS 480 (2012). Renewal can only be exercised once. - In a wrongful death action, a trial court properly granted summary judgment to two defending prison workers because the estate administrator for the deceased inmate had already exercised the right to one renewal of the action outside the statute of limitation authorized by O.C.G.A. § 9-2-61(a) and could not invoke the statute again to save the time-barred third complaint after a federal court declined to exercise pendent jurisdiction over the state claims. Stokes v. Hill, 324 Ga. App. 256, 749 S.E.2d 819, 2013 Ga. App. LEXIS 824 (2013). Procedural Consideration Renewal allowable to meet service requirements of O.C.G.A. § 50-21-35. - Trial court erred in dismissing an injured party’s personal injury action against a state agency because, under the current precedent, failure to meet the notice requirements of O.C.G.A. § 50-21-35 did not automatically require a dismissal, and the injured party’s act of refiling the complaint under the renewal statute, O.C.G.A. § 9-2-61, was allowable under the circumstances. Shiver v. DOT, 277 Ga. App. 616, 627 S.E.2d 204, 2006 Ga. App. LEXIS 172 (2006). No reference to venue. - Venue of renewed action may be laid in any court having jurisdiction. Cox v. Strickland, 120

Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904). When venue is improperly laid in the first action, this section does not require that the action shall be renewed in the same court or county, for this section is but a codification of the Act of 1847 which allowed plaintiff to renew in any court having jurisdiction thereof in this state. Chance v. Planters Rural Tel. Coop., 219 Ga. 1, 131 S.E.2d 541, 1963 Ga. LEXIS 350 (1963). This section, in granting the right to renew within six months, forms an exception to the statute of limitations, and has no reference to the subject of venue; new action may be brought in any court having jurisdiction thereof in this state. Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560, 1978 Ga. App. LEXIS 2962 (1978). Jurisdiction of parties and subject matter required. - In order for this section to prevent operation of the statute of limitations, the first action must have been one in which the court had jurisdiction of the parties and subject matter. Hudnall v. Kelly, 388 F. Supp. 1352, 1975 U.S. Dist. LEXIS 13976 (N.D. Ga. 1975). Trial court properly dismissed a plaintiff’s renewal action regarding a personal injury suit because the plaintiff’s original action was void in that the trial court had orally dismissed that suit for insufficiency of service and a lack of personal jurisdiction, and the renewal statute only applied to actions that were valid prior to dismissal. Stephens v. Shields, 271 Ga. App. 141, 608 S.E.2d 736, 2004 Ga. App. LEXIS 1641 (2004). Service in first action essential. - In order to make the second action stand upon the same footing as to limitation as the original case, it is essential that service was had in the first action; mere filing, without service, will not be sufficient. McClendon & Co. v. Hermando Phosphate Co., 100 Ga. 219, 28 S.E. 152, 1897 Ga. LEXIS 28 (1897); Haas v. Blake, 148 Ga. App. 366, 251 S.E.2d 386, 1978 Ga. App. LEXIS 3157 (1978). Mere filing of petition will not of itself operate to toll the statute of limitations, for service is also a vital ingredient. Chance v. Planters Rural Tel. Coop., 219

Ga. 1, 131 S.E.2d 541, 1963 Ga. LEXIS 350 (1963). When action is filed but there is no service, the first action is void and will not serve to toll the statute of limitations. Douglas v. Kelley, 116 Ga. App. 670, 158 S.E.2d 441, 1967 Ga. App. LEXIS 923 (1967). In order for the filing of the complaint to qualify under O.C.G.A. § 9-2-61 as a valid renewal of a previously dismissed action, the proceedings which plaintiff dismissed must have constituted a “valid action.” The mere filing of plaintiff’s first complaint, without service on defendant, does not, however, constitute a “valid” action. Acree v. Knab, 180 Ga. App. 174, 348 S.E.2d 716, 1986 Ga. App. LEXIS 2121 (1986). Because the defendant was never served with the original DeKalb County complaint, the renewal provision contained in O.C.G.A. § 9-2-61 was inapplicable and plaintiff’s Henry County action, filed more than two years after the incident and some eight months after the first suit, was barred by the applicable statute of limitation. Wilkins v. Butler, 187 Ga. App. 84, 369 S.E.2d 267, 1988 Ga. App. LEXIS 596 (1988). In order for a case to qualify as a renewal action, the earlier filing must have been a valid action, with proper service on the defendant. Ludi v. Van Metre, 221 Ga. App. 479, 471 S.E.2d 913. When an original action was filed prior to the running of the statute of limitation and proper service was not perfected on defendants until after the expiration thereof, O.C.G.A. § 9-2-61 remained available to the plaintiff because the plaintiff voluntarily dismissed the original action before the trial court ruled on the reasonableness of the service therein. This decision overrules Brooks v. Young, 220 Ga. App. 47, 467 S.E.2d 230 (1996), to the extent it holds that there can be no valid service of an original action outside the statute of limitation. Allen v. Kahn, 231 Ga. App. 438, 499 S.E.2d 164. Since the defendant was not served in the first suit, that suit was void and incapable of being renewed under subsection (a) of O.C.G.A. § 9-2-61; neither defendant’s appearance in the first suit by filing

Procedural Consideration (Cont’d) an answer and raising the defense of lack of service, nor the defendant’s participation in discovery prior to plaintiff’s dismissal was a waiver of the service defect. Sparrow v. Che, 232 Ga. App. 184, 501 S.E.2d 553; Parker v. Jester, 244 Ga. App. 494, 535 S.E.2d 814, 2000 Ga. App. LEXIS 731 (2000). Since proper service was never made on the corporations in the original action, the privilege of renewal did not apply with respect to them. Kidd v. First Commerce Bank, 264 Ga. App. 536, 591 S.E.2d 369, 2003 Ga. App. LEXIS 1392 (2003). Because sufficient evidence was presented that supported the trial court’s ruling that service of process in a personal injury plaintiff’s original suit was ineffectual, that suit was void, making dismissal of the personal injury plaintiff’s renewal claim proper. Cooper v. Lewis, 288 Ga. App. 750, 655 S.E.2d 344, 2007 Ga. App. LEXIS 1288 (2007). Because the plaintiff did not serve the defendant in the original automobile collision suit prior to dismissal, the plaintiff could not utilize the renewal statute to avoid the statute of limitation bar to a second suit. The trial court correctly ruled that the case could not be renewed outside the statute of limitation because the action was not made valid through service before it was dismissed. McWilliams v. Parker, 362 Ga. App. 147, 867 S.E.2d 151, 2021 Ga. App. LEXIS 577 (2021). Service waived by defendant. - This section does not apply to void actions, including actions in which the petition has been filed but not served upon the defendant, but want of service will not void the action if service has been waived by the defendant. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124, 1938 Ga. LEXIS 760 (1938). Delay in service in original action. - Inasmuch as diligence in perfecting service of process in an action properly refiled under subsection (a) of O.C.G.A. § 9-2-61 must be measured from time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action. Hobbs v. Arthur, 264 Ga. 359, 444 S.E.2d 322, 1994 Ga. LEXIS 468 (1994);

Urrea v. Flythe, 215 Ga. App. 212, 450 S.E.2d 266, 1994 Ga. App. LEXIS 1178 (1994). Court of appeals correctly reversed a trial court’s grant of summary judgment to a driver and a corporation based on a second driver’s lack of diligence in serving a complaint in the driver’s voluntarily dismissed original action because inasmuch as diligence in perfecting service of process in an action properly refiled under O.C.G.A. § 9-2-61(a) had to be measured from the time of filing the renewed suit, any delay in service in a valid first action was not available as an affirmative defense in the renewal action. The first driver and corporation essentially sought the rewriting of an unambiguous statute, but their arguments were properly directed to the General Assembly because when the General Assembly wished to put a firm deadline on filing lawsuits, the legislature knew how to enact a statute of repose instead of a statute of limitation. Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165, 2010 Ga. LEXIS 772 (2010). Service in second action essential. - Mere refiling of an action after dismissal for improper service on defendants did not operate to toll the running of the relevant statute when the plaintiffs did not exercise reasonable diligence to see that the defendant was properly served in the present action. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 96 F.R.D. 175, 1982 U.S. Dist. LEXIS 16012 (S.D. Ga. 1982), aff’d, 720 F.2d 1230, 1983 U.S. App. LEXIS 14793 (11th Cir. 1983). After the plaintiff voluntarily dismissed the action without prejudice and filed another complaint for damages, and the plaintiff did not perfect service by having the second complaint personally served on the defendant, the plaintiff failed to comply with the procedural prerequisites for renewal of the dismissed action. Atkinson v. Holt, 213 Ga. App. 427, 444 S.E.2d 838, 1994 Ga. App. LEXIS 599 (1994), cert. denied, No. S94C1437, 1994 Ga. LEXIS 999 (Ga. Sept. 22, 1994). Diligence in perfecting service of process in an action properly refiled under subsection (a) of O.C.G.A. § 9-2-61 must be measured from the time of filing the renewed suit. Heard v. Hart, 241 Ga.

App. 441, 526 S.E.2d 908, 1999 Ga. App. LEXIS 1651 (1999), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Finding was proper that plaintiff was not diligent in serving defendant who was not served until approximately three months after a renewed action was filed because plaintiff’s attorney provided the sheriff with an erroneous address, despite the fact that the attorney had the correct address. Heard v. Hart, 241 Ga. App. 441, 526 S.E.2d 908, 1999 Ga. App. LEXIS 1651 (1999), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Because the plaintiff offered no explanation for the delays in attempting to locate and serve the defendant, whether the delays show that the plaintiff was guilty of laches in failing to exercise diligence in perfecting service was a matter within the trial court’s discretion. Davis v. Bushnell, 245 Ga. App. 221, 537 S.E.2d 477, 2000 Ga. App. LEXIS 921 (2000). Effect of service beyond limitation period. - Inordinate and unexplained delay on the part of plaintiff in obtaining personal service on defendant, particularly after being placed on due notice of the deficiency in the plaintiff’s original service, constituted failure to exercise due diligence, so as to preclude the relation back of subsequent perfected service to the original filing of the complaint. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579, 1991 Ga. App. LEXIS 548 (1991). When service had been perfected, albeit belatedly, the original action was merely voidable and not void. Service thus related back to the date of filing, thereby preventing the suit from being barred by the statute of limitation. Therefore, by voluntarily dismissing plaintiff’s valid suit, plaintiff acquired the right to file a renewal action within six months pursuant to O.C.G.A. § 9-2-61. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275, 410 S.E.2d 821, 1991 Ga. App. LEXIS 1331 (1991). Plaintiff dismissed original action against defendant after the expiration of

the applicable statute of limitation, then filed a renewal action against defendant pursuant to O.C.G.A. § 9-2-61; defendant raised the defense of insufficient service in defendant’s answer to the original action and moved for dismissal of the renewal action on the basis that defendant was not properly served in the original action. The trial court correctly concluded the original action was void for lack of proper service on defendant, and correctly dismissed the renewal action because a void action could not be renewed pursuant to O.C.G.A. § 92-61. Campbell v. Coats, 254 Ga. App. 57, 561 S.E.2d 195, 2002 Ga. App. LEXIS 257 (2002), cert. denied, No. S02C0981, 2002 Ga. LEXIS 509 (Ga. June 10, 2002). Owners’ personal injury and property damages action against a manufacturer, which concerned a fire in January 30, 2000, was barred by the two- and fouryear statutes of limitations because the owners failed to timely perfect service, as required by O.C.G.A. § 9-11-4(c), until February 23, 2004, which was more than five days after the owners filed a renewed complaint under O.C.G.A. § 9-2-61(a) on October 28, 2003. Johnson v. Am. Meter Co., 412 F. Supp. 2d 1260, 2004 U.S. Dist. LEXIS 29142 (N.D. Ga. 2004). Plaintiff was allowed to reinstate an original 42 U.S.C. § 1983 complaint under Fed. R. Civ. P. 60(b) because of excusable neglect due to the fact that the renewal statute of O.C.G.A. § 9-2-61 was inapplicable to reinstate a second action barred by the limitations period of O.C.G.A. § 9-3-33, adequate grounds for relief were demonstrated, and no prejudice was shown. Highsmith v. Thomas, No. CV506-99, No. CV507-04, 2007 U.S. Dist. LEXIS 28964 (S.D. Ga. Apr. 18, 2007). Dismissal of action without prejudice granted. - In a diversity action, even though the plaintiffs failed to show good cause for their failure to serve the defendants within the 120 day service period under Fed. R. Civ. P. 4(m) and failed to diligently servethe defendants after the expiration of the statute of limitations as required under O.C.G.A. § 911-4, the action was dismissed without prejudice because of the refiling opportu-

