Cale v. Jones
| Decision Date | 18 November 1985 |
| Docket Number | No. 71264,71264 |
| Citation | 338 S.E.2d 68,176 Ga.App. 865 |
| Parties | CALE v. JONES. |
| Court | Georgia Court of Appeals |
Jon W. McClure, for appellant.
William S. Goodman, Richard G. Farnsworth, Atlanta, for appellee.
Statute of Limitations--Renewal Statute--Grant of New Trial. The facts of this convoluted case reflect that Cale sued his wife in Forsyth County for divorce in 1978. Cale was represented by Jones in that action. Apparently Cale was dissatisfied with the results of the divorce case and the reasonableness of the attorney fees claimed by Jones came into dispute. In October 1978, Jones served a bill for legal representation upon Cale for $5,571.01. Cale declined to pay that amount. On November 9, 1978, Jones sued Cale in Fulton County for the unpaid legal fee. Being unable to find Cale in Fulton County (apparently Cale no longer resides in Fulton County), Jones dismissed his suit for attorney fees without prejudice. On September 19, 1981, Cale filed a malpractice suit against Jones in DeKalb County. Jones answered that complaint and filed a counterclaim seeking the unpaid attorney fees. Summary judgment was awarded Jones as to Cale's malpractice suit and that grant of summary judgment was affirmed by this court. Cale v. Jones, 162 Ga.App. 257, 290 S.E.2d 154. The grant of summary judgment as to the malpractice suit left pending the counterclaim for attorney fees. Because of a witness problem, Jones dismissed that suit without prejudice in March 1983. Within six months, on June 24, 1983, Jones refiled the counterclaim (as an original complaint) in Coweta County. After a jury trial returned a verdict for Cale on June 7, 1984, Jones unsuccessfully moved for a judgment NOV but successfully for a new trial. On retrial, a jury returned a verdict for Jones in the amount of $6,393. It is this final result that forms the basis for this appeal by Cale. Cale enumerates eight asserted errors which however may be reduced to four. Held:
1. The first two enumerations of error deal with the failure to dismiss the action filed by Jones as being barred by the statute of limitations. In its simplest terms, Cale's argument is that the bill for services was filed in October 1978, and the present suit was not filed until June 24, 1983, almost five years later. The parties do not dispute that the applicable statute of limitations is four years. Thus unless Jones' reliance upon OCGA § 9-2-61 is well placed, Cale's argument must prevail.
OCGA § 9-2-61 provides in substance that a plaintiff may renew a timely filed suit which would otherwise be barred by the statute of limitations at the time of renewal if he dismisses the case not more than once and renews it within six months of the dismissal. In such a situation the refiling stands on the same footing as the case originally filed.
An analysis of the filings utilized by Jones shows he filed a case for attorney fees in Fulton County in November, 1978. That case was dismissed without prejudice in December, 1978. It is clear from the record in the instant case that the Fulton County filing of November, 1978, has remained dormant since its dismissal and is not involved in this litigation. The next filing by Jones for attorney fees was in the form of a counterclaim to a suit filed by Cale in September, 1981. Conceding a four-year statute of limitations, it is manifest that the counterclaim for attorney fees filed in 1981 was well within the four-year period permitted by the statute of limitations. When Cale's malpractice suit was terminated by grant of summary judgment, the only suit remaining in DeKalb County between these two parties was the claim for attorney fees filed by Jones in October, 1983. There is no dispute this counterclaim was not barred by the statute of limitations.
When Jones dismissed this counterclaim (for the first and only time) in March 1983 from the DeKalb County court, the statute of limitations had already run except as it might have been tolled by the renewal statute. As indicated hereinabove, Jones renewed his claim for attorney fees in Coweta County in June 1983, a period of only three months after the dismissal. After filing this renewed complaint, Jones expressly established in the record that the suit was a renewal and continuation of the counterclaim filed in DeKalb County in October 1981.
Cale seeks to avoid the consequences of the renewal statute by arguing that it does not apply to the renewal of a counterclaim but only as to a renewal of an original lawsuit.
We are unable to agree with this reasoning. The renewal statute gives the right of renewal to a "plaintiff" who renews as provided by the statute. Even in a counterclaim, the counterclaimant is the "plaintiff" saddled with the burden of establishing his right of recovery by a preponderance of the evidence. Though he may be a "defendant" in the case-in-chief, he is the plaintiff in his own right as the counterclaimant. See Standridge v. Standridge, 224 Ga. 102, 103(2), 160 S.E.2d 377. We find no error in the trial court's conclusion that the renewal of the counterclaim within a six-month period alleviated the impediment of the statute of limitations. We find no merit in the first two enumerations of error.
2. Cale argues in his third enumeration of error the trial court improperly granted a new trial based upon a finding that the verdict was decidedly against the weight of the evidence. Such an enumeration has no merit. We note in the first instance that in the grant of a...
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Whitley v. Gwinnett County
...is well established that a charge is proper if there is any evidence, however slight, on which to predicate it. Cale v. Jones, 176 Ga.App. 865, 868(4) (338 SE2d 68) (1985)." Beal v. Braunecker, 185 Ga.App. 429, 433(4), 364 S.E.2d 308. In the case sub judice, the evidence reveals that, after......
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Beal v. Braunecker, 74879
...It is well established that a charge is proper if there is any evidence, however slight, on which to predicate it. Cale v. Jones, 176 Ga.App. 865, 868(4), 338 S.E.2d 68 (1985). In view of the evidence set forth in Division 3, there was no error in the giving of the charges of which complain......
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In re Pennsylvania Footwear Corp.
...one case, from yet another jurisdiction, supporting its position that counterclaims are within the scope of § 5535(a), Cale v. Jones, 176 Ga.App. 865, 338 S.E.2d 68 (1985). This case tends to support the same conclusion, and the Movant has not cited, nor have we located, a case holding to t......
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