Stevens v. Faa's Florist, Inc.

• Decision Date: 02 December 1983
• Docket Number: No. 67175,67175
• Citation: 311 S.E.2d 856,169 Ga.App. 189
• Parties: , Blue Sky L. Rep. P 71,935 STEVENS v. FAA'S FLORIST, INC. et al.
• Court: Georgia Court of Appeals

Page 856

311 S.E.2d 856

169 Ga.App. 189, Blue Sky L. Rep. P 71,935

STEVENS v. FAA'S FLORIST, INC. et al.

No. 67175.

Court of Appeals of Georgia.

Dec. 2, 1983.

Harry W. Krumenauer, Marietta, for appellant.

Carol E. Lee, Atlanta, for appellees.

BIRDSONG, Judge.

This appeal arises from the trial court's grant of appellee's motion to dismiss this action based on fraud arising out of the sale of securities. The dismissal was premised on the alleged applicable statutes of limitation, OCGA §§ 10-5-14(c) (Code Ann. § 97-114), 9-3-26 (Code Ann. § 3-711). Appellant's sole enumeration of error relates to the court's determination that the action was barred by any applicable statute of limitation.

The facts relevant to the single issue on appeal are undisputed. The complaint was filed on June 15, 1982, and arose from appellees' alleged actions that occurred in 1975. Appellant initially filed suit against appellees in 1976. That suit was automatically dismissed on November 29, 1981, by virtue of the five year rule. OCGA § 9-11-41(e) (Code Ann. § 81A-141). Consequently, this renewed action was not filed until six and one-half months after the automatic dismissal of the prior action. Held:

An action automatically dismissed pursuant to OCGA § 9-11-41(e) (Code Ann. § 81A-141) may be refiled pursuant to OCGA § 9-2-61(a) (Code Ann. § 3-808) within six months of the date of the automatic dismissal. Allstate Ins. Co. v. Dobbs, 134 Ga.App. 225, 213 S.E.2d 915. However, a plaintiff may not avail himself of the provisions of OCGA § 9-2-61(a) (Code Ann. § 3-808) unless the renewed action is commenced within six months of the dismissal of the former action. Milam v. Mojonnier Bros. Co., 135 Ga.App. 208, 217 S.E.2d 355. Appellant has admittedly failed to comply with the six month grace period.

Appellant's only challenge to the trial court's judgment is based upon the contention, rejected in Rakestraw v. Berenson, 153 Ga.App. 513, 266 S.E.2d 249, that the applicable statutes of limitation are literally tolled during the pendency of a lawsuit. As Rakestraw clearly delineates, the effect of the renewal statute is merely to treat a properly renewed action (i.e., an action reviewed within six months of dismissal of the previous action) as standing "upon the same footing, as to limitation, with the original case." OCGA § 9-2-61(a) (Code Ann. § 3-808). We are convinced that Rakestraw properly sets forth the law on this issue and should not be overruled. Nothing contained in either Lamb v. Howard, 150 Ga. 12, 102 S.E. 436 or Atlanta, etc. R. Co. v. Wilson, 119 Ga. 781, 47 S.E. 366, both cited by appellant, contradicts Rakestraw. As was noted by the Supreme Court in Lamb v. Howard, supra, 150 Ga. p. 19, 102 S.E. 436, any "tolling"...