Procedural Consideration (Cont’d) nities accorded under O.C.G.A. § 9-2-61. Lau v. Klinger, 46 F. Supp. 2d 1377, 1999 U.S. Dist. LEXIS 5955 (S.D. Ga. 1999). Affirmative defenses raised in renewal actions. - Since an action renewed pursuant to subsection (a) of O.C.G.A. § 9-2-61 is an action de novo, as a general rule a defendant is not estopped from raising a proper defense in the renewal action solely because that defense was not raised in the original action. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275, 410 S.E.2d 821, 1991 Ga. App. LEXIS 1331 (1991). Affirmative defenses raised in a renewal action were not proper defenses when the delayed service in the first action was not repeated and the defendant was served promptly in the renewal action. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275, 410 S.E.2d 821, 1991 Ga. App. LEXIS 1331 (1991). Mere sustaining of plea to jurisdiction adjudicating that the court has no jurisdiction over the defendant, without setting aside of service, does not render the action itself void for lack of service, and when the plaintiff elects to rebring the action within six months in a court having jurisdiction of both subject matter and the person, this section applies. Pryse v. Cutliffe, 57 Ga. App. 548, 195 S.E. 913, 1938 Ga. App. LEXIS 333, aff’d, 187 Ga. 51, 200 S.E. 124, 1938 Ga. LEXIS 760 (1938); Douglas v. Kelley, 116 Ga. App. 670, 158 S.E.2d 441, 1967 Ga. App. LEXIS 923 (1967); Weddington v. Kumar, 149 Ga. App. 857, 256 S.E.2d 141, 1979 Ga. App. LEXIS 2058 (1979). If, after waiver of service by defendant by filing a plea to the jurisdiction on the ground of nonresidence in the county, plaintiff dismisses the action, and within six months from dismissal institutes an action against the defendant on the same cause in another county, admitted in the plea to the jurisdiction to be defendant’s residence, this section will apply, and the latter action will not be barred by the statute of limitations. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124, 1938 Ga. LEXIS 760 (1938). If, after waiver of service by defendant by virtue of filing of a plea to the jurisdic-

tion without objecting to service or want of service, plaintiff dismisses the plaintiff’s action in one county and within six months from dismissal institutes an action against defendant on the same cause of action in the proper county, this section will apply and the latter action will not be barred by the statute of limitations. Chance v. Planters Rural Tel. Coop., 219 Ga. 1, 131 S.E.2d 541, 1963 Ga. LEXIS 350 (1963). Lack of personal jurisdiction. - This section applies when an action brought within the time prescribed by the statute of limitations, in a court having jurisdiction of the subject matter, is dismissed solely for want of jurisdiction of the person. Phillips v. Central of Ga. Ry., 20 Ga. App. 668, 93 S.E. 309, 1917 Ga. App. LEXIS 1026 (1917), aff’d, 148 Ga. 90, 95 S.E. 994, 1918 Ga. LEXIS 201 (1918). If plaintiff begins action in court of this state having subject matter jurisdiction, and after bar of the statute has attached the action is dismissed for lack of jurisdiction of the person, such action may be renewed within six months in another court of this state having jurisdiction of the person and subject matter. United States Cas. Co. v. AMOCO, 104 Ga. App. 209, 121 S.E.2d 328, 1961 Ga. App. LEXIS 642 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560, 1978 Ga. App. LEXIS 2962 (1978). If defendant traverses service and files plea to the jurisdiction subject to traverse, the defendant may thereby establish not only that the court has no jurisdiction of the defendant’s person but that the petition, not having been properly served upon the defendant, is absolutely void, and in such case plaintiff is not entitled to rely upon the first action after its dismissal as a basis of renewal. Douglas v. Kelley, 116 Ga. App. 670, 158 S.E.2d 441, 1967 Ga. App. LEXIS 923 (1967). Identity of cause of action and of parties required. - To be renewed under this section, case must be the same as to cause of action and parties. Cox v. East Tenn. & Ga. R.R., 68 Ga. 446, 1882 Ga. LEXIS 28 (1882). To be a good “renewal” of an original action so as to suspend running of the

statute of limitations, the new petition must be substantially the same both as to the cause of action and as to essential parties. Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497, 1937 Ga. LEXIS 548 (1937). If cause of action is the same in both cases, the same party or the party’s legal representative may renew the second action against a person from whom relief was prayed in the first action. McCoy Enters. v. Vaughn, 154 Ga. App. 471, 268 S.E.2d 764, 1980 Ga. App. LEXIS 2232 (1980). Trial court’s denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 92-61, but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-1115(a) and 9-11-21; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642, 2006 Ga. App. LEXIS 289 (2006), cert. denied, No. S06C1296, 2006 Ga. LEXIS 425 (Ga. June 12, 2006). Assertion of new claim in renewal action was improper. - Plaintiff’s renewal action against the mother of a driver in a traffic accident was timebarred because it asserted a claim under the family purpose doctrine, but the original action against the mother only asserted a negligence claim against the mother and did not make a family purpose doctrine allegation; to be a good “renewal” so as to suspend the running of the statute of limitations under O.C.G.A. § 9-2-61, the new petition had to have been substantially the same both as to the cause of action and as to the essential parties. Thus, the statute of limitations was not

suspended under § 9-2-61. Safi-Rafiq v. Balasubramaniam, 298 Ga. App. 274, 679 S.E.2d 822, 2009 Ga. App. LEXIS 647 (2009), cert. denied, No. S09C1708, 2009 Ga. LEXIS 564 (Ga. Sept. 8, 2009). Appellant could not file the instant action as a renewal of the breach-of-contract counterclaim that the appellant asserted in the prior litigation because the appellant could not add claims for breach of fiduciary duty, conversion, and unjust enrichment as the claims were not substantially the same as the appellant’s counterclaim for breach of contract in the prior action. Hartman v. The PIP-Group, LLC, 349 Ga. App. 233, 825 S.E.2d 601, 2019 Ga. App. LEXIS 148 (2019), cert. denied, No. S19C0979, 2019 Ga. LEXIS 775 (Ga. Nov. 4, 2019). Payment of costs in the dismissed suit is a precondition to the filing of a second suit. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, 1983 Ga. LEXIS 659 (1983); Shaw v. Lee, 187 Ga. App. 689, 371 S.E.2d 187, 1988 Ga. App. LEXIS 810 (1988); Urrea v. Flythe, 215 Ga. App. 212, 450 S.E.2d 266, 1994 Ga. App. LEXIS 1178 (1994). (See now the 1989 amendment, which added the payment of costs provision in subsection (a)). Arrestee whose suit against a law enforcement officer under 42 U.S.C. § 1983 was barred by the statute of limitations could not rely on Georgia’s renewal statute, O.C.G.A. § 9-2-61, to avoid the statute of limitations because the arresstee failed to pay the unpaid costs of the arrestee’s timely original action as required. The cost-payment requirement applied both to voluntary and involuntary dismissals under O.C.G.A. § 9-11-41. Hancock v. Cape, 875 F.3d 1079, 2017 U.S. App. LEXIS 23182 (11th Cir. 2017). Payment of costs from federal court. - Payment of costs in a dismissed action is a jurisdictional matter which cannot be waived. Combel v. Wickey, 174 Ga. App. 758, 332 S.E.2d 18, 1985 Ga. App. LEXIS 1950 (1985). Requirement may be relaxed if the plaintiff shows a good faith effort to ascertain and pay the costs. Butler v. Bolton Rd. Partners, 222 Ga. App. 791, 476 S.E.2d 265. Appellate court found that a plaintiff can file a renewal action in a Georgia

Procedural Consideration (Cont’d) court under O.C.G.A. § 9-2-61 within six months following the dismissal of claims in a prior federal action without first paying the litigation expenses submitted by a defendant in a bill of costs to the federal district court. Prison Health Servs. v. Mitchell, 256 Ga. App. 537, 568 S.E.2d 741, 2002 Ga. App. LEXIS 830 (2002). Payment of costs of original action is condition precedent to right to renew action. McLanahan v. Keith, 140 Ga. App. 171, 230 S.E.2d 57, 1976 Ga. App. LEXIS 1385 (1976), aff’d, 239 Ga. 94, 236 S.E.2d 52, 1977 Ga. LEXIS 824 (1977); Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, 1983 Ga. LEXIS 659 (1983); Shaw v. Lee, 187 Ga. App. 689, 371 S.E.2d 187, 1988 Ga. App. LEXIS 810 (1988); (See now the 1989 amendment, which added the payment of costs provision in subsection (a)). When costs of the prior dismissed action have not been paid, statute of limitations applies to the renewal case even if it has been filed within six months of dismissal. Grier v. Wade Ford, Inc., 135 Ga. App. 821, 219 S.E.2d 43, 1975 Ga. App. LEXIS 1839 (1975). Failure to attach ante litem notice. - Plaintiff’s tort action against the Georgia Ports Authority complied with the statute of limitations and ante litem notice statute, O.C.G.A. §§ 50-21-26(a)(4) and 50-21-27(c), and the plaintiff’s second action was proper under the renewal statute, O.C.G.A. § 9-2-61, but was dismissed for failure to attach the ante litem notice timely. The plaintiff’s third action was improper because dismissal of the first action occurred outside the statute of limitations, so only one renewal was authorized. Burroughs v. Georgia Ports Authority, 339 Ga. App. 294, 793 S.E.2d 538, 2016 Ga. App. LEXIS 682 (2016), cert. denied, No. S17C0617, 2017 Ga. LEXIS 416 (Ga. May 15, 2017). Applicable procedural rules. - Renewal action is governed by those procedural rules which are in effect at the time that it is filed. Archie v. Scott, 190 Ga. App. 145, 378 S.E.2d 182, 1989 Ga. App. LEXIS 118 (1989). Substitution for “John Doe” defendant. - After the plaintiff voluntarily

dismissed an action against a defendant designated as “John Doe” and later discovered the defendant’s true name and renewed the action, designating the defendant by the defendant’s true name, the defendants were in substance identical, and the renewal action could claim the benefit of the tolling of the statute of limitation. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848. Action appealed from magistrate court. - O.C.G.A. § 9-11-41(a), the voluntary dismissal statute, could be exercised by either party in a de novo appeal filed in superior court following the entry of a judgment in themagistrate court, regardless of which party appealed. Once a landlord filed the landlord’s voluntary dismissal, the landlord was also entitled to file a renewal action pursuant to O.C.G.A. § 9-2-61(a). Jessup v. Ray, 311 Ga. App. 523, 716 S.E.2d 583, 2011 Ga. App. LEXIS 782 (2011). Timing Meaning of “whichever is later.” - Plain meaning of the phrase “whichever is later” in O.C.G.A. § 9-2-61 refers to the later date of two dates: (1) the end of the statute of limitations; or (2) six months after the date of discontinuance or dismissal; the discontinuance of a case precedes the filing of the written dismissal and the six month period begins to run on the earlier date of discontinuance. Morris v. Haren, 52 F.3d 947, 1995 U.S. App. LEXIS 11941 (11th Cir. 1995). Date from which renewal period runs. - Six-month period for refiling an action that was dismissed in federal court in the state court, absent a stay, began to run from the date the United States Court of Appeals affirmed the dismissal, not the date of the United States Supreme Court’s denial of a subsequent petition for certiorari. Owens v. Hewell, 222 Ga. App. 563, 474 S.E.2d 740. Six-month period for filing a renewal action was triggered on the date a dismissal order was filed, even though the order contained an incorrect signature date which was later corrected by the filing of an amended order. Kimball v. KGB Transport, 241 Ga. App. 511, 527 S.E.2d 233, 1999 Ga. App. LEXIS 1660

