Prison Health Services, Inc. v. Mitchell, A02A0803.

• Decision Date: 21 June 2002
• Docket Number: No. A02A0803.,A02A0803.
• Citation: 256 Ga. App. 537,568 S.E.2d 741
• Parties: PRISON HEALTH SERVICES, INC. v. MITCHELL et al.
• Court: Georgia Court of Appeals

568 S.E.2d 741

256 Ga. App. 537

PRISON HEALTH SERVICES, INC. v. MITCHELL et al.

No. A02A0803.

Court of Appeals of Georgia.

June 21, 2002.

Reconsideration Denied July 16, 2002.

Kent, Sigman & Bogle, A. Martin Kent, Suzanne R. Bogle, Quillian, Loncon & Edwards, Abda L. Quillian, Savannah, for appellant.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, Albert E. Clark, Savannah, for appellees.

POPE, Presiding Judge.

The sole issue in this case is whether a plaintiff can file a renewal action in a Georgia court under OCGA § 9-2-61 within six months following the dismissal of claims in a prior federal action, without first paying the litigation expenses submitted by a defendant in a bill of costs to the federal district court. We hold that the payment of such expenses is not a prerequisite to the filing of a renewal action in this state.

The litigation in this case arose after Alfonso Roberson died in October 1997 while in custody at the Chatham County jail. His parents, Nash Mitchell and Lorraine Roberson, brought suit in federal court against Chatham County, the Chatham County Sheriff's Department, Prison Health Services, Inc. ("PHS") and others. The lawsuit alleged federal claims under 42 USC § 1983 and the U.S. Constitution, as well as various state law claims.

The district court granted summary judgment to the defendants as to all federal claims and dismissed the state law claims "without prejudice because § 1367(d) has tolled any applicable state statutes of limitations." See 28 USC § 1367(d). The parents filed a notice of appeal from the order of summary judgment on the federal claims, but did not appeal the dismissal of the state law claims.

The defendants subsequently submitted a bill of costs pursuant to 28 USC § 1920, which allows the prevailing party to recover certain costs of litigation.¹ Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that "costs other than attorney[ ] fees shall be allowed as of course to the prevailing party unless the court otherwise directs." The bill of costs in this case sought reimbursement for court reporter fees, witness fees and copying costs in the amount of $6,955.70. The record demonstrates that there were no outstanding costs owed to the district court itself. The costs submitted by the defendants were taxed by the district court on October 1, 1999, and on October 6, 1999, the parents' counsel remitted the full amount due under the bill in a check made payable to the clerk of the district court.

On December 17, 1999, after the applicable limitation period had expired, the parents filed a renewal action in the State Court of Chatham County, reasserting the state claims dismissed by the federal court. Several months later, the Eleventh Circuit Court of Appeals affirmed the district court's opinion, and PHS submitted an additional bill of costs to the Eleventh Circuit in the amount of $61.05.

PHS subsequently filed a motion for summary judgment asserting that the parents' claims were barred by the applicable statute of limitation. PHS argued that the parents could not avail themselves of the renewal statute because they had failed to pay costs in the federal action. In particular, PHS noted that the parents had erroneously paid the costs taxed in district court to the court clerk, instead of to the defendants, and had failed to pay the costs taxed by the appellate court. While this motion was pending, the parents tendered to PHS's attorney a check in the amount of $7,016.75 to cover all costs arising in the federal litigation.

The trial court denied summary judgment, finding "that there are genuine issues of material fact regarding whether Plaintiffs made a good faith attempt to pay the court costs that Plaintiffs knew about prior to filing this action." At PHS's request, the trial court certified this issue for immediate review, and we granted the application for interlocutory appeal.

Subsection (a) of Georgia's renewal statute provides:

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 in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41.

OCGA § 9-2-61(a). OCGA § 9-11-41(d) requires that before filing a previously dismissed action, a plaintiff must pay the court costs in the first suit. And Georgia courts have interpreted this requirement to be "`a condition precedent to filing a second suit,' so that `payment of costs in a previous suit is jurisdictional' with respect to a subsequent suit. Little v. Walker, 250 Ga. 854, 855, 301 S.E.2d 639 (1983)." Jeff Davis Hosp. Auth. v. Altman, 203 Ga.App. 168, 416 S.E.2d 763 (1992). A plaintiff, however, may avoid this requirement where he demonstrates that the costs were unknown to him after a good faith effort to ascertain them, and further shows that any subsequently discovered costs were paid within a reasonable time. Butler v. Bolton Road Partners, 222 Ga.App. 791, 793(2), 476 S.E.2d 265 (1996); Daugherty v. Norville Indus., 174 Ga.App. 89, 91, 329 S.E.2d 202 (1985).

We must determine, therefore, whether the definition of court costs under OCGA § 9-11-41(d) includes the witness fees, court reporting fees and copying expenses that a prevailing party in a federal action is allowed to recover. We conclude that it does not. There is no provision under Georgia law parallel to 28 USC § 1920 allowing...