LONYAY SANGSTER v. GARY R. MCGILLVARY

• Court: Court of Appeals of Georgia
• Decided: October 29, 2024
• Docket: A24A0987
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, 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. https://www.gaappeals.us/rules

October 29, 2024

In the Court of Appeals of Georgia A24A0987. SANGSTER v. MCGILLVARY et al.

PIPKIN, Judge.

Appellant Lonyay Sangster appeals the grant of summary judgment to

Appellees Dr. Gary McGillivary and Emory Healthcare (hereinafter “McGillivary”)

after the trial court concluded that Sangster’s renewal action was barred by the statute

of repose applicable to medical malpractice actions. See OCGA § 9-3-71 (b) (“[I]n no

event may an action for medical malpractice be brought more than five years after the

date on which the negligent or wrongful act or omission occurred.”). For the reasons

set forth below, we must vacate the judgment of the trial court and remand this case

for the court to consider the issue of tolling as laid out in the Georgia Supreme Court’s recent opinion of Golden v. Floyd Healthcare Mgmt., 319 Ga. 496 (904 SE2d

359) (2024).

“Summary judgment is appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.’” Yim v. Carr, 349 Ga. App. 892, 893 (1) (827 SE2d

685) (2019) (quoting OCGA § 9-11-56 (c)). On appeal, “we owe no deference to the

trial court’s ruling and we review de novo both the evidence and the trial court’s legal

conclusions. Moreover, we construe the evidence and all inferences and conclusions

arising therefrom most favorably toward the party opposing the motion.” (Citations

and punctuation omitted.) Bryant v. Optima Intl., 339 Ga. App. 696, 696 (792 SE2d

489) (2016).

Here, the relevant facts and procedural history are undisputed. Sangster sued

McGillivary for medical malpractice stemming from Sangster’s April 24, 2018, carpal

tunnel operation. Sangster originally filed the complaint on February 24, 2020, but it

was later involuntarily dismissed by the trial court without prejudice on July 13, 2023,

for want of prosecution. Sangster filed a renewal action on August 16, 2023. See

2 OCGA § 9-2-61 (a).1 Shortly thereafter, McGillivary filed a motion for summary

judgment contending that the renewal action was barred by the five-year statute of

repose that had expired on April 24, 2023. The trial court agreed and granted

summary judgment to McGillivary.

In his sole enumeration, Sangster argues, as he did below, that the renewal

statute creates an exception to the medical malpractice’s five-year statute of repose.

We disagree. It is well settled that

a properly filed renewal action stands on the same footing as the original action with respect to statutes of limitation. Accordingly, if a renewal action is properly filed within six months after dismissal of the original action, it remains viable even though the statute of limitation may have expired. However, the Supreme Court of Georgia has held that the legislature never intended for the dismissal and renewal statutes to overcome the five-year statute of repose for medical malpractice actions set forth in OCGA § 9-3-71 (b).

[Instead, t]he five-year statute of repose stands as an unyielding barrier to a plaintiff’s right of action, is absolute, and destroys the previously

1 “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 applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; 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.” 3 existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. Thus, if a plaintiff refiles her action for medical malpractice more than five years after the date upon which the alleged negligent act or omission occurred, the action is subject to dismissal pursuant to OCGA § 9-3-71 (b).

(Citations and puncutation omitted.) Fuller Life Chiropractic Center v. Threadgill, 370

Ga. App. 256, 259 (896 SE2d 15) (2023). Still, Sangster contends that this case law

should not apply to his case because, he argues, unlike Threadgill and similar cases, his

action was involuntarily dismissed. We are not persuaded.

As an initial matter, Sangster fails to conduct any statutory analysis in order to

show how the plain language of the renewal statute creates an exception to the statute

of repose.2 Further, our review of the plain language of OCGA § 9-2-61 (a) and OCGA

§ 9-3-71 (b), reveals nothing that distinguishes between cases which are voluntarily

dismissed and cases which are involuntarily dismissed. See Deal v. Coleman, 294 Ga.

170, 173 (1) (a) (751 SE2d 337) (2013) (“[I]f the statutory text is clear and

2 Instead, Sangster relies on a case from Illinois that is inapplicable to his case. See Jain v. Johnson, 398 Ill. App. 3d 135, 138-144 (922 NE2d 1188) (2010) (interpreting the ambiguous language in Illinois’ “saving statute”to create a limited one-year refiling exception to Illinois’ legal malpractice statute of repose). Indeed, the language of the Illinois statutes at issue in Jain do not mirror the Georgia statutes at issue here. Accordingly, the statutory analysis from Jain is of no assistance to this Court. 4 unambiguous, we attribute to the statute its plain meaning, and our search for

statutory meaning is at an end.”). This Court has previously held that the plain

language of OCGA § 9-2-61 (a) “applies to voluntary or involuntary dismissals where

the merits were not adjudicated.” (Citation omitted.) Kimball v. KGB Transport, 241

Ga. App. 511, 511 (527 SE2d 233) (1999). Regarding, OCGA § 9-3-71 (b), the statute

of repose clearly states “in no event may an action for medical malpractice be brought

more than five years after the date on which the negligent or wrongful act or omission

occurred.” (Emphasis supplied.) In other words, the legislature has plainly stated that

the statute of repose applies no matter if an action was voluntarily or involuntarily

dismissed. Accordingly, the trial court did not err in granting summary judgment to

McGillivary on this basis.

That said, after the trial court issued its order in this matter and after this appeal

was filed, our Supreme Court reversed our decision in Golden v. Floyd Healthcare

Mgmt., 368 Ga. App. 409 (890 SE2d 288) (2023), and determined that the order

declaring a statewide judicial emergency in response to the COVID-19 pandemic

could toll the statute of repose. See generally Golden, 319 Ga. 496. In light of this

opinion, we find it necessary to remand this case to the trial court to consider whether,

5 under the facts of this case, the statue of repose was tolled by the statewide judicial

emergency order.

Judgment vacated and case remanded with direction. Barnes, P. J., and Gobeil, J.,

concur.