Robinson v

Boyd, 288 Ga. 53, 701 S.E.2d 165, 2010 Ga. LEXIS 772 (2010). Action on nonnegotiable instrument by different plaintiff. — When a new action on a nonnegotiable instrument is commenced by another and different plaintiff, pendency and dismissal of the former action will not avoid bar of the statute. Moss v. Keesler, 60 Ga. 44, 1878 Ga. LEXIS 368 (1878). Rule requiring substantial identity of essential parties is not violated if a party in the later case is the successor trustee or other representative of an original party who occupied the same position as plaintiff or defendant, or if the first action was dismissed for nonjoinder of one of the representatives of the estate, who is added as party to the second action, or if the first action is brought against two defendants, dismissed as to both, and renewed as to only one; or if the difference is merely as to nominal or unnecessary parties. Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497, 1937 Ga. LEXIS 548 (1937). Same cause of action required. — When petition seeks to renew a former action within six months of its dismissal, which would otherwise be barred by statute of limitations, but for this section, it must appear from the renewal petition that the new action is substantially the same cause of action as that of the former action. Barber v. City of Rome, 39 Ga. App. 225, 146 S.E. 856, 1929 Ga. App. LEXIS 268 (1929). Based on O.C.G.A. § 9-2-61, an arrestee’s excessive force claim against a sheriff’s major in the major’s individual capacity was revived after a voluntary dismissal but assuming that the complaint alleged actual malice under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d), as to the major’s conduct, the tort claim had to be brought against the state under O.C.G.A. § 50-21-25(b); however, the state did not waive the state’s sovereign immunity under O.C.G.A. § 50-21-23(b) for such claim to be brought in federal court. Jude v. Morrison, 534 F. Supp. 2d 1365, 2008 U.S. Dist. LEXIS 55756 (N.D. Ga. 2008). 9-2-61 Assertion of same claims. — Trial court did not err by concluding that the claims in a renewed action were sufficiently similar to the original claims against a corporation’s executive officer (CEO) so that the statute of limitation was tolled under the renewal statute, O.C.G.A. § 9-2-61(a), because in both complaints the plaintiffs claimed the same allegations against the CEO. Cushing v. Cohen, 323 Ga. App. 497, 746 S.E.2d 898, 2013 Ga. App. LEXIS 678 (2013), cert. denied, No. S13C1810, 2013 Ga. LEXIS 936 (Ga. Nov. 4, 2013), cert. denied, No. S13C1715, 2013 Ga. LEXIS 941 (Ga. Nov. 4, 2013). Second action does not have to be a literal copy of the one dismissed. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904). This section is a remedial statute and is to be liberally construed; hence, while the second action must be substantially the same cause of action, it does not have to be a literal copy of the one which was dismissed. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904); Guest v. Atlantic Coast Line R.R., 37 Ga. App. 102, 139 S.E. 97, 1927 Ga. App. LEXIS 494 (1927). Additional allegations and defenses on renewal. — On renewal, plaintiff may allege additional facts or contentions, and defendant likewise may interpose such defensive pleadings as the defendant may deem best. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141, 189 S.E. 555, 1937 Ga. App. LEXIS 1 (1937). New facts, contentions and defenses may be alleged in renewed action. — Plaintiff, on renewal, may allege additional facts or contentions, and the defendant likewise can interpose such defensive pleadings as the defendant may deem best. