Aiken Dermatology & Skin Cancer Clinic, P.A. v. DavLong Sys., Inc.

• Decision Date: 09 March 2012
• Docket Number: No. A11A2310.,A11A2310.
• Citation: 725 S.E.2d 835,314 Ga.App. 699,12 FCDR 995
• Court: Georgia Court of Appeals
• Parties: AIKEN DERMATOLOGY & SKIN CANCER CLINIC, P.A. v. DavLONG SYSTEMS, INC.

314 Ga.App. 699
725 S.E.2d 835
12 FCDR 995

AIKEN DERMATOLOGY & SKIN CANCER CLINIC, P.A.
v.
DavLONG SYSTEMS, INC.

No. A11A2310.

Court of Appeals of Georgia.

March 9, 2012.

[725 S.E.2d 837]

Richard H. Middleton Jr., Savannah, for appellant.

Friend, Hudak & Harris, Michael S. Reeves, Benjamin M. Byrd, Atlanta, for appellee.

ADAMS, Judge.

[314 Ga.App. 699]Appellant/plaintiff Aiken Dermatology & Skin Cancer Clinic, P.A., has filed four essentially identical complaints against defendant/ appellee DavLong Systems, Inc. seeking to recover for breach of contract and fraud. The first complaint (hereinafter referred to as Case One) was filed on March 14, 2002 and was dismissed without prejudice by Aiken Dermatology on March 18, 2003. Aiken Dermatology filed a substantially identical complaint (Case Two) against DavLong on March 25, 2003. On February 4, 2005, the trial court denied DavLong's motion for summary judgment on the breach of warranty claim, but granted DavLong summary judgment on the fraud claim. Although Aiken Dermatology had the right to file a direct appeal from that order pursuant to OCGA § 9–11–56(h), it instead sought a certificate of immediate review, which the trial court issued, and then filed an application for interlocutory appeal in this Court, which this Court granted on March 3, 2005. Aiken Dermatology filed its notice of appeal on March 3, 2005 and DavLong filed a cross-appeal on March 8, 2005.

[314 Ga.App. 700]On July 6, 2005, the clerk of the lower court sent Aiken Dermatology's counsel a statement of costs for preparation of the appellate record via certified mail. However, costs were not paid, and DavLong filed a motion to dismiss the appeal based on failure to pay costs on September 12, 2006. On January 8, 2007, the clerk sent plaintiff's attorney another request for payment of the appeal costs. No other entries were made on the docket until March 1, 2010, when a docket entry indicates Case Two was dismissed under the five-year rule. OCGA § 9–11–41(e).

On May 6, 2010, Aiken Dermatology filed a substantially similar complaint, which included a count based on fraud, against DavLong and its successor in interest, David H. Long (Case Three). However, at the time it filed Case Three, Aiken Dermatology had not paid the costs associated with Case Two, ¹ and DavLong filed a motion to dismiss Case Three on or about June 9, 2010. On August 4, 2010, while Case Three was pending, Aiken Dermatology paid the costs associated with Case Two, and a few minutes later filed another renewal action (Case Four).

On August 31, 2010, DavLong filed a motion to dismiss Case Four, arguing that Case Four violated OCGA § 9–2–5, which prohibits the prosecution of simultaneous actions (see also OCGA § 9–2–44), and that Aiken Dermatology had impermissibly filed two renewal actions (Case Three and Case Four), outside the applicable statute of limitation. See OCGA § 9–2–61.

Approximately five months later, on January 3, 2011, the trial court apparently issued an order ² dismissing Case Three based on plaintiff's failure to pay the costs associated with Case Two. On April 29, 2011, the trial court issued the order that is the subject of the present appeal, rejecting DavLong's claim that Aiken Dermatology had violated OCGA § 9–2–5 by prosecuting simultaneous actions, but nevertheless dismissing Case Four on the basis that Case Four was not a valid renewal action, reasoning that Aiken Dermatology's attempted filing of one renewal action outside the statute of limitation (Case Three) prevented the filing of another renewal action (Case Four) outside the statute of limitation. Further, the trial court found that its previous grant of summary

[725 S.E.2d 838]

judgment on Aiken Dermatology's fraud claim was res judicata as to that cause of action. Aiken Dermatology appeals, arguing that the trial court erred by finding that Case Three constituted an exercise of its one-time privilege of renewal under OCGA § 9–2–61(a) and additionally erred [314 Ga.App. 701]by finding its claim for fraud was barred by the doctrine of res judicata.

1. We first consider whether the trial court properly dismissed Case Four because it fell, as the trial court held, outside the “penumbra of the renewal statute.” Our analysis begins with the relevant statutory provisions. Pursuant to OCGA § 9–2–61(a):

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9–11–41; 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.

(Emphasis supplied)

Further, OCGA § 9–11–41(d) provides that “[i]f a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.”

As to the relevant facts, the record shows that Case Three and Case Four were filed outside the applicable limitations period for contract claims, that both were filed within six months of the dismissal of Case Two, and that the costs associated with Case Two were not paid prior to the filing of Case Three but were paid minutes before the filing of Case Four. Further, there is no question that both Case Three and Case Four were attempts to file renewal actions of Case Two. Thus, while acknowledging that Case Three was not a valid, pending suit, the trial court reasoned the language of the statute which provides that a party is permitted to exercise the privilege of renewal only once means that the party is permitted to attempt to renew only once, and having failed in that attempt by not filing a valid cause of action when it filed Case Three, Aiken Dermatology was not permitted to file another renewal action.

Aiken Dermatology challenges this ruling, arguing that the trial court has impermissibly read the word “attempt” into the statute, which contains no such language. We are constrained to agree. As [314 Ga.App. 702]cases from both this Court and our Supreme Court have made clear,

OCGA § 9–11–41(d) ... requires court costs to be paid in the first suit before an action is recommenced. This is “a...