(1999), cert. denied, No. S00C0669, 2000 Ga. LEXIS 413 (Ga. May 5, 2000). Computation method. - Method of computation of time in O.C.G.A. § 1-31(d)(3) applies to the filing of renewal actions under O.C.G.A. § 9-2-61(a). Parsons v. Capital Alliance Fin., LLC, 325 Ga. App. 884, 756 S.E.2d 14, 2014 Ga. App. LEXIS 96 (2014). Written notice of dismissal required to begin six-month period. - Even though plaintiff’s counsel informed the court of plaintiff’s intent to dismiss the case, signed a voluntary dismissal that day, and served it on defense counsel by mail, no voluntary dismissal occurred until the plaintiff actually filed a written notice thereof, and the six-month renewal period did not begin until that date. Carter v. Digby, 244 Ga. App. 217, 535 S.E.2d 273, 2000 Ga. App. LEXIS 669 (2000). Renewal permitted when delay was due to computer problem. - Trial court erred in dismissing the patient’s complaint because, following a computer problem causing an 8-day delay, the complaint was stamped filed on the last day of the six-month renewal period. Choice v. Fla. Men’s Med. Clinic, 342 Ga. App. 157, 802 S.E.2d 405, 2017 Ga. App. LEXIS 323 (2017). Renewal permitted within six months. - Superior court did not err when the court concluded that the 2019 petition was a valid renewal of the property owner’s original action under O.C.G.A. § 9-2-61 because the superior court dismissed the first action without prejudice for lack of jurisdiction based on the property owner combining multiple appeals into one certiorari petition and, therefore, the dismissal of the first action did not operate as an adjudication on the merits and the property owner was able to renew the owner’s action within six months of the dismissal without prejudice, which the owner did. Forsyth County v. Mommies Props. LLC Four Cases, 359 Ga. App. 175, 855 S.E.2d 126, 2021 Ga. App. LEXIS 145 (2021). Time ran from court order terminating the action. - Plaintiff’s renewal action brought under the renewal statute, O.C.G.A. § 9-2-61(a), was timely because

the six-month period was calculated not from the time the plaintiff dismissed some of the defendants, but from the date of the trial court’s order granting the voluntary dismissal without prejudice as to all but one of the defendants. Had the plaintiff dismissed all the defendants, no court order would have been required, and the voluntary dismissal would have been effective. Gresham v. Harris, 329 Ga. App. 465, 765 S.E.2d 400, 2014 Ga. App. LEXIS 711 (2014), cert. denied, No. S15C0475, 2015 Ga. LEXIS 74 (Ga. Jan. 20, 2015). Applicable statutes of limitation are not tolled during the pendency of a lawsuit. - Effect of O.C.G.A. § 9-2-61 is merely to treat a properly renewed action (i.e., an action renewed within six months of dismissal of the previous action) as standing upon the same footing, as to limitation, with the original case. Stevens v. FAA’s Florist, Inc., 169 Ga. App. 189, 311 S.E.2d 856, 1983 Ga. App. LEXIS 3020 (1983). Timely written notice. - When a negligence action against a county employee, in which the county had provided a defense, was dismissed, a renewal suit filed under O.C.G.A. § 9-2-61 was an action de novo and timely written notice was required to obligate the county to defend. Cleveland v. Skandalakis, 268 Ga. 133, 485 S.E.2d 777. Failure to serve complaint before renewal period expired. - Trial court did not err in granting summary judgment to the insurer because the insured served the insured’s complaint on the insurer a month after the six-month renewal period expired and the insured had made no prior attempts to perfect service. King v. Peeples, 328 Ga. App. 814, 762 S.E.2d 817, 2014 Ga. App. LEXIS 579 (2014). Mere passage of time as grounds for dismissal. - Complaint should not have been dismissed when, although service was not perfected until 13 days after the complaint was filed, which was 11 days after the expiration of the six-month grace period of the renewal statute, the trial judge made no finding of laches, lack of diligence or any factor other than mere lapse of time, nor would the facts have supported such a finding. Bennett v. Matt

Timing (Cont’d) Gay Chevrolet Oldsmobile, Inc., 200 Ga. App. 348, 408 S.E.2d 111, 1991 Ga. App. LEXIS 1019 (1991). Statute of limitations not tolled for defendant’s new counterclaims. - Defendant who previously merely interposed defenses to the original action may not for the first time seek to recover damages by counterclaim, third-party complaint, or cross-claim when the statute of limitations for the recovery of such damages has run. Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479, 1976 Ga. App. LEXIS 1977 (1976). Appeal was timely and proper. - When an action is nonsuited (involuntarily dismissed) and plaintiff files a timely appeal from that judgment which is affirmed by the appellate court, plaintiff may, within six months of the date of affirmance, recommence action upon complying with the conditions imposed by this section; but when the plaintiff’s appeal is dismissed by the appellate court for failure to meet statutory requirements, a new action must be recommenced within six months of the judgment of nonsuit (dismissal). Carmack v. Oglethorpe Co., 117 Ga. App. 664, 161 S.E.2d 357, 1968 Ga. App. LEXIS 1191 (1968). Trial court erred by denying a debtor’s refiling of an appeal as untimely because the six-month period for filing the debtor’s renewal action under O.C.G.A. § 9-261(a) began the day after the debtor dismissed the original superior court action, and ran until December 6, 2012, based on the method of calculation under O.C.G.A. § 1-3-1(d)(3), thus, the refiling of the action on December 6 was timely. Parsons v. Capital Alliance Fin., LLC, 325 Ga. App. 884, 756 S.E.2d 14, 2014 Ga. App. LEXIS 96 (2014). Action was time barred. - Trial court did not err by finding that a parent’s wrongful death claim, pursuant to O.C.G.A. § 9-2-61(a) and (c), was timebarred because the parent was not a party to the original action filed in federal court except as the representative of the son’s estate; in the state court case, the estate lacked standing to bring the wrongful death claim, and the parent’s claims in the

parent’s individual capacity were barred by the applicable two-year statute of limitations because the parent could not benefit from the renewal statute since the parent, individually, was not a party to the first action. Gish v. Thomas, 302 Ga. App. 854, 691 S.E.2d 900, 2010 Ga. App. LEXIS 254 (2010). Resident’s third automobile personal injury lawsuit against a former resident was properly dismissed because service of the resident’s second lawsuit was not perfected in accordance with the Georgia Long-Arm Statute, O.C.G.A. § 9-10-91, and the period of limitations in O.C.G.A. § 9-3-33 ran before the third lawsuit (allegedly as a renewal of the second lawsuit under O.C.G.A. § 9-2-61) was filed. Coles v. Reese, 316 Ga. App. 545, 730 S.E.2d 33, 2012 Ga. App. LEXIS 605 (2012). Trial court properly dismissed the plaintiff’s claims on the ground that the claims were time-barred because the claims were untimely, whether viewed under Georgia’s renewal statute O.C.G.A. § 9-2-61(a), or under the tolling provision of 28 U.S.C. § 1367(d), because under Georgia’s renewal statute, the plaintiff was required to file the renewal action within six months of the federal appellate court’s affirmance of the district court’s dismissal of the first lawsuit. Gottschalk v. Woods, 329 Ga. App. 730, 766 S.E.2d 130, 2014 Ga. App. LEXIS 778 (2014). Dismissal of the complaint based on the contractual time-limitation provision in the insurance policy was proper because there was no evidence that the insurer waived enforcement of that provision, or that there was a jury question, as once mediation ended and the parties failed to reach a settlement, the insured had approximately seven months in which to file suit before the two-year limitation period expired, but the insured failed to do so. Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282, 2020 Ga. App. LEXIS 364 (2020), cert. denied, No. S20C1452, 2021 Ga. LEXIS 372 (Ga. May 17, 2021). Application Section not applicable to action brought after running of original statute of limitation. - After the plaintiff filed and dismissed a suit for wrongful

expulsion, a suit based on the same claim brought three years later was barred by the one-year statute of limitation in O.C.G.A. § 14-3-621, and the renewal provision of O.C.G.A. § 9-2-61 did not apply to allow refiling of the suit. Atlanta Country Club, Inc. v. Smith, 217 Ga. App. 515, 458 S.E.2d 136, 1995 Ga. App. LEXIS 498 (1995), cert. denied, No. S95C1493, 1995 Ga. LEXIS 1052 (Ga. Sept. 25, 1995). Trial court properly dismissed the second of two personal injury lawsuits, with prejudice, as such did not act as a renewal action, given evidence that the first suit, though timely filed, was void because service was never perfected; moreover, dismissal was properly entered with prejudice as res judicata barred the litigant from filing a subsequent lawsuit on a claim that was already held as timebarred. Towe v. Connors, 284 Ga. App. 320, 644 S.E.2d 176, 2007 Ga. App. LEXIS 294 (2007). In an employment discrimination case dismissed without prejudice because the former employee had not effected service within 120 days, a district court’s dismissal of the Discrimination in Employment Act of 1967 (ADEA), Title VII of the Civil Rights Act of 1964 (Title VII), and American with Disabilities Act (ADA) claims in the former employee’s second complaint was affirmed. The former employee’s argument that the second complaint was timely renewed pursuant to O.C.G.A. § 9-2-61 was without merit since the ADEA, Title VII, and the ADA each a had 90-day statutory limitation period in which to file suit, and the former employee had not satisfied those statutory limitation periods. Miller v. Georgia, 223 Fed. Appx. 842, 2007 U.S. App. LEXIS 6218 (11th Cir. 2007). Insurance policy limitations period not bar to renewal action. - In a suit by a shopping center owner/mortgagee against an insurer and banks seeking damages after the insurer paid the mortgagor insurance proceeds for damages to the premises, because the owner’s original action was timely filed within the twoyear limitation period in the insurance policy, and the renewal case was filed within six months after the first case was dismissed, the insurance policy time limit

did not provide a time-bar to any claims properly brought in the renewal action. Auto-Owners Ins. Co. v. Hale Haven Props., 346 Ga. App. 39, 815 S.E.2d 574, 2018 Ga. App. LEXIS 330 (2018), cert. denied, No. S18C1418, 2019 Ga. LEXIS 88 (Ga. Jan. 22, 2019), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75 (Ga. Jan. 22, 2019). Statute of limitations for serving an uninsured motorist carrier is the same as that for serving the defendant tortfeasor, even though the defendant does not qualify as uninsured until after the applicable limitations period has run; thus, an insured’s service on an uninsured motorist carrier of an original action was not necessary in order to allow for service in a properly filed renewal action after the running of the limitations period. Stout v. Cincinnati Ins. Co., 269 Ga. 611, 502 S.E.2d 226. Section inapplicable under federal Employer’s Liability Act. - See Parham v. Norfolk S.R.R., 206 Ga. App. 772, 426 S.E.2d 597, 1992 Ga. App. LEXIS 1804 (1992). Individuals with Disabilities Education Act. - Tolling provision of O.C.G.A. § 9-2-61 does not apply to an appeal of an educational agency’s final administrative decision under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Cory D., by & Through Diane D. v. Burke County Sch. Dist., 285 F.3d 1294, 2002 U.S. App. LEXIS 4300 (11th Cir. 2002). Failure to exercise due diligence. - As the evidence presented failed to support a finding that plaintiff acted with due diligence in serving the defendant with a renewed damages complaint filed pursuant to O.C.G.A. § 9-2-61(a), or that the defendant tried to evade service, and although problems with service existed, the plaintiff presented few facts regarding the efforts made to complete service, the action was properly dismissed on service of process grounds. Fusco v. Tomlin, 285 Ga. App. 819, 648 S.E.2d 137, 2007 Ga. App. LEXIS 656 (2007). Consolidated personal injury renewal actions filed by a parent and child were properly resolved against them based on their failure to use diligence in serving a

