Sparrow v. Che, A98A0439.

• Decision Date: 13 April 1998
• Docket Number: No. A98A0439.,A98A0439.
• Citation: 501 S.E.2d 553,232 Ga. App. 184
• Parties: SPARROW et al. v. CHE.
• Court: Georgia Court of Appeals

501 S.E.2d 553

232 Ga. App. 184

SPARROW et al. v. CHE.

No. A98A0439.

Court of Appeals of Georgia.

April 13, 1998.

Champion & Holbird, Thomas R. Holbird, Jr., Atlanta, for appellants.

Allen & Associates, Robert E. Bauer, Atlanta, for appellee. ANDREWS, Chief Judge.

George and Gail Sparrow dismissed and then refiled an action against Fu Kuei Che seeking damages arising out of an automobile accident. The trial court dismissed the second action on the basis that it was barred by the applicable statute of limitation and that lack of service on Che in the first action rendered it incapable of being renewed under OCGA § 9-2-61(a) after the expiration of the limitation period. The Sparrows contend on appeal that if Che attempted to evade service in the first action, the second action should be renewable under § 9-2-61(a).

On January 12, 1996, the Sparrows filed suit against Che for personal injuries and property damages sustained in the accident which occurred on January 15, 1994. Che could not be located by the process server, and he was not served with the action. Nevertheless, on March 4, 1996, Che filed an answer to the suit in which he raised the defense that there was a lack of service of process. Thereafter, the Sparrows and Che engaged in discovery until the Sparrows voluntarily dismissed the action on September 5, 1996, pursuant to OCGA § 9-11-41(a). On October 31, 1996, the Sparrows refiled the same action against Che and served him. The second suit was filed and served on Che after the expiration of the two-year statute of limitation for personal injuries (OCGA § 9-3-33) but before the expiration of the four-year statute of limitation for property damage (OCGA § 9-3-31).

Che moved for dismissal on the basis that: (1) the Sparrows failed to file and serve the second action within the two-year personal injury limitation period, and (2) even though the second suit was filed within the six-month renewal period of OCGA § 9-2-61(a), the renewal provisions of OCGA § 9-2-61 did not apply because without service on him in the first suit, there was no valid action to renew. The trial court granted Che's motion and entered an order dismissing the Sparrows' entire suit with prejudice.

1. We find no error in the dismissal of the Sparrows' action for personal injuries. Although the Sparrows commenced their first personal injury suit within the applicable two-year limitation period, they failed to serve Che with the suit, and the limitation period expired before they voluntarily dismissed the action and refiled the second suit about two months later. Under these circumstances, the renewal provisions of OCGA § 9-2-61(a) did not protect the second suit from the bar of the statute of limitation.

OCGA § 9-2-61(a) 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 ... 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...