Archie v. Scott

• Decision Date: 01 February 1989
• Docket Number: No. 77612,77612
• Citation: 378 S.E.2d 182,190 Ga.App. 145
• Parties: ARCHIE v. SCOTT et al.
• Court: Georgia Court of Appeals

Page 182

378 S.E.2d 182

190 Ga.App. 145

ARCHIE v. SCOTT et al.

No. 77612.

Court of Appeals of Georgia.

Feb. 1, 1989.

Repasky, Minin & Bates, Alexander J. Repasky, Michael R. Goldberg, Atlanta, for appellant.

Stephen M. Forte, Michael G. Frick, Jennie E. Rogers, Atlanta, for appellees.

CARLEY, Chief Judge.

On May 29, 1986, appellant-plaintiff filed a medical malpractice action against appellee-defendants. Appellees answered, denying the material allegations of the complaint, and they subsequently filed a motion for summary judgment. However, appellant voluntarily dismissed his complaint without prejudice on January 30, 1987.

On July 21, 1987, appellant refiled his complaint and, because the statute of limitations had run, he invoked the renewal provisions of OCGA § 9-2-61. In the interim between the voluntary dismissal of appellant's original action and the commencement of his renewal action, the General Assembly enacted OCGA § 9-11-9.1, which had become effective on July 1, 1987. Because the six-month renewal period would expire within ten days of the refiling of the action and because he had alleged in his refiled complaint that the affidavit of an expert could not be obtained due to time restraints, appellant was afforded an additional 45-days within which to supplement his pleadings with the requisite affidavit. See OCGA § 9-11-9.1(b). Upon determining that he would not be able to obtain an affidavit within that 45-day period, appellant filed a motion for an extension of time. See OCGA § 9-11-9.1(b). The trial court denied appellant's motion for an extension. After the expiration of the 45-day period, appellees filed motions to dismiss based upon appellant's failure to comply with OCGA § 9-11-9.1(b). After conducting a hearing, the trial court granted appellees' motions. Appellant appeals from the order dismissing his action for the failure to comply with the requirements of OCGA § 9-11-9.1.

1. In several enumerations, appellant attacks the constitutionality of OCGA § 9-11-9.1. "A constitutional question is within [the Supreme] [C]ourt's jurisdiction if it involves ... an attack upon the constitutionality of some law of this state.... [Cit.]" Zepp v. Mayor & Council of Athens, 255 Ga. 449, 451(2), 339 S.E.2d 576 (1986). However, "[i]t clearly is the law of this state that the Supreme Court is not required to and 'will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge. [Cits.]' [Cits.]" Philyaw v. Fulton Nat. Bank, 139 Ga.App. 28, 29(1), 227 S.E.2d 811 (1976). Accordingly, it is only if the constitutionality of OCGA § 9-11-9.1 was challenged in the trial court that it would be proper to transfer this case to the Supreme Court. A review of the record shows that no such challenge was made in this case. Therefore, the enumerations which attack the constitutionality of the statute present nothing for review by any appellate court and jurisdiction over the remaining enumerations of error is in this court.

2. Appellant enumerates the trial court's order as erroneous for the reason that OCGA § 9-11-9.1 is not applicable to this case. He urges that a renewal action is but a continuance of the original action and, thus, is to be governed by the procedural rules which were in effect at the time that the original action was filed.

It is clear, however, that "an action renewed pursuant to OCGA § 9-2-61(a) is an action de novo," not a continuance of the original action. (Emphasis in original.) Adams v. Gluckman, 183 Ga.App. 666(1), 359 S.E.2d 710 (1987). "The same cause may be renewed, recommenced, or brought over, but is in effect de novo, except that the statute of limitation does not run, provided it is brought within six months from the time of the dismissal. [Cit.]" (Emphasis in original.) Hornsby v. Hancock, 165 Ga.App. 543, 544, 301 S.E.2d 900 (1983). See also Stevens v. FAA's Florist, 169 Ga.App. 189, 311 S.E.2d 856 (1983). Accordingly, a renewal action is governed by those procedural rules which are in effect at the time that it is filed. See generally St. Joseph's Hosp. v. Nease, 189 Ga.App. 239, 375 S.E.2d 241 (1988). " ' "No person can claim a vested right in any particular mode of procedure for the enforcement or defen[s]e of his rights...." ' " Hart v. Owens-Ill., 161 Ga.App. 831, 834, 289 S.E.2d 544 (1982). See also Berry v. Siskin, 128 Ga.App. 3(2), 195 S.E.2d 255 (1973). Compare Polito v. Holland, 258 Ga. 54(3), 365 S.E.2d 273 (1988). It follows that OCGA § 9-11-9.1 is the applicable procedure which governs the instant renewal action and that the trial court did not err in so holding.

3. Appellant enumerates as an erroneous abuse of discretion the trial court's refusal to grant his motion for an extension of time within which to file the requisite affidavit.

OCGA § 9-11-9.1(b) provides, in pertinent part, that "[t]he trial court may,...