Patterson v. Douglas Women's Center, P.C.
| Decision Date | 12 January 1989 |
| Docket Number | No. 46241,46241 |
| Citation | 258 Ga. 803,374 S.E.2d 737 |
| Parties | PATTERSON v. DOUGLAS WOMEN'S CENTER, P.C., et al. |
| Court | Georgia Supreme Court |
J. Stephen Manko, Walker & Manko, Marietta, Reuben M. Word, Carrollton, for Marylin Patterson.
Sidney F. Wheeler, Earl W. Gunn, Suzanne M. Trexler, Long, Weinberg, Ansley & Wheeler, Atlanta, Glenn E. Kushel, for Douglas Women's Center, P.C., et al.
Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Richard L. Greene, James E. Butler, Jr., Thomas W. Bennett, Thomas Wm. Malone, Robert H. Benfield, Jr., Kathleen Kessler, amici curiae.
1. Patterson filed suit in August, 1987, alleging medical malpractice. No expert's affidavit was filed contemporaneously with the action as required by OCGA § 9-11-9.1, although Patterson asserted in the complaint that a physician's affidavit was attached. After the statute of limitations had expired, the defendants moved to dismiss for failure to file the affidavit. Patterson then dismissed the action voluntarily and refiled it three months later. The trial court granted the defendants' motion for summary judgment, holding that the failure to comply with OCGA § 9-11-9.1 rendered the action void and incapable of renewal under OCGA § 9-2-61(a). 1
2. OCGA § 9-2-61(a) provides for the renewal of actions within six months of their dismissal:
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, if permitted by the federal rules of civil procedure, in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later; 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.
3. We have held that this statute is remedial and is to be construed liberally. The "privilege" of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable. See generally Cutliffe v. Pryse, 187 Ga. 51, 54, 200 S.E. 124 (1938); Keramidas v. Dept. of Human Resources, 147 Ga.App. 820, 821, 250 S.E.2d 560 (1978).
4. We have delineated several deficiencies that render an action void, including actions that were filed and not served, Acree v. Knab, 180 Ga.App. 174, 348 S.E.2d 716 (1986); and actions in which the court lacks subject-matter jurisdiction. 2 Keramidas v. Dept. of Human Resources, 147 Ga.App. at 821, 250 S.E.2d 560. Our courts have held that actions in which venue was improper are not void, Fowler v. Aetna Casualty & Surety Co., 159 Ga.App. 190, 283 S.E.2d 69 (1981); and that, on renewal, a plaintiff may make additional allegations or contentions. Hornsby v. Hancock, 165 Ga.App. 543, 301 S.E.2d 900 (1983). We do not construe the failure to file the required affidavit contemporaneously with the complaint as a failure that would render the complaint void ab initio.
Hence, the defendants' motion for summary judgment should have been denied.
JUDGMENT REVERSED.
All the Justices concur, except MARSHALL, C.J., who dissents.
1 Note that in Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988), we stated: "Had the...
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...does not apply to cases decided on their merits or to void cases, "but does allow renewal if the previous action was merely voidable." Id. at 804(3), 374 S.E.2d 737. This is still the law of renewal.9 Importantly, the court then held that the failure to file the required affidavit contempor......
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