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). Suit which has been dismissed and renewed, even in the same court, may be defended on renewal on the grounds of venue though no such defense was raised 130 in the original action. Hornsby v. Hancock, 165 Ga. App. 543, 301 S.E.2d 900, 1983 Ga. App. LEXIS 1940 (1983), superseded by statute as stated in Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009). New claims not permitted if expired by statute of limitations. — Even though the patient and husband’s renewal action was timely filed because it was filed within six months after the dismissal of the original action, the trial court should have granted the psychologist and clinic’s motion for judgment on the pleadings as to the patient and husband’s sexual assault, battery, and loss of consortium claims raised in the refiled action since those claims were not raised in the original complaint and the statute of limitations on the claims had expired by the time those claims were filed in the refiled action. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190, 2003 Ga. App. LEXIS 1009 (2003), cert. denied, No. S04C0114, 2004 Ga. LEXIS 102 (Ga. Jan. 20, 2004), cert. denied, No. S04C0106, 2004 Ga. LEXIS 103 (Ga. Jan. 20, 2004). Use of admissions made in original action. — Plain language of O.C.G.A. § 9-11-36(b) confines the use of admissions made pursuant to such discovery tool to the action in which they are made and forbids their use in a subsequent or other action, including a renewal action under O.C.G.A. § 9-2-61. Mumford v. Davis, 206 Ga. App. 148, 424 S.E.2d 306, 1992 Ga. App. LEXIS 1400 (1992), cert. denied, No. S93C0273, 1993 Ga. LEXIS 157 (Ga. Feb. 5, 1993). This section does not prevent defendant from filing such proceedings as the defendant deems best as against recommenced action. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141, 189 S.E. 555, 1937 Ga. App. LEXIS 1 (1937). Right of counterclaimant to renew. — Since a counterclaimant is the plaintiff in the counterclaiment’s own right in asserting a counterclaim, O.C.G.A. § 9-2-61 gives a counterclaimant the right of renewal within six months of the discontinuing or dismissing of the case. Cale v. Jones, 176 Ga. App. 865, 338 S.E.2d 68, 1985 Ga. App. LEXIS 2427 (1985). 9-2-61 Defendant who voluntarily dismissed without prejudice a compulsory counterclaim could not renew it as an original action under O.C.G.A. § 9-2-61 after the plaintiff had voluntarily dismissed with prejudice the main claim without objection by the defendant because renewal of the counterclaim was barred by res judicata. Robinson v. Stokes, 229 Ga. App. 25, 493 S.E.2d 5. This section applies when case is dismissed for want of prosecution. Rountree v. Key, 71 Ga. 214, 1883 Ga. LEXIS 163 (1883). Action against municipality may be renewed when petition in the first action failed to comply with the formalities of former Civil Code 1910, § 910 (see now O.C.G.A. § 36-33-5). City of Tallapoosa v. Brock, 28 Ga. App. 384, 111 S.E. 88, 1922 Ga. App. LEXIS 534 (1922). This section applies to all ordinary actions, including ejectment actions. Moss v. Keesler, 60 Ga. 44, 1878 Ga. LEXIS 368 (1878). O.C.G.A. § 9-2-61 applies to appeals and certiorari from lower courts and if a certiorari petition is involuntarily dismissed for failure to prosecute, it may be renewed within six months. Genins v. City of Atlanta, 203 Ga. App. 269, 416 S.E.2d 838, 1992 Ga. App. LEXIS 495 (1992). This section applies to certiorari proceedings. Brown v. Seals, 17 Ga. App. 4, 86 S.E. 277, 1915 Ga. App. LEXIS 237 (1915); Brackett v. Sebastian, 18 Ga. App. 525, 89 S.E. 1102, 1916 Ga. App. LEXIS 1092 (1916). When valid certiorari has been dismissed, it may be renewed within six months under this section. Gragg Lumber Co. v. Collins, 37 Ga. App. 76, 139 S.E. 84, 1927 Ga. App. LEXIS 467 (1927); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260, 1934 Ga. App. LEXIS 650 (1934). Petition for certiorari which is void for any reason cannot be renewed. Talley v. Commercial Credit Co., 173 Ga. 828, 161 S.E. 832, 1931 Ga. LEXIS 420 (1931). When certiorari was dismissed because of want of compliance with former Civil Code 1910, § 4365 (see now O.C.G.A. § 54-6), petition for certiorari and writ of 131 Application (Cont’d) certiorari were invalid; hence, there was no case which could be recommenced within six months as provided in former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61). Butters Mfg. Co. v. Sims, 47 Ga. App. 648, 171 S.E. 162, 1933 Ga. App. LEXIS 589 (1933). Void certiorari cannot be renewed. