Leroy Vernon Jones was walking along the side of the road at night in Valdosta, Georgia, when he was struck by a vehicle. The administrators of his estate and his daughter (collectively, “Whitesell”) brought a suit against Georgia Power Company (“Georgia Power”) alleging that dim lighting caused Jones’ wrongful death. Shortly thereafter, Whitesell voluntarily dismissed the suit. He then attempted to file a renewal suit. The trial court dismissed that suit and on appeal, the Court of Appeals of Georgia affirmed. Whitesell v. Georgia Power Company, 2017 WL 1406999 (Ga. Ct. App. 2017).
The issue with the renewal suit is that it was filed after the original statute of limitations had expired. However, an exception applies where a suit may be “recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” Belcher v. Folsom, 258 Ga.App. 191 (2002). To be entitled to this exception, Whitesell was required to follow detailed procedures. If the trial court has not taken judicial notice of a prior lawsuit, the plaintiff must affirmatively show in the complaint that the renewal lawsuit is properly filed. Id. The Court of Appeals of Georgia does not take this standard lightly and sets out four steps to ensure a plaintiff follows proper procedure. The renewal petition must show: (1) that the former petition was not a void suit, (2) that it is such a valid suit as may be renewed under OCGA § 9-2-61, (3) that it is based upon substantially the same cause of action, and, (4) that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as an automatic bar. Id. at 192.
Here, Whitesell failed to plead specifically that the second suit was a renewal suit. Whitesell did amend his complaint to attempt to remedy this error; however, the amendment merely stated, “[t]his is a renewal action against the Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia, under Civil Action # 2013CV2462.” The Court held that this statement was insufficient to affirmatively show that the renewal suit was filed properly. The Court mentions that Whitesell should have included language to show the original suit was not void, included original pleadings in the record, or indicated that the trial court took judicial notice of the original suit. Interestingly, the Court acknowledges the impact of permanently barring Whitesell from bringing these claims against Georgia Power; however, the Court refused to deviate from the requirements that have been clearly set out.
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