Margaret Cox v. Lester Dodson

• Court: Court of Appeals of Georgia
• Decided: May 23, 2012
• Docket: A12A0310
• Status: Published

Opinion

THIRD DIVISION MIKELL, P. J., MILLER and BLACKWELL, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 23, 2012

In the Court of Appeals of Georgia A12A0310. COX v. PROGRESSIVE BAYSIDE INSURANCE COMPANY.

MIKELL, Presiding Judge.

In order to recover damages allegedly sustained in an automobile collision,

Margaret Cox filed suit against Lester H. Dobson. Cox then voluntarily dismissed that

suit and re-filed the present renewal action after the statute of limitation had expired,

but within the six-month period contemplated by OCGA § 9-2-61. Progressive, an

unnamed defendant and the uninsured motorist carrier for the owner of the vehicle

Cox was occupying at the time of the accident, moved to dismiss the complaint

because Dobson died several months prior to the filing of the renewal action. The trial

court granted the motion to dismiss. Cox appeals, arguing that the trial court erred in

dismissing the action entirely as being void ab initio, that the trial court erred in holding that substitution of parties is not available in this renewal action, and that the

trial court erred in determining that the renewal action is also dismissed as to

Progressive. Finding no error, we affirm.

On appeal, we conduct a de novo review of a trial court’s ruling on a motion

to dismiss.1

Cox filed suit against Dodson in the State Court of Carroll County arising out

of injuries she sustained when Dodson’s car struck the vehicle she was riding in as

a passenger. After Dodson was properly served, Cox filed a voluntary dismissal

without prejudice. Cox then filed a renewal action within the six month renewal

period. Prior to this, Dodson died. Eight days after the renewal complaint was filed,

the sheriff’s entry of service was filed, indicating that Dodson had died. Progressive,

an unnamed defendant, filed a suggestion of death of party defendant and a motion

to dismiss, to which Cox did not respond. A hearing was held on the motion to

dismiss over eleven months after Cox was put on notice that Dodson had died, but no

motion to substitute a party defendant was ever filed. After a hearing, the trial court

granted Progressive’s motion to dismiss, finding that, because Dodson died prior to

the filing of the renewal action, the action was a nullity and void ab initio.

1 Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561) (2006).

2 1. Cox argues that the trial court erred in determining that Dodson’s

death rendered the renewal action void ab initio and in determining that substitution

of the parties was unavailable in the renewal case. We disagree.

Appellant’s argument that the renewal pleading relates back to the original

pleading for purposes of perfecting service is misguided. The renewal statute, OCGA

§ 9-2-61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit

within six months, regardless of whether the statute of limitations has run.2 However,

a renewal suit is “an action de novo.”3 “[T]herefore, the procedural requirements of

filing a new complaint and perfecting service must be met anew.”4 In the present case,

Cox did not meet the procedural requirements of perfecting service against Dodson

because he was deceased at the time she filed the renewal suit. In Georgia, a deceased

person cannot be a party to legal proceedings and any suit brought against a deceased

2 Sawyer v. DeKalb Medical Center, 234 Ga. App. 54 (1) (506 SE2d 197) (1998). 3 (Footnote omitted.) Carter v. McKnight, 260 Ga. App. 105, 106 (2) (578 SE2d 901) (2003). 4 Davis v. Bushnell, 245 Ga. App. 221, 222 (537 SE2d 477) (2000). Accord, Carter, supra.; Magsalin v. Chace, 255 Ga. App. 146 (564 SE2d 554) (2002).

3 defendant is a nullity.5 The fact that Cox may have perfected service against Dodson

in the prior suit does not affect the fact that she has not perfected service against him

in the renewal suit and accordingly, no action was ever commenced.6

Further, Cox’s argument that she should have been allowed to substitute the

proper party for the deceased Dodson under OCGA § 9-11-25 is without merit. Cox

was informed of Dodson’s death over eleven months prior to the hearing on the

motion to dismiss and never filed a motion for substitution under OCGA § 9-11-25.

Because the renewed complaint was filed against a deceased person and Cox never

attempted to substitute defendants prior to the trial court’s hearing on the motion to

dismiss, we find that the trial court did not err in denying Cox’s request to substitute

parties.7

2. Cox next argues that the trial court erred in dismissing the renewed

complaint as to Progressive, the uninsured motorist carrier for the owner of the

5 Vaughan v. Brown, 181 Ga. App. 680, 681 (2) (353 SE2d 608) (1987). Accord Mathews v. Cleveland, 159 Ga. App. 616, 617-618 (284 SE2d 634) (1981). 6 Vaughan, supra.; Mathews, supra. 7 Rowe v. Citizens &Southern Nat. Bank, 129 Ga. App. 251, 253 (199 SE2d 319) (1973) (statute relating to the substitution of parties after death was inapplicable where a party originally named was not in existence at the time the complaint was filed).

4 vehicle Cox was occupying at the time of the accident8. However, Cox did not raise

this argument in the trial court below, either in a written motion or during the hearing

on the motion to dismiss. The Court of Appeals will not consider arguments neither

raised nor ruled on in the trial court and that are asserted for the first time on appeal.9

Accordingly, this issue is waived.10

Judgment affirmed. Miller and Blackwell, JJ., concur.

8 Cox mistakenly asserts that Progressive is the uninsured motorist carrier for Dodson. 9 Belans v. Bank of America, N. A., 309 Ga. App. 208, 212 (3) (709 SE2d 853) (2011). 10 Id.