Application (Cont’d) driver as no efforts were made to locate the driver even after the driver filed lack of service defenses. At that point the greatest diligence in serving the driver was required because the statute of limitations had run. Dickson v. Amick, 291 Ga. App. 557, 662 S.E.2d 333, 2008 Ga. App. LEXIS 571 (2008), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). Filing in new county in railroad accident case. - Since action was not barred by the statute of limitations where it was originally venued in a county in which the railroad accident in question occurred, and subsequently was voluntarily dismissed by the plaintiff over three years later, with the plaintiff refiling the suit within three months in the county in which the defendant railroad company’s registered agent was located. Southern Ry. v. Lawson, 174 Ga. App. 101, 329 S.E.2d 288, 1985 Ga. App. LEXIS 1757 (1985). Renewal not permitted. - Because the customer’s second voluntary dismissal constituted an adjudication on the merits under O.C.G.A. § 9-11-41(a)(3), the customer was barred by the res judicata effect of that provision from exercising the privilege of renewing the complaint, and the trial court erred in ruling that the third complaint was a valid renewal action. Cracker Barrel Old Country Store, Inc. v. Robinson, 341 Ga. App. 285, 800 S.E.2d 372, 2017 Ga. App. LEXIS 183 (2017). Trial court did not err by dismissing the plaintiff’s personal injury lawsuit on statute-of-limitation grounds because the first lawsuit did not name the same defendant and the two lawsuits named entirely different instrumentalities of the state; thus, the instant lawsuit was not a valid renewal action. Aaron v. Jekyll Island-State Park Authority, 348 Ga. App. 332, 822 S.E.2d 829, 2019 Ga. App. LEXIS 1 (2019). Personal injury claim against a driver that was filed as a renewal action under O.C.G.A. § 9-2-61(a) was subject to summary judgment based on the statute of limitations, O.C.G.A. § 9-3-33; because

the plaintiffs did not perfect service on the driver in the prior suit, and the statute had run, the plaintiffs could not renew the suit. The statute was not tolled under O.C.G.A. § 9-3-99 because the time for prosecuting the driver for following too closely had expired, and there had been no prosecution. Jenkins v. Keown, 351 Ga. App. 428, 830 S.E.2d 498, 2019 Ga. App. LEXIS 407 (2019). Because the plaintiffs never served the defendants in their original personal injury actions, the trial court correctly ruled that the cases could not be renewed outside the statute of limitation because the actions were not made valid through service before they were dismissed and the trial court properly dismissed the plaintiffs’ renewal actions. Alston v. Owners Ins. Co., 361 Ga. App. 146, 863 S.E.2d 397, 2021 Ga. App. LEXIS 446 (2021). Renewal action not against same defendants. - Second action alleging negligence and medical malpractice arising from care while the plaintiff was incarcerated was not a valid renewal because the plaintiff failed to assert the state law tort claims against the same defendants as in the first action in federal court and the plaintiff failed to perfect service of process against the state agencies in the first action as required by the Georgia Tort Claims Act, O.C.G.A. § 5021-20 et seq. Green v. Ga. Dep’t of Corr., 365 Ga. App. 592, 879 S.E.2d 679, 2022 Ga. App. LEXIS 474 (2022). Renewal proper over personal service issue. - Trial court properly denied the city’s motion to dismiss the landowner’s renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135, 789 S.E.2d 386, 2016 Ga. App. LEXIS 441 (2016). Renewal action properly dismissed. - While plaintiff spouse of deceased patient was allowed to recommence a medical malpractice action under O.C.G.A. § 9-2-61 since it was filed within six

months of dismissal of plaintiff’s earlier timely filed suit, the applicable statutes of limitation had clearly run when the renewal action was filed, and, therefore, the extension provided by O.C.G.A. § 9-119.1, which applied only when the complaint was filed within 10 days of the expiration of the limitations period, was not available; a trial court properly found that the spouse could not invoke the 45day extension of O.C.G.A. § 9-11-9.1 and properly dismissed the spouse’s renewal action on the basis of a failure to file an expert affidavit. Fisher v. Coffee Reg’l Med. Ctr., Inc., 268 Ga. App. 657, 602 S.E.2d 135, 2004 Ga. App. LEXIS 781 (2004), cert. denied, No. S04C2044, 2004 Ga. LEXIS 977 (Ga. Oct. 25, 2004). In a case in which a former employee’s second complaint was not filed within the 90-day limitations period set forth in 29 U.S.C. § 626(e) and 42 U.S.C. § 2000e5(f)(1) after the employee received a rightto-sue notice from the Equal Employment Opportunity Commission, dismissal of the former employee’s second complaint alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., was affirmed because Georgia’s renewal statute, O.C.G.A. § 9-2-61(a), was inapplicable. Roberts v. Georgia, 228 Fed. Appx. 851, 2007 U.S. App. LEXIS 8005 (11th Cir. 2007). In an employment discrimination case in which a former employee’s initial complaint was dismissed without prejudice because the former employee had not effected service within 120 days, a district court’s dismissal of the former employee’s 42 U.S.C. §§ 1983 and 1985 claims in a second complaint was affirmed because the claims were not timely under O.C.G.A. § 9-3-33, the Georgia statute borrowed for 42 U.S.C. §§ 1983 and 1985 claims. Since the former employee’s initial complaint had been dismissed by court order granting defendants’ motions, the former employee’s initial suit was void and incapable of renewal under O.C.G.A. § 9-2-61. Miller v. Georgia, 223 Fed. Appx. 842, 2007 U.S. App. LEXIS 6218 (11th Cir. 2007). Passenger’s personal injury action against a driver renewed pursuant to

O.C.G.A. § 9-2-61(a) was dismissed for failure to perfect service of process against the driver due to lack of diligence. Although the passenger attempted to serve the driver for several months, the passenger then allowed 72 days to elapse before making another attempt. The court rejected the passenger’s contention that O.C.G.A. § 33-7-11(e), providing for personal service after service of publication while allowing litigation against an uninsured motorist carrier to proceed, allowed for an additional 12 months after service by publication. Williams v. Patterson, 306 Ga. App. 624, 703 S.E.2d 74, 2010 Ga. App. LEXIS 999 (2010). Motion to dismiss must be filed with answer or renewal action not barred. - Trial court did not err in denying the appellants’ motion to dismiss because in order to bar the appellees from filing a renewal action, O.C.G.A. § 9-119.1(c) required the appellants to file a motion to dismiss at the same time the appellants filed the appellants’ answer to the original complaint and only raising the matter as a defense in the answer was insufficient to preclude the appellees from renewing the appellees action pursuant to O.C.G.A. § 9-2-61. Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23, 793 S.E.2d 98, 2016 Ga. App. LEXIS 574 (2016). Application for entry of judgment on arbitration award. - Second application for entry of judgment on an arbitration award was not time-barred, even though not filed within the limitations period, because it was entitled to renewal under O.C.G.A. § 9-2-61. Hardin Constr. Group v. Fuller Enter., Inc., 233 Ga. App. 717, 505 S.E.2d 755. Failure to timely renew challenge to arbitration award barred subsequent suit. - Final arbitration award, which did not address the owners’ breach of contract and fraud claims against a builder, barred a subsequent suit as the owners failed to timely renew their motion to vacate the award under O.C.G.A. § 92-61(a) after it was dismissed from a foreclosure action and the breach of contract and fraud claims had been submitted for arbitration. Witherington v. Adkins, 271 Ga. App. 837, 610 S.E.2d 561, 2005 Ga.

Application (Cont’d) App. LEXIS 98 (2005), cert. denied, No. S05C1105, 2005 Ga. LEXIS 488 (Ga. June 30, 2005). Arbitration not proceeding that could be renewed. - Trial court should have dismissed an employee’s tort claims against a supervisor because an arbitration between them and their employer was not a proceeding that could be renewed under O.C.G.A. § 9-2-61(a), and the claims were untimely under O.C.G.A. § 9-3-33 since the claims were not filed within six months of the dismissal or discontinuation of the employee’s earlier federal action. Green v. Flanagan, 317 Ga. App. 152, 730 S.E.2d 161, 2012 Ga. App. LEXIS 634 (2012), cert. denied, No. S12C1993, 2013 Ga. LEXIS 282 (Ga. Mar. 18, 2013). Right to arbitrate could be asserted in renewal action. - Renewal suit filed pursuant to O.C.G.A. § 9-2-61(a) was a de novo action and, therefore, the defendant’s conduct in actively litigating and engaging in discovery for over a year in the original action had no bearing on the question of whether the defendant had waived the right to arbitration in the recommenced action. SunTrust Bank v. Lilliston, 302 Ga. 840, 809 S.E.2d 819, 2018 Ga. LEXIS 50 (2018). Third complaint barred when prior actions voluntarily dismissed. - Third complaint for damages arising out of an automobile collision was barred when both prior actions were voluntarily dismissed after the natural expiration of the applicable limitations period. Worley v. Pierce, 211 Ga. App. 863, 440 S.E.2d 749, 1994 Ga. App. LEXIS 96 (1994). Two voluntary dismissals barred third action despite additional plaintiffs. - Trial court correctly dismissed a shipyard owner’s third civil action arising from the same set of facts under the two-dismissal rule of O.C.G.A. § 9-1141(a)(1) and (a)(3) and the res judicata rule of O.C.G.A. § 9-12-40 because, although the first and second actions were not based upon the same claims, each of the three actions was based on the apparently complex initial financing for, and subsequent failure of, the shipyard.

Global Ship Sys., LLC v. RiverHawk Group, LLC, 334 Ga. App. 860, 780 S.E.2d 697, 2015 Ga. App. LEXIS 735 (2015), cert. denied, No. S16C0508, 2016 Ga. LEXIS 231 (Ga. Mar. 7, 2016). Third complaint was first renewal action. - Vehicle passenger’s third complaint, filed after the passenger had voluntarily dismissed the passenger’s first two complaints, was the passenger’s first renewal action and was authorized under O.C.G.A. § 9-2-61(a). The second complaint, which was filed while the first complaint was pending and during the limitations period, was not a renewal of a dismissed action, but a duplicate action. Shy v. Faniel, 292 Ga. App. 253, 663 S.E.2d 841, 2008 Ga. App. LEXIS 734 (2008). Trial court erred when the court granted a nonresident’s motion to dismiss a driver’s third complaint because the dismissal of the driver’s second federal complaint was involuntary under O.C.G.A. § 9-11-41(a)(2), rather than voluntary under § 9-11-41(a)(1), and could not operate as an adjudication on the merits under § 9-11-41(a)(3); even though the driver requested the dismissal of the federal action, the dismissal itself was by an order of the federal court for a failure of the court’s own jurisdiction. Crawford v. Kingston, 316 Ga. App. 313, 728 S.E.2d 904, 2012 Ga. App. LEXIS 545 (2012). Trial court erred when the court granted a nonresident’s motion to dismiss a driver’s third complaint because the complaint was not barred by O.C.G.A. § 9-2-61 since the driver never served the nonresident with the second federal complaint, and thus, it was void and could not amount to a renewal of the first complaint; the third complaint was intended as a renewal of the first complaint, which was voluntarily dismissed after the expiration of the applicable period of limitation, and the federal dismissal was not only involuntary but also dismissed without prejudice for lack of subject matter jurisdiction. Crawford v. Kingston, 316 Ga. App. 313, 728 S.E.2d 904, 2012 Ga. App. LEXIS 545 (2012). Application of section to all dismissals not on merits. - Law contained in this section must be construed in con-

formity with specific legislative enactments from which it was taken; and when thus interpreted it applies to involuntary as well as voluntary dismissals, when the merits are not adjudicated. Clark v. Newsome, 50 Ga. App. 591, 178 S.E. 386, 179 S.E. 143, 1935 Ga. App. LEXIS 228 (1935). Fact that one is involuntarily dismissed rather than voluntarily dismissing one’s action is of no consequence so long as grounds for dismissal do not go to the merits of the case. Chance v. Planters Rural Tel. Coop., 219 Ga. 1, 131 S.E.2d 541, 1963 Ga. LEXIS 350 (1963). This section applies to involuntary as well as voluntary dismissals, so long as the grounds for dismissal do not adjudicate the merits. Bowman v. Ware, 133 Ga. App. 799, 213 S.E.2d 58, 1975 Ga. App. LEXIS 2290 (1975); Moore v. Tootle, 134 Ga. App. 232, 214 S.E.2d 184, 1975 Ga. App. LEXIS 1971 (1975); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495, 1980 Ga. App. LEXIS 2040 (1980); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69, 1981 Ga. App. LEXIS 2542 (1981). O.C.G.A. § 9-2-61 applies to involuntary as well as voluntary dismissals, when the merits are not adjudicated. Swartzel v. Garner, 193 Ga. App. 267, 387 S.E.2d 359, 1989 Ga. App. LEXIS 1376 (1989). Section inapplicable when original appeal of adverse judgment voluntarily withdrawn. - Because a lender’s O.C.G.A. § 9-11-41(a)(1)(A) notice to withdraw an appeal after sustaining an adverse judgment on the merits did not toll the time in which the lender was required to file a transcript on appeal, the renewal statute, O.C.G.A. § 9-2-61, did not apply; thus, the appeal was properly dismissed pursuant to O.C.G.A. § 5-648(c). Schreck v. Standridge, 273 Ga. App. 58, 614 S.E.2d 185, 2005 Ga. App. LEXIS 408 (2005). When less than all of plaintiff’s claims are added or dropped, the additions and deletions are not dismissals and renewals governed by O.C.G.A. § 911-41(a) and subsection (a) of O.C.G.A. § 9-2-61, but simply amendments governed by the liberal amendment rules of O.C.G.A. § 9-11-15(a) and (c). Young v.

