ANGELITA AARON v. JEKYLL ISLAND STATE PARK AUTHORITY A/K/A JEKYLL ISLAND AUTHORITY D/B/A SUMMER WAVES WATER PARK

• Court: Court of Appeals of Georgia
• Decided: January 8, 2019
• Docket: A18A1653
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

January 3, 2019

In the Court of Appeals of Georgia A18A1653. AARON v. JEKYLL ISLAND STATE PARK AUTHORITY.

MCFADDEN, Presiding Judge.

Angelita Aaron appeals the trial court’s order dismissing her personal injury

lawsuit on statute-of-limitation grounds. Aaron argues that her lawsuit is not barred

by the statute of limitation because it is a timely renewal of an earlier filed lawsuit.

But the first lawsuit did not name the same defendant; the two lawsuits named

entirely different instrumentalities of the state: the first named the Georgia

Department of Natural Resources; the second named the Jekyll Island--State Park

Authority. So the instant lawsuit is not a valid renewal action. Accordingly the trial

court did not err by dismissing the lawsuit on statute-of-limitation grounds and we

affirm.

On September 17, 2015, days before the statute of limitation ran, see OCGA

§ 50-21-27 (c), Aaron filed a complaint for injuries she sustained on September 21,

2013, at the Summer Waves Water Park on Jekyll Island. Aaron named as the defendant, “Georgia Department of Natural Resources d/b/a Summer Waves Water

Park.” Aaron dismissed the case without prejudice in December 2015.

On June 21, 2016, Aaron filed the instant lawsuit for the same injuries. She

named as the defendant,”Jekyll Island State Park Authority, a/k/a Jekyll Island

Authority, d/b/a Summer Waves Water Park.” In the complaint she contended that her

action was a renewal action that related back to the complaint filed September 17,

2015.

The Jekyll Island--State Park Authority, which owns and operates the Summer

Waves Water Park, answered the complaint, raising a statute-of-limitation defense.

It moved to dismiss the complaint on that ground, arguing that Aaron’s complaint was

not a renewal of the previously filed complaint because it named a different

defendant. The trial court agreed and dismissed the complaint, and Aaron filed this

appeal. Because the defendant newly named in the renewal action is not substantially

identical to the one named in the original action, we agree as well.

OCGA § 9-2-61, the renewal statute, provides in pertinent part, “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

2 applicable period of limitations or within six months after the discontinuance or

dismissal, whichever is later. . ..” OCGA § 9-2-61 (a). When filing a renewal action,

[i]f the statute of limitation has not run, the plaintiff may add new parties and new claims to the refiled action; however, if the statute of limitation has expired, the plaintiff is limited to suing the same defendants under the same theories of recovery. The new petition must be substantially the same as the original as to the essential parties. The renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.

Ward v. Dodson, 256 Ga. App. 660, 661 (569 SE2d 554) (2002) (citations and

punctuation omitted) (plaintiff essentially named a different defendant when in

attempt to file renewal action, he named defendant in his official capacity while in

original suit, plaintiff named defendant in his individual capacity); See also McCoy

Enterprises v. Vaughn, 154 Ga. App. 471 (268 SE2d 764) (1980) (plaintiff could not

sue corporation in renewal action because corporation was not party to original suit

filed before running of statute of limitation, and plaintiff did not file amendment of

first complaint so as to change defendant from sole owners of corporation to

corporation).

Per force the filing of a “recommenced” action under OCGA § 9-2-61 (a)

cannot be used to amend an original action in a way not authorized under the Civil

3 Practice Act generally. Under OCGA § 9-11-15 (c), “[a]n amendment changing the

party against whom a claim is asserted relates back to the date of the original

pleadings if the foregoing provisions are satisfied, and if within the period provided

by law for commencing the action against him the party to be brought in by

amendment (1) has received such notice of the institution of the action that he will not

be prejudiced in maintaining his defense on the merits, and (2) knew or should have

known that, but for a mistake concerning the identity of the proper party, the action

would have been brought against him.” (emphasis supplied).

Under OCGA § 9-2-61 (a), “[l]ong-standing and well-settled precedent

establishes that in a renewal action the cause of action must be substantially the same

as in the original action and there must also be a substantial identity of essential

parties.” Gish v. Thomas, 302 Ga. App. 854, 861-62 (3) (691 SE2d 900) (2010)

(citations and punctuation omitted) (plaintiff who originally filed suit as

representative of estate could not renew action so as to avoid statute of limitation by

filing suit in her individual capacity). See also Sheldon & Co. v. Emory Univ., 184

Ga. 440 (1) (191 SE 497) (1937) (“The rule requiring substantial identity of essential

parties has been held not to be violated: where a party in the later case is the

successor trustee, or other representative, of an original party who occupied the same

4 position as plaintiff or defendant; or where the first suit was dismissed for nonjoinder

of one of the representatives of the estate, who is added as a party to the second suit;

or where the first suit is brought against two defendants, dismissed as to both, and

renewed as to only one; or where the difference is merely as to nominal or

unnecessary parties,” but a defendant in a representative capacity and a defendant in

an individual capacity are substantially different.) (citations omitted).

The defendants Aaron named in the two lawsuits are substantially different.

Compare OCGA § 12-2-1 (a) (“There is created a Department of Natural Resources.”)

and OCGA § 12-3-232 (a) (“There is created a body corporate and politic to be

known as the Jekyll Island--State Park Authority, which shall be deemed to be an

instrumentality of the state and a public corporation, and by that name, style, and title

such body may contract and be contracted with, sue and be sued, implead and be

impleaded, and complain and defend in all courts.”).

“The [Jekyll Island--State] Park Authority is attached to the Georgia

Department of Natural Resources for administrative purposes only. OCGA §

12-3-232 (b).” Fouche v. Jekyll Island-State Park Auth., 713 F2d 1518, 1520 (11th

Cir. 1983). It thus “retain[s] its separate identity as an instrumentality of the state and

a public corporation.” OCGA § 50-4-3 (c). So the defendant named in the first

5 lawsuit, the Georgia Department of Natural Resources, and the defendant named in

the second lawsuit, the Jekyll Island--State Park Authority, are separate entities and

the second lawsuit is not a valid renewal of the first lawsuit.

The fact that Aaron named the Jekyll Island--State Park Authority’s trade

name, Summer Waves Water Park, in both complaints does not change this result:

While an entity conducting business in a trade name may be sued in its trade name, [Aaron] simply did not sue the correct entity using its trade name. She sued the wrong [entity, the Georgia Department of Natural Resources], erroneously claiming that it carried on business under the trade name “[Summer Waves Water Park].” The intended defendant is not brought into court where the wrong entity is named in the complaint, even where the intended defendant’s trade name is referenced with “d/b/a.”

Valdosta Hotel Properties, LLC v. White, 278 Ga. App. 206, 212 (1) (628 SE2d 642)

(2006) (citations and punctuation omitted).

For these reasons, the trial court did not err in dismissing Aaron’s lawsuit as

untimely.

Judgment affirmed. Rickman and Markle, JJ., concur.