Burroughs v. Georgia Ports Authority

793 S.E.2d 538, 339 Ga. App. 294, 2016 Ga. App. LEXIS 682
CourtCourt of Appeals of Georgia
DecidedNovember 1, 2016
DocketA16A1469, A16A1532
StatusPublished
Cited by2 cases

This text of 793 S.E.2d 538 (Burroughs v. Georgia Ports Authority) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burroughs v. Georgia Ports Authority, 793 S.E.2d 538, 339 Ga. App. 294, 2016 Ga. App. LEXIS 682 (Ga. Ct. App. 2016).

Opinion

Branch, Judge.

In these consolidated appeals, Percy and Zina Burroughs appeal the dismissal of their tort claims against the Georgia Ports Authority (“GPA”) in a suit arising out of injuries Mr. Burroughs suffered when a container was dropped onto the flatbed truck that he was driving. The trial court held that Mr. Burroughs was not authorized to file a second renewal action after the running of the statute of limitation and that Mrs. Burroughs filed suit after the applicable statute of [295]*295limitation had run for her claim of loss of consortium. For the reasons shown below, we affirm.

Our review of a trial court’s ruling on a motion to dismiss is de novo. Pinnacle Benning v. Clark Realty Capital, 314 Ga. App. 609, 612 (724 SE2d 894) (2012).

The record in the two appeals shows the following undisputed procedural facts. Mr. Burroughs was injured on January 27, 2012, and he gave ante litem notice of a claim to the relevant state agencies on December 5, 2012, as required by the Georgia Tort Claims Act (“GTCA”)1 Mr. Burroughs filed his initial complaint (the “first action”) on November 15, 2013, but voluntarily dismissed that action without prejudice on May 8, 2014. Mr. Burroughs refiled his action on November 7, 2014, within six months of the prior dismissal. In that second action, Mrs. Burroughs appeared for the first time as a co-plaintiff and asserted a claim of loss of consortium. GPA moved to dismiss the second action on the grounds that the plaintiffs had failed to attach copies of relevant ante litem notices as required under the GTCA and that Mrs. Burroughs’s claim was barred by the applicable statute of limitation. Almost three months after GPA moved to dismiss, the plaintiffs amended the complaint to attach a copy of Mr. Burroughs’s December 5, 2012 ante litem notice. On April 8, 2015, however, the trial court granted the motion to dismiss without prejudice on the ground that the amendment was filed outside of the 30-day time period for amendments set forth in OCGA § 50-21-26 (a) (4).2

On July 14, 2015, more than a year after the voluntary dismissal of the first action and more than three years after the initial incident, the plaintiffs then filed the present action (the “third action”) against GPA, raising the same claims raised in the earlier actions. GPA again moved to dismiss. The trial court granted the motion with regard to Mr. Burroughs on the grounds that (1) Mr. Burroughs’s claims were governed by a two-year statute of limitation; (2) the third action could not be a renewal of the first action because the third action was not [296]*296filed within six months of the dismissal of the first action as required; (3) the second action was the only renewal available to the plaintiffs and that case had been dismissed; and (4) even if the second action were deemed void and did not count as a renewal action, the third action was untimely as a renewal of the first action as already shown. Finally, the court initially held that Mrs. Burroughs’s claim was governed by the four-year limitation period found in OCGA § 9-3-33 for claims of loss of consortium and that, therefore, her claim was timely filed. In response to a motion for reconsideration, however, the court also dismissed Mrs. Burroughs’s claim because it was time barred by the two-year limitation of the GTCA. Mr. and Mrs. Burroughs appealed separately, but we have consolidated their appeals for review.

1. The GPAis a state agency entitled to the defense of sovereign immunity Miller v. Ga. Ports Auth., 266 Ga. 586, 589 (470 SE2d 426) (1996). The state has waived that immunity for the torts of state officers and employees while acting within the scope of their official duties or employment by enacting the GTCA, id., but only within the limitations of the act itself. OCGA §§ 50-21-21 (a); 50-21-23; Ga. Ports Auth. v. Harris, 274 Ga. 146, 149 (2) (549 SE2d 95) (2001). One of those limitations is that the GTCA has its own two-year statute of limitation:

For tort claims and causes of action which accrue on or after July 1, 1992, any tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss was or should have been discovered.

OCGA § 50-21-27 (c); see Sylvester v. Dept. of Transp., 252 Ga. App. 31, 32 (555 SE2d 740) (2001). Thus, any claim for which immunity is waived by the GTCA is subject to a two-year limitation period. Accordingly, even if Mrs. Burroughs’s claim of loss of consortium is a tort for which sovereign immunity is waived by the GTCA,3 which we need not decide, Mrs. Burroughs filed her claim outside of the two-[297]*297year limitation period, and it is therefore barred.4 The trial court therefore correctly dismissed Mrs. Burroughs’s suit.

With regard to Mr. Burroughs, he filed the first action approximately 22 months after his injury and thus within the applicable statute of limitation. But by the time that Mr. Burroughs voluntarily dismissed the first action in May 2014, the limitation period had expired, and, accordingly, the second and third actions were filed outside of the limitation period. Accordingly, whether Mr. Burroughs’s third action relates back to the time that he filed his first action is controlled by the renewal statute.

2. Mr. Burroughs was authorized to file the second action as a renewal action under OCGA § 9-2-61 because he filed the second action within six months after the dismissal of his first action.

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontin ues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later ....

OCGA § 9-2-61 (a) (emphasis supplied).5 Mr. Burroughs was therefore authorized to renew the first action. But because he dismissed the first action outside of the limitation period, Mr. Burroughs was entitled to renew his suit only once, as is clearly stated in the remainder of OCGA § 9-2-61 (a):

. . . 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.

[298]*298Thus, given that his second action was dismissed, Mr. Burroughs was not entitled to file the third action as a second renewal of the first action. Hatton v. MARTA, 310 Ga. App.

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Bluebook (online)
793 S.E.2d 538, 339 Ga. App. 294, 2016 Ga. App. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burroughs-v-georgia-ports-authority-gactapp-2016.