White v. KFC Nat. Management Co.

Decision Date30 October 1997
Docket NumberNo. A97A1852,A97A1852
Citation493 S.E.2d 244,229 Ga.App. 73
Parties, 97 FCDR 4039 WHITE v. KFC NATIONAL MANAGEMENT COMPANY.
CourtGeorgia Court of Appeals

Divida Gude, Atlanta, for appellant.

Fain, Major & Wiley, John K. Miles, Jr., Kim M. Jackson, Atlanta, for appellee.

JOHNSON, Judge.

Regina White was hospitalized after consuming KFC National Management Company's chicken on June 23, 1991. On March 9, 1992, White filed a lawsuit against KFC, alleging KFC was negligent in selling unwholesome, rancid food and that this negligence proximately caused her illness and subsequent damages. White's first lawsuit was dismissed by the trial court for want of prosecution on January 6, 1995.

White refiled her case on January 19, 1995. White admits this refiling was outside the statute of limitation period and in accordance with the provision of the renewal statute. On November 6, 1995, White voluntarily dismissed her action without prejudice, admittedly outside the statute of limitation period.

White refiled her case on May 3, 1996, within six months of the dismissal. KFC filed a motion to dismiss the refiled action based on the statute of limitation. The trial court granted KFC's motion, and White appeals. We affirm.

1. White asserts that OCGA § 9-2-61(a) is unconstitutional because it failed to provide her fair notice that the trial court's dismissal would be treated as a dismissal for purposes of employing the renewal statute. This enumeration raises the issue of our jurisdiction to consider this appeal and whether this appeal must be transferred to the Supreme Court since sole jurisdiction to consider a challenge to the constitutionality of a statute rests in the Supreme Court. See the Constitution of the State of Georgia, Art. VI, Sec. VI, Par. II(1). However, since the trial court did not rule on the constitutionality of OCGA § 9-2-61(a), and since we may not address issues on appeal which were not addressed by the trial court, no question as to the constitutionality of OCGA § 9-2-61(a) has been preserved for appellate review, and this court has jurisdiction of the appeal. See Dye v. State, 205 Ga.App. 781(1), 423 S.E.2d 713 (1992).

2. In her remaining enumeration of error, White contends the trial court erred in counting her January 19, 1995 refiling as a result of the trial court's dismissal as her one renewal permitted under the renewal statute. We disagree.

While OCGA § 9-11-41(a) permits a plaintiff to dismiss her action twice without prejudice, OCGA § 9-2-61(a) controls the refiling of these actions, both within and outside the statute of limitation period. OCGA § 9-2-61(a) provides as follows: "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 ... either 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 renewal shall be exercised only once."

Since it is undisputed that both the trial court's dismissal and White's voluntary dismissal occurred outside the statute of limitation period, the trial court was correct in granting KFC's motion to dismiss based on the applicable statute of limitation. See Worley v. Pierce, 211 Ga.App. 863, 864(1), 440 S.E.2d 749 (1994); Associated Writers Guild of America v. First Nat. Bank of Atlanta, 195 Ga.App. 820, 821 (2), 395 S.E.2d 23 (1990).

When White refiled her complaint on January 19, 1995, she exercised her one and only opportunity to...

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11 cases
  • FREEMAN v. CSX Transp. INC.
    • United States
    • Tennessee Court of Appeals
    • April 7, 2011
    ...refile their suit after a voluntary dismissal and outside of the statute of limitations. See, e.g., White v. KFC Nat'lMgmt. Co., 229 Ga. App. 73, 74, 493 S.E.2d 244, 245 (Ga. Ct. App. 1997) ("'[T]his privilege of renewal shall be exercised only once.'") (quoting Ga. Code Ann. § 9-2-61(a)); ......
  • Hipple v. Simpson Paper Co., No. A98A1416
    • United States
    • Georgia Court of Appeals
    • September 11, 1998
    ...280 S.E.2d 839 (1981). We may not address issues on appeal which were not addressed by the trial court. White v. KFC Nat. Mgmt. Co., 229 Ga.App. 73, 74(1), 493 S.E.2d 244 (1997); Security Mgmt. Co. v. King, 132 Ga.App. 618, 619(1)(a), 208 S.E.2d 576 3. Hipple also alleges as error the trial......
  • Torres v. Wal-Mart Stores, Inc., 1:12-cv-3844-WSD
    • United States
    • U.S. District Court — Northern District of Georgia
    • September 26, 2013
    ...or within six months after the discontinuance or dismissal, whichever is later." See O.C.G.A. § 9-2-61(a); White v. KFC Nat's Mgmt. Co., 493 S.E.2d 244, 245 (Ga. Ct. App. 1997). On this basis, the Court finds that Plaintiff's claims may not be time-barred. Plaintiff's objection is sustained......
  • Thurmon v. Clayton Cnty.
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 18, 2012
    ...want of prosecution - the case here - is deemed a voluntary dismissal for purposes of O.C.G.A. § 9-2-61(a). White v. KFC Nat'l Mgmt. Co., 493 S.E.2d 244, 246 (Ga. Ct. App. 1997). 5. The parties also do not dispute that this action was filed outside of the statute of limitations. 6. Although......
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