Rider, 208 Ga. App. 147, 430 S.E.2d 117, 1993 Ga. App. LEXIS 406 (1993). Void actions cannot be renewed. - If the first action is void, it will not serve to extend the period within which to bring action for six months if the statute of limitations otherwise runs in the meantime. Douglas v. Kelley, 116 Ga. App. 670, 158 S.E.2d 441, 1967 Ga. App. LEXIS 923 (1967). Void action will not authorize renewal action by plaintiff under this section. Birmingham Fire Ins. Co. v. Commercial Transp., Inc., 224 Ga. 203, 160 S.E.2d 898, 1968 Ga. LEXIS 713 (1968). This statute only applies to voidable suits and not to those wholly void; a void judgment is an absolute nullity and does not prevent running of the statute of limitations. Baldwin v. Happy Herman’s, Inc., 122 Ga. App. 520, 177 S.E.2d 814, 1970 Ga. App. LEXIS 928 (1970). This renewal statute does not apply to void actions. Murray v. Taylor, 131 Ga. App. 697, 206 S.E.2d 643, 1974 Ga. App. LEXIS 1524 (1974). Since a federal court did not have jurisdiction of the subject matter, the whole proceeding was void, and it follows that O.C.G.A. § 9-2-61 did not apply, with the result that plaintiff’s contractual claim was barred by the one-year limitation provision in the insurance policy. Collins v. West Am. Ins. Co., 186 Ga. App. 851, 368 S.E.2d 772, 1988 Ga. App. LEXIS 484 (1988), superseded by statute as stated in Warehouseboy Trading, Inc. v. Gew Fitness, LLC, 316 Ga. App. 242, 729 S.E.2d 449, 2012 Ga. App. LEXIS 528 (2012). Since the plaintiffs never perfected service in the original suit, such suit was void and incapable of renewal. Garcia v. Virden, 236 Ga. App. 539, 512 S.E.2d 664. In an attempted renewal action, 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. Clark v. Dennis, 240 Ga. App. 512, 522 S.E.2d 737. Renewal statute did not apply because a prior federal action was void, rather than voidable, since: (1) the action was not commenced within the applicable statute of limitation as service was not timely

Application (Cont’d) perfected; and (2) the action was not dismissed voluntarily at the plaintiff’s behest. Tate v. Coastal Utils., Inc., 247 Ga. App. 738, 545 S.E.2d 124, 2001 Ga. App. LEXIS 101 (2001), cert. denied, No. S01C0801, 2001 Ga. LEXIS 549 (Ga. June 25, 2001), cert. denied, No. S01C0800, 2001 Ga. LEXIS 550 (Ga. June 25, 2001). When the trial court’s dismissal in the original action was based upon the court’s finding that the plaintiff had not acted diligently in perfecting service on the defendant, that determination rendered the original action void; accordingly, the renewal statute did not apply and the trial court properly dismissed the plaintiff’s second complaint. King v. Wal-Mart Stores, Inc., 250 Ga. App. 103, 550 S.E.2d 673, 2001 Ga. App. LEXIS 690 (2001), cert. denied, No. S01C1516, 2001 Ga. LEXIS 951 (Ga. Nov. 30, 2001). Georgia’s tolling provision for “renewal actions” under O.C.G.A. § 9-2-61(a) did not apply since the first 42 U.S.C. § 1983 action was void because service was never perfected on defendants. Wilson v. Hamilton, 135 Fed. Appx. 213, 2005 U.S. App. LEXIS 8530 (11th Cir. 2005). Since service was never perfected in the plaintiff’s original false imprisonment and false arrest suit, that suit was void, and thus the renewal provisions of O.C.G.A. § 9-2-61(a) did not protect the second suit from the bar of the statute of limitation since the second suit was not a renewal suit. McClendon v. Kroger Co., 279 Ga. App. 417, 631 S.E.2d 461, 2006 Ga. App. LEXIS 595 (2006). In a personal injury suit arising from the slip and fall by the injured party, because the trial court dismissed the injured party’s first action as void for failure to perfect service, the second action could not amount to a renewal action under O.C.G.A. § 9-2-61(a); further, given that the second complaint disclosed on its face that the action was time-barred, it was correctly dismissed pursuant to O.C.G.A. § 9-3-33. Baxley v. Baldwin, 287 Ga. App. 245, 651 S.E.2d 172, 2007 Ga. App. LEXIS 923 (2007). In a case in which a former employee’s first complaint was authorized to be dis-

missed pursuant to Fed. R. Civ. P. 4(m), dismissal of the former employee’s second complaint alleging violations of, inter alia, 42 U.S.C. §§ 1983 and 1985 was affirmed because Georgia’s renewal statute was inapplicable. The first complaint was void for purposes of O.C.G.A. § 9-2-61(a). Roberts v. Georgia, 228 Fed. Appx. 851, 2007 U.S. App. LEXIS 8005 (11th Cir. 2007). Because dismissal of a medical malpractice suit for failure to comply with the expert affidavit requirements rendered the suit void and incapable of being renewed under O.C.G.A. § 9-2-61, and the two-year limitation period in O.C.G.A. § 9-3-71(a) had expired, the suit was properly dismissed. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575, 2015 Ga. App. LEXIS 69 (2015). Third complaint not an attempt at renewing void action. - In filing a third complaint after voluntarily dismissing two previous complaints, a vehicle passenger was not trying to renew a void action. The third complaint explicitly stated that the complaint was intended as a renewal of the first suit, in which service had been perfected, and not of the second suit, in which service had not been perfected. Shy v. Faniel, 292 Ga. App. 253, 663 S.E.2d 841, 2008 Ga. App. LEXIS 734 (2008). Since the complaint was not served on defendant prior to dismissal, the first action was not valid and, therefore, the renewal provision of O.C.G.A. § 92-61 was not available to allow the plaintiff to avoid the statute of limitations bar to the plaintiff’s second suit. Hudson v. Mehaffey, 239 Ga. App. 705, 521 S.E.2d 838. Because an insured who brought a personal injury suit against an alleged tortfeasor had never personally served the alleged tortfeasor when the original action was filed, the action was not valid prior to dismissal and thus was not subject to renewal under O.C.G.A. § 9-2-61. Accordingly, the present action was time-barred under O.C.G.A. § 9-3-33. Williams v. Hunter, 291 Ga. App. 731, 662 S.E.2d 810, 2008 Ga. App. LEXIS 625 (2008). O.C.G.A. § 9-2-61 does not apply if the original suit was void. Fine v. Hig-

gins Foundry & Supply Co., 201 Ga. App. 275, 410 S.E.2d 821, 1991 Ga. App. LEXIS 1331 (1991). Section applies only when action dismissed was valid. Southern Flour & Grain Co. v. Simmons, 49 Ga. App. 517, 176 S.E. 121, 1934 Ga. App. LEXIS 460 (1934). No valid suit for renewal. - Because a declaratory judgment action filed by parents against underwriters was dismissed for lack of standing, a nonamendable defect, there was no valid suit to be renewed under O.C.G.A. § 9-2-61. Mikell v. Certain Underwriters at Lloyds, London, 288 Ga. App. 430, 654 S.E.2d 227, 2007 Ga. App. LEXIS 1217 (2007). Applies only when valid action pending. - This section has reference to tolling of the statute of limitations and applies only when there has been a valid pending action. Brinson v. Kramer, 72 Ga. App. 63, 33 S.E.2d 41, 1945 Ga. App. LEXIS 497 (1945); Sosebee v. Steiner, 128 Ga. App. 814, 198 S.E.2d 325, 1973 Ga. App. LEXIS 1629 (1973). O.C.G.A. § 9-2-61 applies only if the original action is a valid suit. Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69, 1981 Ga. App. LEXIS 2542 (1981); Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). O.C.G.A. § 9-2-61 is available only when the original action was a “valid suit”; if a complaint is dismissed for a defect that is nonamendable, there is no “valid suit” to be renewed. Foskey v. Foster, 199 Ga. App. 205, 404 S.E.2d 303, 1991 Ga. App. LEXIS 406 (1991), overruled in part, Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). In order for the filing of a complaint to qualify as a valid renewal of a previously dismissed action, the proceedings which were dismissed must have constituted a “valid action.” Pursuant to this, it is essential that the declaration filed in the first instance should have been served

personally upon the defendant or otherwise in accordance with O.C.G.A. § 9-114(d)(7). Service upon the defendant’s parent at the parent’s residence is not “service” within the meaning of § 9-114(d)(7). Osborne v. Hughes, 200 Ga. App. 558, 409 S.E.2d 58, 1991 Ga. App. LEXIS 1067 (1991), cert. denied, No. S91C1488, 1991 Ga. LEXIS 581 (Ga. Sept. 6, 1991). Renewal statute is inapplicable if the original complaint did not constitute a “valid action” before dismissal. Scott v. Muscogee County, 949 F.2d 1122, 1992 U.S. App. LEXIS 58 (11th Cir. 1992). Since the plaintiff filed an original action when the defendant was a minor, but did not serve the defendant’s parents as required by O.C.G.A. § 9-11-4, the plaintiff’s first suit was void and no valid action existed which was renewable under O.C.G.A. § 9-2-61. Brooks v. Young, 220 Ga. App. 47, 467 S.E.2d 230. Voidable actions are renewable. - This section will apply to actions that are voidable, but not wholly void. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124, 1938 Ga. LEXIS 760 (1938). Privilege of dismissal and renewal under this section does not apply to void cases, but does apply to allow renewal when the previous action was merely voidable. United States Cas. Co. v. AMOCO, 104 Ga. App. 209, 121 S.E.2d 328, 1961 Ga. App. LEXIS 642 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820, 250 S.E.2d 560, 1978 Ga. App. LEXIS 2962 (1978); Patterson v. Douglas Women’s Center, 258 Ga. 803, 374 S.E.2d 737, 1989 Ga. LEXIS 88 (1989). Even though an uninsured motorist insurer could have raised the statute of limitations in an action by the insured, but the insured voluntarily dismissed the case before the insurer had an opportunity to do so, the case was merely voidable until the trial court ruled on the defense, and, thus, a renewal action by the insured was proper. Reid v. United States Fid. & Guar. Co., 223 Ga. App. 204, 477 S.E.2d 369, 1996 Ga. App. LEXIS 1102 (1996), aff’d, 268 Ga. 432, 491 S.E.2d 50, 1997 Ga. LEXIS 634 (1997). Suit in which an uninsured motorist carrier was served after the running of the statute of limitations was subject to dis-

Application (Cont’d) missal and renewal under O.C.G.A. § 92-61. United States Fid. & Guar. Co. v. Reid, 268 Ga. 432, 491 S.E.2d 50. Insured’s filing of a “John Doe” action with service on the insured’s uninsured motorist insurance carrier constituted a valid, pending action which was voidable rather than void, and which was capable of being renewed under O.C.G.A. § 9-261. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848. While a trial court was authorized to dismiss a complaint for failure to state a claim when a lawsuit was filed after the expiration of the statute of limitation, until such time as the court ruled on the asserted affirmative defense of the expiration of the statute of limitation, the action was voidable, not void. Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 272 Ga. 209, 528 S.E.2d 508, 2000 Ga. LEXIS 252 (2000). Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss their first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1, relying on renewal statute codified at O.C.G.A. § 9-2-61(a), and file a second request after the 30-day limitation period had expired; moreover, the first petition was a valid action which was merely voidable and not void. Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398, 2008 Ga. App. LEXIS 275 (2008), cert. denied, No. S08C1179, 2008 Ga. LEXIS 676 (Ga. Sept. 8, 2008). Based on O.C.G.A. § 9-11-9.1 and the renewal statute of O.C.G.A. § 9-2-61, the failure to file the required expert affidavit contemporaneously with a medical malpractice complaint does not render the complaint void ab initio but merely voidable and that the complaint can be renewed. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009), aff’d, 287 Ga. 406, 696 S.E.2d 640, 2010 Ga. LEXIS 508 (2010). Section inapplicable to reposed actions. - O.C.G.A. § 9-2-61 does not apply to actions effectively reposed under O.C.G.A. § 9-3-71(b). Wright v. Robinson,

