Bertone v. Wilkinson, A94A0267
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | Steven M. Youngelson; POPE; McMURRAY, P.J., and SMITH |
| Citation | 444 S.E.2d 576,213 Ga.App. 255 |
| Parties | BERTONE v. WILKINSON. |
| Docket Number | No. A94A0267,A94A0267 |
| Decision Date | 11 April 1994 |
Page 576
v.
WILKINSON.
Reconsideration Denied May 18, 1994.
Certiorari Denied Sept. 8, 1994.
Page 577
[213 Ga.App. 257] Steven M. Youngelson, J. Andrew Ziolo, Atlanta, for appellant.
Bovis, Kyle & Burch, Charles M. McDaniel, Jr., Atlanta, for appellee.
[213 Ga.App. 255] POPE, Chief Judge.
This appeal concerns whether the trial court correctly held that OCGA § 9-2-61 is not applicable to third-party complaints and correctly dismissed plaintiff Lewis Bertone's complaint filed against defendant Rick Wilkinson, which was filed within six months after Bertone dismissed his third-party complaint against Wilkinson in a separate but related suit. In this action, Bertone seeks damages for personal injuries he allegedly suffered when, after an altercation between Bertone and Wilkinson's friend (the plaintiff in the original action) had subsided, Wilkinson attacked and injured Bertone. It is undisputed that Bertone's third-party action was timely filed, but that Bertone's complaint seeking damages for personal injuries against [213 Ga.App. 256] Wilkinson is only timely if it is subject to the renewal provisions set forth in OCGA § 9-2-61.
We do not agree with the trial court's holding that a dismissed third-party complaint may never be renewed. OCGA § 9-2-61(a) allows a "plaintiff" to renew his case after dismissal without prejudice. Certainly a defendant who filed a third-party complaint is a "plaintiff" for purposes of that third-party action as much as a defendant who filed a counterclaim is a "plaintiff" for purposes of the counterclaim. See Cale v. Jones, 176 Ga.App. 865(1), 338 S.E.2d 68 (1985) (holding counterclaims are subject to renewal). Indeed, our legislature has evidenced their intent that third-party actions should be subject to the renewal statute by specifically providing in OCGA § 9-11-41(c) that third-party claims are subject to that statute, which provides for dismissals of actions and their recommencement within six months. Moreover, the trial court's order is erroneous to the extent it suggests that a different style of the case means it is not the renewal of the same cause of action. That reasoning has been rejected by our Supreme Court which held: "If the cause of action is the same in both cases; if by the same party or his legal representative, and against a person from whom relief was prayed in the first suit, the second...
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CNL Ins. America v. Moreland, No. A96A1961
...213 (1996) (appellate court cannot consider facts which do not appear in the record sent from the trial court); Bertone v. Wilkinson, 213 Ga.App. 255, 257, 444 S.E.2d 576 (1994) (court cannot consider pleading attached to brief); Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga.App. 235, 23......
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Cushing v. Cohen, Nos. A13A0736
...liability cannot be enlarged in a renewal action, the renewal action need not be identical to the first one. Bertone v. Wilkinson, 213 Ga.App. 255, 256, 444 S.E.2d 576 (1994). The trial court found that the claims in this renewed action were sufficiently similar to the original claims so th......
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Burns v. Dees, No. A01A1104.
...330(5), 514 S.E.2d 669 (1999). 22. Heyde v. Xtraman, Inc., 199 Ga.App. 303, 305(1), 404 S.E.2d 607 (1991). 23. Bertone v. Wilkinson, 213 Ga.App. 255, 256, 444 S.E.2d 576 24. Alfred v. Right Stuff Food Stores, 241 Ga.App. 338, 339(2), 525 S.E.2d 717 (1999). 25. Young v. Rider, 208 Ga.App. 14......
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Soley v. Dodson, No. A02A0448.
...13. (Punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga.App. 594, 597, 370 S.E.2d 843 (1988). 14. See Bertone v. Wilkinson, 213 Ga.App. 255, 444 S.E.2d 576 15. McCoy Enterprises v. Vaughn, 154 Ga.App. 471, 472, 268 S.E.2d 764 (1980). 16. (Punctuation omitted.) Wagner v. Casey, 169 ......
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CNL Ins. America v. Moreland, No. A96A1961
...213 (1996) (appellate court cannot consider facts which do not appear in the record sent from the trial court); Bertone v. Wilkinson, 213 Ga.App. 255, 257, 444 S.E.2d 576 (1994) (court cannot consider pleading attached to brief); Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga.App. 235, 23......
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Cushing v. Cohen, Nos. A13A0736
...liability cannot be enlarged in a renewal action, the renewal action need not be identical to the first one. Bertone v. Wilkinson, 213 Ga.App. 255, 256, 444 S.E.2d 576 (1994). The trial court found that the claims in this renewed action were sufficiently similar to the original claims so th......
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Burns v. Dees, No. A01A1104.
...330(5), 514 S.E.2d 669 (1999). 22. Heyde v. Xtraman, Inc., 199 Ga.App. 303, 305(1), 404 S.E.2d 607 (1991). 23. Bertone v. Wilkinson, 213 Ga.App. 255, 256, 444 S.E.2d 576 24. Alfred v. Right Stuff Food Stores, 241 Ga.App. 338, 339(2), 525 S.E.2d 717 (1999). 25. Young v. Rider, 208 Ga.App. 14......
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Soley v. Dodson, No. A02A0448.
...13. (Punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga.App. 594, 597, 370 S.E.2d 843 (1988). 14. See Bertone v. Wilkinson, 213 Ga.App. 255, 444 S.E.2d 576 15. McCoy Enterprises v. Vaughn, 154 Ga.App. 471, 472, 268 S.E.2d 764 (1980). 16. (Punctuation omitted.) Wagner v. Casey, 169 ......