Petkas v. Grizzard
| Decision Date | 09 February 1984 |
| Docket Number | No. 40165,40165 |
| Citation | 312 S.E.2d 107,252 Ga. 104 |
| Parties | PETKAS v. GRIZZARD. |
| Court | Georgia Supreme Court |
Robert N. Meals, Larry H. Chesin, Meals & Parks, P.C., Atlanta, for Jim N. Petkas.
Marion Smith, II, John L. Latham, Smith, Cohen, Ringel Kohler & Martin, Atlanta, for James C. Grizzard.
We granted certiorari on the issue of whether a trial court may take judicial notice of the record in a prior suit in the same court when determining if the action before him falls within the provisions of the renewal statute, OCGA 9-2-61 (Code Ann. § 3-808). "If a plaintiff discontinues or dismisses his case and recommences the same within six months, the renewed case shall stand upon the same footing, as to limitation, with the original case." OCGA 9-2-61(a) (Code Ann. § 3-808). The Court of Appeals held that the trial court erred in failing to grant defendant Grizzard's motion to dismiss based upon the statute of limitations since the complaint did not allege it was a renewal action and neither the pleadings nor the record in the dismissed action were introduced as evidence. Grizzard v. Petkas, 167 Ga.App. 254, 305 S.E.2d 861 (1983). We reverse.
In August of 1973 Petkas, a director and stockholder of Piedmont-Lindbergh Corporation, filed an action in the Fulton Superior Court against Grizzard and others for injunctive relief and then amended to seek damages. This suit was voluntarily dismissed in November of 1978. Within the six months provided by OCGA 9-2-61 (Code Ann. § 3-808) Petkas filed the present action in Fulton Superior Court. Under the mandate of a local court rule the case was assigned to the same trial judge. Local Rule 14 provides in part:
The effect of such a rule is to prevent "judge shopping," and the promotion of judicial economy, since the case is assigned to a judge with knowledge of the case and the issues involved.
The complaint did not allege that the suit was a renewal action. Grizzard filed an answer to the complaint raising the statute of limitations as a defense and filed a motion to dismiss. In response Petkas contended that the case was a renewal of the former action but introduced no evidence in support of his contention. The trial court denied the motion based upon "the entire file of record" and OCGA 9-2-61 (Code Ann. § 3-808), concluding that the second action was a timely renewal of the former case.
Grizzard later filed a motion for more definite statement seeking an order requiring Petkas to attach a copy of the former suit to his complaint. The court's order denying the motion stated that the pre-trial order in the former case (Fulton County Civil Action No. B-86925) specifically set forth the issues to be tried and again found the present action to be "a renewal of one (B-86925) previously before the same judge, in the same court, involving substantially the same issues and parties, and to which no final judgment was rendered on the merits." The court found it unnecessary for the plaintiff to attach a copy of the prior suit.
The case proceeded to trial resulting in a jury verdict in favor of Petkas. Grizzard appealed and among other enumerations raised issues involving the failure of the trial court to dismiss based upon the statute of limitations. By order, the Court of Appeals requested the trial court to supplement the record to include what was considered by the court on the motions. In response, the record was supplemented with the former complaint and amendments, the pre-trial order, and the voluntary dismissal. The trial court entered an order directing the entire record on the former case be transmitted to the Court of Appeals to assure that the entire record before him was also before the appellate court.
The Court of Appeals held that since none of the record was attached to the complaint or introduced in evidence the trial court improperly took judicial notice of the pleadings and record of the former case. The court held that since there was no proper evidence of renewal the case must be dismissed based upon the statute of limitations.
The applicant, Petkas, contends that since a renewal action is the same case judicial notice was proper based upon State Department of Revenue v. McCray, 215 Ga. 678, 113 S.E.2d 132 (1960). That case holds that the "court may take judicial notice of its own records in the immediate case or proceedings before it, including all prior proceedings in the main case." McCray, at p. 680, 113 S.E.2d 132. Petkas also contends that the trial court's action of reviewing the record in the former case was proper, even though the record was not placed in evidence.
Grizzard contends that a renewal action does not come within the holding of McCray because the second filing is a different case, not the same case. He also relies, as did the Court of Appeals, upon Duckworth v. Collier, 164 Ga.App. 139, 296 S.E.2d 640 (1982). In Duckworth, the first suit was dismissed without prejudice. A second suit was filed and renewal was not alleged in the complaint, although under OCGA 9-2-61 (Code Ann. § 3-808) the second action was timely. The trial court directed a verdict as to that part of the complaint upon which the statute of limitations had run. In doing so he refused to allow plaintiff to introduce evidence that the second suit was in fact a renewal. The Court of Appeals affirmed the directed verdict holding that on its face the action was barred by the statute of limitations and since appellant had not perfected the record by an offer of proof of the record in the first action there was nothing in the record before the Court of Appeals to review.
Grizzard also relies on the language in Carten v. Loveless, 192 Ga. 715, 16 S.E.2d 711 (1941); Glaze v. Bogle, 105 Ga. 295, 31 S.E. 169 (1898); Nelson v. Smothers, 164 Ga.App. 112, 296 S.E.2d 414 (1982), and other cases that a court may not take judicial notice of other cases in the same court just as it cannot take judicial notice of cases in other courts. The language of Glaze v. Bogle has been cited in a number of cases including Nelson, supra. In Glaze, the trial court entered a directed verdict on a plea of res judicata before evidence had been introduced. This court reversed even though the judgment pleaded was before the same court and based upon the records of that court, holding the defendant had the burden of proving this defense. The court then quoted the language of an earlier California case that " 'In the trial of one case the court can no more take judicial notice of the record in another case in the same court, without its formal introduction in evidence, than if it were a record in another court; much less can this court take notice of a record not introduced in evidence in the court below.' " Glaze 105 Ga. at 298, 31 S.E. 169.
We note that in Flores v. Arroyo, 56 Cal.2d 492, 15 Cal.Rptr. 87, 364 P.2d 263 (1961), California judicially adopted a new rule, announcing that all prior cases would no longer be followed. The court held that a trial court could take judicial notice of the records in other cases when ruling on a plea of res judicata, providing also that the opposing party is free to contest the effect of the prior judgment.
Following Glaze this court in Redwine v. Frizzell, 186 Ga. 296, 197 S.E. 805 (1938), found no error on appeal when a trial judge announced to the parties that he would take judicial notice of his records in a former case between the parties in the same court even though no formal plea of res judicata was filed. We found no error because the parties were aware of the court's actions and the opposing party made no objection to the procedures. This waiver of objection was noted in Carten v. Loveless, 192 Ga. 715, 16 S.E.2d 711 (1941), in which we found no conflict in Redwine and Glaze. This court held in Carten that a trial court could not take...
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