262 Ga. 844, 426 S.E.2d 870, 1993 Ga. LEXIS 312 (1993); Burns v. Radiology Assocs., 214 Ga. App. 76, 446 S.E.2d 788, 1994 Ga. App. LEXIS 774 (1994); Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff’d, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995); Thompson v. Long, 225 Ga. App. 719, 484 S.E.2d 666. Action on contract is not renewal of action of trover. Southern Express Co. v. Sinclair, 135 Ga. 155, 68 S.E. 1113, 1910 Ga. LEXIS 454 (1910). Section not available to add new parties. - Interaction of O.C.G.A. § 92-61 with the amendment provisions of O.C.G.A. § 9-11-15(c) does not permit the addition of a new party to a second lawsuit which is filed within the six-month renewal period but outside the statute of limitations. Wagner v. Casey, 169 Ga. App. 500, 313 S.E.2d 756, 1984 Ga. App. LEXIS 1608 (1984); Patterson v. Rosser Fabrap Int’l, Inc., 190 Ga. App. 657, 379 S.E.2d 787, 1989 Ga. App. LEXIS 369 (1989); Allstate Ins. Co. v. Baldwin, 244 Ga. App. 664, 536 S.E.2d 558, 2000 Ga. App. LEXIS 827 (2000). Georgia renewal statute, O.C.G.A. § 92-61, could not have been used to suspend the running of the statute of limitation as to defendants different from those originally sued; the trial court did not err in dismissing a premises liability complaint when the injured person originally sued an incorrect defendant, then later sued the store owner after the statute of limitations had expired, then, after that case was dismissed, again sued the original incorrect defendant, and finally amended the complaint to include the store owner. Brown v. J. H. Harvey Co., 268 Ga. App. 322, 601 S.E.2d 808, 2004 Ga. App. LEXIS 909 (2004). Statute not applicable if claims plaintiff filed in first lawsuit were dismissed on merits. - Court of appeals affirmed a district court’s judgment dismissing an action which an arrestee filed, pursuant to 42 U.S.C. § 1983, against a police officer and others because the action was filed more than two years after the arrestee was allegedly injured while being arrested, and the claim was untimely under O.C.G.A. § 9-3-33. The

court rejected the arrestee’s claims that the arrestee’s lawsuit was timely under Georgia’s renewal statute, O.C.G.A. § 92-61(a), and Fed. R. Civ. P. 15(c) based on the filing of an earlier lawsuit against the same police officer and defendants who were not named in this second lawsuit less than two years after the arrestee was arrested because the claims in the original lawsuit were dismissed on the merits. Oduok v. Phillips, 154 Fed. Appx. 878, 2005 U.S. App. LEXIS 24958 (11th Cir. 2005), cert. denied, 549 U.S. 849, 127 S. Ct. 114, 166 L. Ed. 2d 84, 2006 U.S. LEXIS 6633 (2006). Section not available to add new claim. - Since the original action, alleging only negligence, was dismissed without prejudice and the plaintiff amended the complaint in an action refiled under O.C.G.A.§ 9-2-61 to add a claim of nuisance, that claim was barred by the statute of limitation. Alfred v. Right Stuff Food Stores, Inc., 241 Ga. App. 338, 525 S.E.2d 717. Employee could not amend a complaint to state a cause of action for intentional infliction of emotional distress against an employer upon renewal of the complaint under O.C.G.A. § 9-2-61(a) as the renewed causes of action had to state substantially the same causes of action as the prior ones in order to avoid the statute of limitations bar; such a claim was not evident in the employee’s prior complaint. Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 625 S.E.2d 445, 2005 Ga. App. LEXIS 1332 (2005), cert. denied, No. S06C0806, 2006 Ga. LEXIS 545 (Ga. July 13, 2006). Section not available against different defendants. - Action against a different defendant is not a renewal. Floyd & Lee v. Boyd, 16 Ga. App. 43, 84 S.E. 494, 1915 Ga. App. LEXIS 497 (1915). This section may not be used to suspend running of the statute of limitations as to defendants different from those originally sued. Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773, 229 S.E.2d 551, 1976 Ga. App. LEXIS 1983 (1976). Renewal action could not be brought against the executrix of an estate to evade the statute of limitation bar since neither the deceased nor the estate had been

named as a party defendant in the original action. Reedy v. Fischer, 193 Ga. App. 684, 388 S.E.2d 759, 1989 Ga. App. LEXIS 1591 (1989); Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199. Joinder of all original defendants not always required. - Renewed action brought under this section must be on the same cause of action and against the same essential parties, but need not necessarily be brought against all defendants who were parties in the dismissed action, unless all were necessary parties to the first action. Burks v. Wheeler, 92 Ga. App. 478, 88 S.E.2d 793, 1955 Ga. App. LEXIS 612 (1955); Thornhill v. Bullock, 118 Ga. App. 186, 162 S.E.2d 886, 1968 Ga. App. LEXIS 1348 (1968), overruled, McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632, 1974 Ga. App. LEXIS 1145 (1974), superseded by statute as stated in Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 306 S.E.2d 290, 1983 Ga. LEXIS 834 (1983). In determining whether defendant in first action is necessary party in second, it must be determined whether or not a right of contribution actually existed, but whether in the event the plaintiff recovered against defendants, a right of contribution would then exist. Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734, 1941 Ga. App. LEXIS 463 (1941), overruled in part, Burks v. Wheeler, 92 Ga. App. 478, 88 S.E.2d 793, 1955 Ga. App. LEXIS 612 (1955). Actions against joint tort-feasors. - When liability of defendants is joint and several, with no right of contribution, as in libel, second action against all defendants to the first is within this section. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904). When action was brought in a certain county against the county and an individual residing in a different county as alleged joint tort-feasors, and was dismissed as to the county because it did not state a cause of action and as to the individual because in absence of the county as codefendant the court had no jurisdiction of the codefendant, this section would permit the plaintiff to renew the action against the individual defen-

Application (Cont’d) dant within six months from dismissal as to such defendant. Clark v. Newsome, 50 Ga. App. 591, 178 S.E. 386, 179 S.E. 143, 1935 Ga. App. LEXIS 228 (1935). When the plaintiff in the first action elected to sue the defendants jointly, such that defendants would be entitled to contribution, a subsequent action against only one of such defendants would not prevent bar of the statute of limitations from attaching to the cause of action. Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734, 1941 Ga. App. LEXIS 463 (1941), overruled in part, Burks v. Wheeler, 92 Ga. App. 478, 88 S.E.2d 793, 1955 Ga. App. LEXIS 612 (1955). When action was brought against joint tort-feasors, each of whom was jointly suable but severally liable, it was not necessary in renewed action brought under this section that all defendants be parties, even when the original action was timely brought before the statute of limitations had run but the parties were stricken in renewing action after the statutory period had expired. Burks v. Wheeler, 92 Ga. App. 478, 88 S.E.2d 793, 1955 Ga. App. LEXIS 612 (1955). Application to third-party complaints. - O.C.G.A. § 9-2-61 applied to allow a defendant who filed and then dismissed a third-party complaint to renew the defendant’s case after dismissal without prejudice. Bertone v. Wilkinson, 213 Ga. App. 255, 444 S.E.2d 576, 1994 Ga. App. LEXIS 526 (1994). Renewal action was not timely, since the third-party complaint in the prior related action had only stated claims for contribution and indemnification and did not put the defendant on notice of a claim for personal injuries within the applicable statute of limitation. Bertone v. Wilkinson, 213 Ga. App. 255, 444 S.E.2d 576, 1994 Ga. App. LEXIS 526 (1994). Defendant in capacity as individual and as deputy. - Renewal action against a party not named in the original complaint cannot be maintained. O.C.G.A. § 9-2-61 may not be used to suspend the running of the statute of limitation as to defendants different from

those originally sued. Accordingly, plaintiff’s action against defendant in a capacity as deputy sheriff was barred by the statute of limitations since the original action was against defendant personally. Soley v. Dodson, 256 Ga. App. 770, 569 S.E.2d 870, 2002 Ga. App. LEXIS 887 (2002), cert. denied, No. S02C1861, 2002 Ga. LEXIS 951 (Ga. Oct. 16, 2002). Defendant in trustee capacity substantially different from defendant as individual. - Since the original petition was brought against the defendant in an alleged representative trustee capacity and against trust property, a second action brought within six months after dismissal of the first, against the defendant only in an individual capacity, praying only for general judgment against it, is not a renewal such as will toll the statute of limitations, since it involves a substantially different defendant and shows no exception to the general rule as to the requirement of identity of parties in order to suspend the statute of limitations. Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497, 1937 Ga. LEXIS 548 (1937). Renewal against company formed from merger with previous defendant. - Since, while the case was pending, a company was merged with another and ceased to exist as a separate entity, renewal of an action against the company resulting from the merger was permissible. Atlantic Coast Line R.R. v. Knapp, 139 Ga. 422, 77 S.E. 568, 1913 Ga. LEXIS 452 (1913). Sole shareholder not named in first suit. - Refiling of a case under O.C.G.A. § 9-2-61 did not toll the statute of limitations against the sole shareholder of a corporation since the first suit named only the corporation as a defendant, whereas the second suit added the shareholder as a defendant for the first time. Heyde v. Xtraman, Inc., 199 Ga. App. 303, 404 S.E.2d 607, 1991 Ga. App. LEXIS 431 (1991), cert. denied, No. S91C0985, 1991 Ga. LEXIS 770 (Ga. May 15, 1991). Action against partner following dismissal of action against partnership. - When one sues a partnership and the action is nonsuited (involuntarily dismissed), one cannot recommence action

against one of the partners individually. Ford v. Clark, 75 Ga. 612, 1885 Ga. LEXIS 188 (1885). When action against a partnership has been nonsuited (involuntarily dismissed) and another action instituted against an individual whom it was alleged belonged to or was a member of a partnership firm formerly sued, the bar of the statute of limitations will not be prevented from attaching to a cause of action under this section. Southern Flour & Grain Co. v. Simmons, 49 Ga. App. 517, 176 S.E. 121, 1934 Ga. App. LEXIS 460 (1934). Amendment to action brought by CEO and investment company against corporation related back. - Trial court did not err in refusing to dismiss, as time barred, a complaint brought by a CEO and an investment company against a corporation because, although originally filed as a declaratory judgment action, the CEO and the investment company filed an amendment seeking indemnification and a money judgment; since there had been no entry of a pretrial order, the amendment-expressly stating that no declaratory judgment was being soughtrelated back to the date the original complaint was filed in state court and the complaint was not a nullity. Thus, the claim was timely under the renewal statute, O.C.G.A. § 9-2-61(a). McKesson Corp. v. Green, 299 Ga. App. 91, 683 S.E.2d 336, 2009 Ga. App. LEXIS 841 (2009), cert. denied, No. S09C1940, 2009 Ga. LEXIS 650 (Ga. Oct. 19, 2009), cert. denied, No. S09C1934, 2009 Ga. LEXIS 653 (Ga. Oct. 19, 2009). Renewal following voluntary dismissal of medical malpractice action was not required to have been accomplished within two years of the date of injury. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844, 1994 Ga. App. LEXIS 714 (1994). Renewal action against administrator or representative of deceased defendant in action voluntarily dismissed by plaintiff may take advantage of tolling of the statute of limitations for six months under this section. Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 249 S.E.2d 21, 1978 Ga. LEXIS 1199 (1978). Action against additional personal representatives. - When action instituted against an estate having more than

one personal representative was abated for nonjoinder of some of the representatives, this section applies to a second action against the estate with all the representatives joined as defendants. Greenfield v. Farrell Heating & Plumbing Co., 17 Ga. App. 637, 87 S.E. 912, 1916 Ga. App. LEXIS 823 (1916). Renewal action by plaintiff’s administrator is same as renewal by plaintiff. Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 249 S.E.2d 21, 1978 Ga. LEXIS 1199 (1978). Action renewed or recommenced by representative of deceased plaintiff is brought by the same plaintiff, in contemplation of this section, just as when action is instituted by successive trustees, since the cause of action and cestui que trust are the same. Moody v. Threlkeld, 13 Ga. 55, 1853 Ga. LEXIS 50 (1853). Failure to serve subsequent defendants. - Injured prison inmate’s failure to serve subsequent defendants in original federal court case for alleged civil rights violations precluded the inmate from using the saving provision of subsection (a) of O.C.G.A. § 9-2-61, since in order to bring a dismissed action within its scope, so as to make the action stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. Wimberly v. Department of Cors., 210 Ga. App. 57, 435 S.E.2d 67, 1993 Ga. App. LEXIS 1067 (1993). Equitable estoppel not relevant when failure to serve. - Court of appeals correctly reversed a trial court’s grant of summary judgment to a driver and a corporation, which was based on a second driver’s lack of diligence in serving the second driver’s personal injury complaint in the second driver’s voluntarily dismissed original action because that driver was not equitably estopped from proceeding with the driver’s renewal action; the first driver and corporation did not allege an affirmative act of deception, and to the extent that the second driver had a duty to speak to them, it was to inform them of the lawsuit, but that duty was defined by the Georgia Code, which included the renewal statute, O.C.G.A.

