Rakestraw v. Berenson
| Decision Date | 18 February 1980 |
| Docket Number | No. 58942,58942 |
| Citation | 266 S.E.2d 249,153 Ga.App. 513 |
| Parties | RAKESTRAW v. BERENSON. |
| Court | Georgia Court of Appeals |
Eugene R. Kiser, Atlanta, for appellant.
Daryll Love, Atlanta, for appellee.
Medical malpractice wrongful death. The appellant Mr. Rakestraw, plaintiff below, brought suit against Dr. Berenson, appellee, asserting that through the negligent performance of the medical arts, Dr. Berenson caused the death of appellant's wife, Mrs. Rakestraw. The complaint alleges that the negligent acts occurred in August, 1974. Rakestraw originally brought his complaint in April, 1975. on May 24, 1977, the plaintiff caused the trial court to dismiss the complaint without prejudice. The suit was reinstituted by the plaintiff Mr. Rakestraw on April 16, 1978, almost eleven months after the suit was dismissed without prejudice and almost four years after the asserted tortious conduct. Dr. Berenson moved for dismissal based upon the running of the statute of limitation as a bar to the litigation. This motion was granted and forms the basis of this appeal. Held :
Relying primarily on certain ambiguous language in Collins v. Franklin, 133 Ga.App. 770, 771, 213 S.E.2d 4, Mr. Rakestraw argues that the statute of limitation (a period of two years for tortious conduct (Code Ann. § 3-1004 and Code Ann. § 3-1102)) was tolled while his suit was pending from April, 1975 until May, 1977. The argument continues that because the original suit was brought within eight months of the injury, there remained sixteen months within which to reinstate the complaint without encountering the bar of the statute of limitation. Thus, because the suit was reinstated eleven months after it was voluntarily dismissed, Rakestraw argues that the trial court erred in dismissing the suit as being barred by the statute.
We consider this argument ingenious but incorrect. The contention involves an unwarranted tolling of the statute of limitation. The statute of limitation begins to run on the date of the tortious conduct. It continues to run until its running effects a bar to any action based upon that misconduct. Logically, if a complaint is filed within the time allotted by statute (in this case two years), any limitation on the action is thrust into a legal limbo, in that the statute continues to run but has no tolling effect upon the pending action. See Moore v. Tootle, 134 Ga.App. 232, 233, 214 S.E.2d 184. Thus so long as the case is pending the statute of limitation has no tolling effect.
Code Ann. § 3-808 (the renewal statute) however, recognizes that for one reason or another it may be imperative for a plaintiff litigant to remove his suit in order to perfect his pleading, either to add parties, move to another jurisdiction, or for other good legal reason. The necessity for that removal may not become apparent until after the statutory time allotted for the particular type of legal action has elapsed. In order to protect the right of action, Code § 3-808 allows a voluntary dismissal of the action after the statutory time has run, provided the refiling is within a six-month period following the dismissal. The same reasoning applies if the plaintiff is nonsuited after the running of the statutory period but refiled within the six months granted by Code § 3-808. However, the right of renewal comes into play only if the case would otherwise be barred by the statute of limitation. Powell v. Fidelity, etc., Co., 48 Ga.App. 529(3), 173 S.E. 196. See Hackney v. Asbury & Co., 124 Ga. 678, 52 S.E. 886; Floyd & Lee v. Boyd, 16 Ga.App. 43(4), 84 S.E. 494.
Appellant's argument that the second filing related back and placed his suit into the same status as the first is without merit. That favorable position applies only where the second filing is within the original period of limitation or within the six additional months granted by Code § 3-808 and where the original suit is nonsuited or voluntarily dismissed after the period of limitation has expired. Moore v. Tootle, supra, p. 234, 214 S.E.2d 184.
In Collins v. Franklin, supra, at p. 771, 213 S.E.2d at p. 5, this court held: ...
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Goodwyn v. Carter
...of limitation, which would otherwise apply. Brooks v. Douglas, 154 Ga.App. 54, 55-56(1), 267 S.E.2d 495 (1980); Rakestraw v. Berenson, 153 Ga.App. 513, 515, 266 S.E.2d 249 (1980). In this case, plaintiff did not refile but sought to revive or renew the existing action outside of the time pe......
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...the limitation period is not tolled merely because a lawsuit is filed and pending in the trial court. Rakestraw v. Berenson, 153 Ga. App. 513, 514-515, 266 S.E.2d 249 (1980); Stevens v. FAA's Florist, 169 Ga.App. 189, 190, 311 S.E.2d 856 (1983). Applying these principles, we find that Fulle......
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