Application (Cont’d) § 9-2-61. Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165, 2010 Ga. LEXIS 772 (2010). Action on nonnegotiable instrument by different plaintiff. - When a new action on a nonnegotiable instrument is commenced by another and different plaintiff, pendency and dismissal of the former action will not avoid bar of the statute. Moss v. Keesler, 60 Ga. 44, 1878 Ga. LEXIS 368 (1878). Rule requiring substantial identity of essential parties is not violated if a party in the later case is the successor trustee or other representative of an original party who occupied the same position as plaintiff or defendant, or if the first action was dismissed for nonjoinder of one of the representatives of the estate, who is added as party to the second action, or if the first action is brought against two defendants, dismissed as to both, and renewed as to only one; or if the difference is merely as to nominal or unnecessary parties. Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497, 1937 Ga. LEXIS 548 (1937). Same cause of action required. - When petition seeks to renew a former action within six months of its dismissal, which would otherwise be barred by statute of limitations, but for this section, it must appear from the renewal petition that the new action is substantially the same cause of action as that of the former action. Barber v. City of Rome, 39 Ga. App. 225, 146 S.E. 856, 1929 Ga. App. LEXIS 268 (1929). Based on O.C.G.A. § 9-2-61, an arrestee’s excessive force claim against a sheriff’s major in the major’s individual capacity was revived after a voluntary dismissal but assuming that the complaint alleged actual malice under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d), as to the major’s conduct, the tort claim had to be brought against the state under O.C.G.A. § 50-21-25(b); however, the state did not waive the state’s sovereign immunity under O.C.G.A. § 50-21-23(b) for such claim to be brought in federal court. Jude v. Morrison, 534 F. Supp. 2d 1365, 2008 U.S. Dist. LEXIS 55756 (N.D. Ga. 2008).

Assertion of same claims. - Trial court did not err by concluding that the claims in a renewed action were sufficiently similar to the original claims against a corporation’s executive officer (CEO) so that the statute of limitation was tolled under the renewal statute, O.C.G.A. § 9-2-61(a), because in both complaints the plaintiffs claimed the same allegations against the CEO. Cushing v. Cohen, 323 Ga. App. 497, 746 S.E.2d 898, 2013 Ga. App. LEXIS 678 (2013), cert. denied, No. S13C1810, 2013 Ga. LEXIS 936 (Ga. Nov. 4, 2013), cert. denied, No. S13C1715, 2013 Ga. LEXIS 941 (Ga. Nov. 4, 2013). Second action does not have to be a literal copy of the one dismissed. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904). This section is a remedial statute and is to be liberally construed; hence, while the second action must be substantially the same cause of action, it does not have to be a literal copy of the one which was dismissed. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904); Guest v. Atlantic Coast Line R.R., 37 Ga. App. 102, 139 S.E. 97, 1927 Ga. App. LEXIS 494 (1927). Additional allegations and defenses on renewal. - On renewal, plaintiff may allege additional facts or contentions, and defendant likewise may interpose such defensive pleadings as the defendant may deem best. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141, 189 S.E. 555, 1937 Ga. App. LEXIS 1 (1937). New facts, contentions and defenses may be alleged in renewed action. - Plaintiff, on renewal, may allege additional facts or contentions, and the defendant likewise can interpose such defensive pleadings as the defendant may deem best. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). Suit which has been dismissed and renewed, even in the same court, may be defended on renewal on the grounds of venue though no such defense was raised

in the original action. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). New claims not permitted if expired by statute of limitations. - Even though the patient and husband’s renewal action was timely filed because it was filed within six months after the dismissal of the original action, the trial court should have granted the psychologist and clinic’s motion for judgment on the pleadings as to the patient and husband’s sexual assault, battery, and loss of consortium claims raised in the refiled action since those claims were not raised in the original complaint and the statute of limitations on the claims had expired by the time those claims were filed in the refiled action. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190, 2003 Ga. App. LEXIS 1009 (2003), cert. denied, No. S04C0114, 2004 Ga. LEXIS 102 (Ga. Jan. 20, 2004), cert. denied, No. S04C0106, 2004 Ga. LEXIS 103 (Ga. Jan. 20, 2004). Use of admissions made in original action. - Plain language of O.C.G.A. § 9-11-36(b) confines the use of admissions made pursuant to such discovery tool to the action in which they are made and forbids their use in a subsequent or other action, including a renewal action under O.C.G.A. § 9-2-61. Mumford v. Davis, 206 Ga. App. 148, 424 S.E.2d 306, 1992 Ga. App. LEXIS 1400 (1992), cert. denied, No. S93C0273, 1993 Ga. LEXIS 157 (Ga. Feb. 5, 1993). This section does not prevent defendant from filing such proceedings as the defendant deems best as against recommenced action. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141, 189 S.E. 555, 1937 Ga. App. LEXIS 1 (1937). Right of counterclaimant to renew. - Since a counterclaimant is the plaintiff in the counterclaiment’s own right in asserting a counterclaim, O.C.G.A. § 9-2-61 gives a counterclaimant the right of renewal within six months of the discontinuing or dismissing of the case. Cale v. Jones, 176 Ga. App. 865, 338 S.E.2d 68, 1985 Ga. App. LEXIS 2427 (1985).

Defendant who voluntarily dismissed without prejudice a compulsory counterclaim could not renew it as an original action under O.C.G.A. § 9-2-61 after the plaintiff had voluntarily dismissed with prejudice the main claim without objection by the defendant because renewal of the counterclaim was barred by res judicata. Robinson v. Stokes, 229 Ga. App. 25, 493 S.E.2d 5. This section applies when case is dismissed for want of prosecution. Rountree v. Key, 71 Ga. 214, 1883 Ga. LEXIS 163 (1883). Action against municipality may be renewed when petition in the first action failed to comply with the formalities of former Civil Code 1910, § 910 (see now O.C.G.A. § 36-33-5). City of Tallapoosa v. Brock, 28 Ga. App. 384, 111 S.E. 88, 1922 Ga. App. LEXIS 534 (1922). This section applies to all ordinary actions, including ejectment actions. Moss v. Keesler, 60 Ga. 44, 1878 Ga. LEXIS 368 (1878). O.C.G.A. § 9-2-61 applies to appeals and certiorari from lower courts and if a certiorari petition is involuntarily dismissed for failure to prosecute, it may be renewed within six months. Genins v. City of Atlanta, 203 Ga. App. 269, 416 S.E.2d 838, 1992 Ga. App. LEXIS 495 (1992). This section applies to certiorari proceedings. Brown v. Seals, 17 Ga. App. 4, 86 S.E. 277, 1915 Ga. App. LEXIS 237 (1915); Brackett v. Sebastian, 18 Ga. App. 525, 89 S.E. 1102, 1916 Ga. App. LEXIS 1092 (1916). When valid certiorari has been dismissed, it may be renewed within six months under this section. Gragg Lumber Co. v. Collins, 37 Ga. App. 76, 139 S.E. 84, 1927 Ga. App. LEXIS 467 (1927); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260, 1934 Ga. App. LEXIS 650 (1934). Petition for certiorari which is void for any reason cannot be renewed. Talley v. Commercial Credit Co., 173 Ga. 828, 161 S.E. 832, 1931 Ga. LEXIS 420 (1931). When certiorari was dismissed because of want of compliance with former Civil Code 1910, § 4365 (see now O.C.G.A. § 54-6), petition for certiorari and writ of

Application (Cont’d) certiorari were invalid; hence, there was no case which could be recommenced within six months as provided in former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61). Butters Mfg. Co. v. Sims, 47 Ga. App. 648, 171 S.E. 162, 1933 Ga. App. LEXIS 589 (1933). Void certiorari cannot be renewed. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267, 1934 Ga. App. LEXIS 371 (1934); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260, 1934 Ga. App. LEXIS 650 (1934). Application for certiorari following dismissal for lack of service. - Failure to serve the officer whose decision it is sought to review may cause a dismissal, but such dismissal does not bar a second application for certiorari when it is made to appear that such a fact is the sole reason for the dismissal and that it is not a decision on the merits. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77, 1981 Ga. App. LEXIS 2696 (1981). Refiling of state claim in state court after dismissal in federal court. - Georgia law allows plaintiffs to refile their state claims in a state court upon a voluntary dismissal of the claims in a federal court. Hubbard v. Stewart, 651 F. Supp. 294, 1987 U.S. Dist. LEXIS 158 (M.D. Ga. 1987). Plaintiffs may renew their state law claims in state court within six months of the dismissal of their claims by a federal district court, when the merits of the pendent state law claims were not reached by the federal court. O’Neal v. DeKalb County, 667 F. Supp. 853, 1987 U.S. Dist. LEXIS 7177 (N.D. Ga. 1987), aff’d, 850 F.2d 653, 1988 U.S. App. LEXIS 9980 (11th Cir. 1988). Section applicable in federal court when action originally in state court. - In certain circumstances, O.C.G.A. § 92-61 is to be applied in a United States District Court the same as it is applied in the courts of the state. Where plaintiffs voluntarily dismissed a state court action and recommenced within six months in federal court, the renewed case stands upon the same footing, as to limitation, with the original case. The statute of limi-

tations has therefore not expired. Lamb v. United States, 526 F. Supp. 1117, 1981 U.S. Dist. LEXIS 9953 (M.D. Ga. 1981). Section inapplicable in federal court actions. - When the original action was commenced in state court and removed to federal court, when it was dismissed, the action could not be renewed in the state court. Cox v. East Tenn. & Ga. R.R., 68 Ga. 446, 1882 Ga. LEXIS 28 (1882); Webb v. Southern Cotton Oil Co., 131 Ga. 682, 63 S.E. 135, 1908 Ga. LEXIS 178 (1908). Action dismissed in federal court cannot be renewed in state courts. Constitution Publishing Co. v. DeLaughter, 95 Ga. 17, 21 S.E. 1000, 1894 Ga. LEXIS 432 (1894). Action brought in state court, properly removed by the defendant to federal court having concurrent jurisdiction, and there dismissed on the plaintiff’s motion, cannot, under this section, be renewed in state court within six months of such dismissal, so as to avoid the bar of the statute of limitations. Ivester v. Southern Ry., 61 Ga. App. 364, 6 S.E.2d 214, 1939 Ga. App. LEXIS 298 (1939). Statute of limitations for an action for the same cause which has previously been filed in federal district court and there dismissed is not tolled by this section, which is not applicable to suits commenced in federal courts. Nevels v. Detroiter Mobile Homes, 124 Ga. App. 112, 183 S.E.2d 77, 1971 Ga. App. LEXIS 832 (1971). This section is not applicable when the original action was filed in federal court but is applicable only to actions originally filed in state courts of Georgia. Hudnall v. Kelly, 388 F. Supp. 1352, 1975 U.S. Dist. LEXIS 13976 (N.D. Ga. 1975). While choice of forums is the litigant’s, this section will be no protection if the litigant chooses the federal forum. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284, 1977 Ga. App. LEXIS 2592 (1977). This section does not apply to actions first commenced in federal court. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284, 1977 Ga. App. LEXIS 2592 (1977); Laine v. Wright, 586 F.2d 607, 1978 U.S. App. LEXIS 6988 (5th Cir. 1978).

Words “court of this state” in this section mean “courts created by the constitution and laws of this state”; accordingly, this section does not apply to actions brought in federal court sitting in this state. Diversified Mtg. Investors v. Georgia-Carolina Indus. Park Venture, 463 F. Supp. 538, 1978 U.S. Dist. LEXIS 7174 (N.D. Ga. 1978). This rule does not apply where the original filing is in federal court. Blaustein v. Harrison, 160 Ga. App. 256, 286 S.E.2d 758, 1981 Ga. App. LEXIS 2967 (1981). Rule that O.C.G.A. § 9-2-61 does not apply when the original filing is in federal court is not unconstitutional as it is based upon United States Supreme Court precedent. Blaustein v. Harrison, 160 Ga. App. 256, 286 S.E.2d 758, 1981 Ga. App. LEXIS 2967 (1981). Since the employee’s discrimination suit against the employer was based on Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the court rejected the employee’s contention that state law, not federal law, governed the voluntary dismissal of the employee’s complaint and that O.C.G.A. § 9-2-61(a) afforded the employee a second chance to file the employee’s original complaint as long as the employer received notice of the lawsuit. The suit was filed pursuant to Title VII, a federal law that contained a statute of limitations. Weldon v. Elec. Data Sys. Corp., 138 Fed. Appx. 136, 2005 U.S. App. LEXIS 7961 (11th Cir. 2005). Actions filed in other jurisdictions. - This section is inapplicable when the case was originally filed in a jurisdiction other than Georgia. Sherrill v. U.S. Fid. & Guar. Co., 108 Ga. App. 591, 133 S.E.2d 896, 1963 Ga. App. LEXIS 715 (1963). O.C.G.A. § 9-2-61 is inapplicable to Federal Employers’ Liability Act (45 U.S.C. § 51 et seq.) actions. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822, 348 S.E.2d 97, 1986 Ga. App. LEXIS 2669 (1986). Section inapplicable to collection of Interstate Commerce Act demurrage charges. - O.C.G.A. § 9-2-61 cannot operate to save a cause of action for collection of demurrage charges filed pur-

suant to the Interstate Commerce Act, 49 U.S.C. § 101 et seq. J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13, 380 S.E.2d 724, 1989 Ga. App. LEXIS 471 (1989). This section has no application under the Workers’ Compensation Act. Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177, 174 S.E. 726, 1934 Ga. App. LEXIS 317 (1934); Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828, 184 S.E. 808, 1936 Ga. App. LEXIS 263 (1936); Gordy v. Callaway Mills Co., 111 Ga. App. 798, 143 S.E.2d 401, 1965 Ga. App. LEXIS 1104 (1965). Former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61) did not apply to actions to foreclose a materialman’s lien on real estate under former Civil Code 1910, § 3353 (see now O.C.G.A. § 44-14361.1). Chamblee Lumber Co. v. Crichton, 136 Ga. 391, 71 S.E. 673, 1911 Ga. LEXIS 554 (1911). O.C.G.A. § 9-2-61 does not apply to claims before the State Board of Workers’ Compensation. Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69, 1981 Ga. App. LEXIS 2542 (1981). This section does not apply to foreclosure of lien on sawmill. Walker v. Burt, 57 Ga. 20, 1876 Ga. LEXIS 6 (1876). This section has no application to disbarment proceeding. Williford v. State, 56 Ga. App. 840, 194 S.E. 384, 1937 Ga. App. LEXIS 247 (1937). Section inapplicable where limitation created by contract. - When a party to an insurance policy agrees to sue within one year, or not at all, this section does not apply to an action on the policy. Melson v. Phoenix Ins. Co., 97 Ga. 722, 25 S.E. 189, 1895 Ga. LEXIS 563 (1895). When an action was barred by a limitation in a contract with a carrier, this section did not apply. Leigh Ellis & Co. v. Payne, 274 F. 443, 1921 U.S. Dist. LEXIS 1169 (D. Ga.), aff’d, 276 F. 400, 1921 U.S. App. LEXIS 2101 (5th Cir. 1921). The Georgia “savings” statute, subsection (a) of O.C.G.A. § 9-2-61, does not operate to save a renewed action from a contractual limitations period, such as that in an insurance policy. Stenger Indus., Inc. v. International Ins. Co., 74 B.R.

Application (Cont’d) 1017, 1987 U.S. Dist. LEXIS 9634 (N.D. Ga. 1987). Filing third suit following dismissal of second suit for failing to pay costs of original suit. - If a O.C.G.A. § 9-11-41(b) dismissal for failure to make payment of costs in the original suit prior to filing of a second suit occurs within the period of the statute of limitations, there is nothing to prevent the plaintiff from paying costs in both dismissed suits and filing a third suit so long as the first dismissal did not act as an adjudication on the merits. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, 1983 Ga. LEXIS 659 (1983). Dismissal of action for failure to pay previous fees and costs. - When the consumer’s products liability action was dismissed without prejudice under Fed. R. Civ. P. 41(a)(2), the dismissal order indicated that the manufacturer was entitled to fees and costs; when the consumer refiled the action, the district court abused the court’s discretion by dismissing the action because the consumer had not paid fees and costs. The prior voluntary dismissal order indicated only that the manufacturer was entitled to the manufacturer’s attorney’s fees and costs and that the next court should resolve the fee/cost petition; the consumer was not prohibited from refiling the action under O.C.G.A. § 9-2-61. Parrish v. Ford Motor Co., 299 Fed. Appx. 856, 2008 U.S. App. LEXIS 22712 (11th Cir. 2008). Validity of renewal action in issue. - Trial court’s partial grant of summary judgment on statute of limitations defense to plaintiff’s slander claim was reversed since there remained a genuine issue of material fact as to whether the plaintiff’s action was a valid renewal action under O.C.G.A. § 9-2-61. Elder v. Cardoso, 205 Ga. App. 144, 421 S.E.2d 753, 1992 Ga. App. LEXIS 1091 (1992). Mistaken information from clerk that no costs due. - Costs which must be paid pursuant to O.C.G.A. § 9-11-41, as a precondition to the filing of a new suit, do not include costs unknown to the plaintiff after a good faith inquiry since the attorney was mistakenly informed by

the clerk of the trial court that no costs were due on a previous action. But any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction. Daugherty v. Norville Indus., Inc., 174 Ga. App. 89, 329 S.E.2d 202, 1985 Ga. App. LEXIS 1754 (1985). Action renewed pursuant to subsection (a) of O.C.G.A. § 9-2-61 is an action de novo, and a defendant is not estopped from raising a proper defense (such as insufficiency of service) in a renewal action simply because the defense was not raised in the original action. Adams v. Gluckman, 183 Ga. App. 666, 359 S.E.2d 710, 1987 Ga. App. LEXIS 2062 (1987). Renewed case in effect de novo. - When a case is renewed, recommenced, or brought over under this section, it is in effect de novo, except that the statute of limitations does not run. Bishop v. Greene, 62 Ga. App. 126, 8 S.E.2d 448, 1940 Ga. App. LEXIS 612 (1940). Since the claimant dismissed the lawsuit against the insured and refiled an identical suit under O.C.G.A. § 9-2-61, the insured’s tardy forwarding of the suit papers in the first action was cured by the dismissal and the insurer was not relieved of its obligation to defend the second suit or of its potential liability thereunder. Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 262 Ga. 502, 422 S.E.2d 191, 1992 Ga. LEXIS 921 (1992). Renewed lawsuit under O.C.G.A. § 9-261(a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew, and diligence in perfecting service in a renewal action must be measured from the time of filing the renewed suit. Magsalin v. Chace, 255 Ga. App. 146, 564 S.E.2d 554, 2002 Ga. App. LEXIS 537 (2002). Renewal action not established. - Driver did not make the requisite showing in the driver’s renewed complaint, nor did the record contain any evidence that the driver’s complaint met the test for renewal, and, although both actions were apparently filed in the same court, there

was no indication that the driver requested that the trial court take judicial notice of the record in the driver’s original case; therefore, the appellate court concluded that the driver did not meet the burden of showing that the trial court erred in concluding that the driver’s second action was barred by the statute of limitations. Belcher v. Folsom, 258 Ga. App. 191, 573 S.E.2d 447, 2002 Ga. App. LEXIS 1392 (2002). Section applied and permitted renewal when affidavit was mistakenly omitted. - When all parties agreed that a patient’s expert affidavit was available when the patient’s first medical malpractice complaint was filed but was mistakenly omitted, O.C.G.A. § 9-11-9.1 applied and permitted renewal; the trial court erred in granting summary judgment in favor of a doctor and an institute in the patient’s malpractice case. Rector v. O’Day, 268 Ga. App. 864, 603 S.E.2d 337, 2004 Ga. App. LEXIS 1035 (2004), cert. denied, No. S04C2090, 2004 Ga. LEXIS 1053 (Ga. Nov. 22, 2004). Trial court erred by dismissing a couple’s renewed negligence complaint for failing to file an expert affidavit with the couple’s original complaint as required by O.C.G.A. § 9-11-9.1(a) because the record failed to contain sufficient findings showing whether any professional negligence was involved with regard to the wife falling from a testing table as it was merely speculative whether the technician had to assess the wife’s medical condition in order to decide whether she could get down from a raised table since it could have been that no professional judgment was required. The trial court additionally erred by dismissing the couple’s renewed complaint because the defending medical entities waived their objection to the renewal by failing to file a separate motion to dismiss contemporaneously with their answer to the couple’s original action. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009), aff’d, 287 Ga. 406, 696 S.E.2d 640, 2010 Ga. LEXIS 508 (2010). Motion for attorney fees cannot be renewed. - Because a defendant timely filed a motion for attorney fees under

O.C.G.A. § 9-15-14 but later withdrew it, the trial court erred in ruling that the motion could be renewed under O.C.G.A. § 9-2-61(a); as the “renewed motion” was filed more than 45 days after entry of summary judgment, the trial court erred in granting the neighbor attorney fees. Condon v. Vickery, 270 Ga. App. 322, 606 S.E.2d 336, 2004 Ga. App. LEXIS 1414 (2004). Georgia Prison Litigation Reform Act. - Discretionary application requirement of Georgia Prison Litigation Reform Act, O.C.G.A. § 42-12-8, was inapplicable to an injured party’s renewed personal injury suit because the injured party was not a prisoner when the de novo action was filed. Baskin v. Ga. Dep’t of Corr., 272 Ga. App. 355, 612 S.E.2d 565, 2005 Ga. App. LEXIS 292 (2005). Executor’s renewal action. - In the absence of an explicit order in an executor’s renewal action, O.C.G.A. § 9-2-61(a), requiring the executor to identify the executor’s expert witnesses by a date certain, the executor’s failure to do so did not warrant the extreme sanction of dismissal under O.C.G.A. § 9-11-41(b), (c). Porter v. WellStar Health Sys., 299 Ga. App. 481, 683 S.E.2d 35, 2009 Ga. App. LEXIS 833 (2009), cert. denied, No. S09C2031, 2010 Ga. LEXIS 80 (Ga. Jan. 25, 2010). Untimely service of process in first action not a defense in renewal action. - Because defendants were timely served in a renewal action brought under O.C.G.A. § 9-2-61(a), the defendants could not assert as a defense the fact that the defendants were served five years after the initial action, which had been dismissed following service of defendants. The equitable doctrine of laches, O.C.G.A. § 9-3-3, did not apply in a personal injury action because the action was a legal action. Boyd v. Robinson, 299 Ga. App. 795, 683 S.E.2d 862, 2009 Ga. App. LEXIS 977 (2009), aff’d, 288 Ga. 53, 701 S.E.2d 165, 2010 Ga. LEXIS 772 (2010). Renewal proper. - Because a health care provider simply raised a patient’s failure to comply with O.C.G.A. § 9-119.1(a) as a defense in the provider’s answer rather than in a contemporaneous motion to dismiss, as required by § 9-119.1(c), the patient was not precluded from

Application (Cont’d) renewing a negligence action pursuant to

O.C.G.A. § 9-2-61. Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 696 S.E.2d 640, 2010 Ga. LEXIS 508 (2010).

RESEARCH REFERENCES Am. Jur. 2d. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, § 97 et seq. 51 Am. Jur. 2d, Limitation of Actions, § 253 et seq. ALR. Defective pleading as within proviso or saving clause permitted new action after failure of previous action notwithstanding general limitation period has run, 77 A.L.R. 495. Period within which new action may be commenced after nonsuit or judgment not on merits, 83 A.L.R. 478. What amounts to a nonsuit within contemplation of statute extending time for new action in case of nonsuit, 86 A.L.R. 1048. Time for filing petition for removal of action from state to federal court as affected by extension of time for pleading, 108 A.L.R. 966. Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767. Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423. Character or kind of action or proceeding within operation of statute which permits new action after expiration of period of limitation, upon failure of previous action commenced within the period, 120 A.L.R. 376; 79 A.L.R.2d 1309. Statutes permitting new action after failure of original action commenced within period of limitations as applied in cases where original action fails for reasons relating to the writ or process or the service thereof, 142 A.L.R. 1184. Original notice of lis pendens as effective upon renewal of litigation after dismissal, reversal, or nonsuit, reserving right to begin another proceeding, 164 A.L.R. 515. Statute permitting new action, after failure of original action timely com-

menced, as applicable where original action was filed in another state, 55 A.L.R.2d 1038. Determination of beginning of period allowed by statute for commencement of new action after failure, otherwise than on the merits, or action timely begun, 79 A.L.R.2d 1270. Voluntary dismissal or nonsuit as within provision of statute extending time for new action in case of dismissal or failure of original action otherwise than upon the merits, 79 A.L.R.2d 1290. Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before “trial,” “commencement of trial,” “trial of the facts,” or the like, 1 A.L.R.3d 711. Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043. Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 A.L.R.3d 848. Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations, 13 A.L.R.3d 979. Attorneys at law: delay in prosecution of disciplinary proceeding as defense or mitigating circumstance, 93 A.L.R.3d 1057. Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers, 97 A.L.R.6th 375. Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers, 98 A.L.R.6th 93. Application of relation-back doctrine permitting change in party after statute of

limitations has run in state court action - motor vehicle accident or injury cases: estates, and other or unspecified parties, 99 A.L.R.6th 1.

Construction and application of twodismissal rule under federal law, 10 A.L.R. Fed.3d 4.