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267, 1934 Ga. App. LEXIS 371 (1934); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260, 1934 Ga. App. LEXIS 650 (1934). Application for certiorari following dismissal for lack of service. — Failure to serve the officer whose decision it is sought to review may cause a dismissal, but such dismissal does not bar a second application for certiorari when it is made to appear that such a fact is the sole reason for the dismissal and that it is not a decision on the merits. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77, 1981 Ga. App. LEXIS 2696 (1981). Refiling of state claim in state court after dismissal in federal court. — Georgia law allows plaintiffs to refile their state claims in a state court upon a voluntary dismissal of the claims in a federal court. Hubbard v. Stewart, 651 F. Supp. 294, 1987 U.S. Dist. LEXIS 158 (M.D. Ga. 1987). Plaintiffs may renew their state law claims in state court within six months of the dismissal of their claims by a federal district court, when the merits of the pendent state law claims were not reached by the federal court. O’Neal v. DeKalb County, 667 F. Supp. 853, 1987 U.S. Dist. LEXIS 7177 (N.D. Ga. 1987), aff’d, 850 F.2d 653, 1988 U.S. App. LEXIS 9980 (11th Cir. 1988). Section applicable in federal court when action originally in state court. — In certain circumstances, O.C.G.A. § 92-61 is to be applied in a United States District Court the same as it is applied in the courts of the state. Where plaintiffs voluntarily dismissed a state court action and recommenced within six months in federal court, the renewed case stands upon the same footing, as to limitation, with the original case. The statute of limi- 9-2-61 tations has therefore not expired. Lamb v. United States, 526 F. Supp. 1117, 1981 U.S. Dist. LEXIS 9953 (M.D. Ga. 1981). Section inapplicable in federal court actions. — When the original action was commenced in state court and removed to federal court, when it was dismissed, the action could not be renewed in the state court. Cox v. East Tenn. & Ga. R.R., 68 Ga. 446, 1882 Ga. LEXIS 28 (1882); Webb v. Southern Cotton Oil Co., 131 Ga. 682, 63 S.E. 135, 1908 Ga. LEXIS 178 (1908). Action dismissed in federal court cannot be renewed in state courts. Constitution Publishing Co. v. DeLaughter, 95 Ga. 17, 21 S.E. 1000, 1894 Ga. LEXIS 432 (1894). Action brought in state court, properly removed by the defendant to federal court having concurrent jurisdiction, and there dismissed on the plaintiff’s motion, cannot, under this section, be renewed in state court within six months of such dismissal, so as to avoid the bar of the statute of limitations. Ivester v. Southern Ry., 61 Ga. App. 364, 6 S.E.2d 214, 1939 Ga. App. LEXIS 298 (1939). Statute of limitations for an action for the same cause which has previously been filed in federal district court and there dismissed is not tolled by this section, which is not applicable to suits commenced in federal courts. Nevels v. Detroiter Mobile Homes, 124 Ga. App. 112, 183 S.E.2d 77, 1971 Ga. App. LEXIS 832 (1971). This section is not applicable when the original action was filed in federal court but is applicable only to actions originally filed in state courts of Georgia. Hudnall v. Kelly, 388 F. Supp. 1352, 1975 U.S. Dist. LEXIS 13976 (N.D. Ga. 1975). While choice of forums is the litigant’s, this section will be no protection if the litigant chooses the federal forum. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284, 1977 Ga. App. LEXIS 2592 (1977). This section does not apply to actions first commenced in federal court. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284, 1977 Ga. App. LEXIS 2592 (1977); Laine v. Wright, 586 F.2d 607, 1978 U.S. App. LEXIS 6988 (5th Cir. 1978). 132 Words “court of this state” in this section mean “courts created by the constitution and laws of this state”; accordingly, this section does not apply to actions brought in federal court sitting in this state. Diversified Mtg. Investors v. Georgia-Carolina Indus. Park Venture, 463 F. Supp. 538, 1978 U.S. Dist. LEXIS 7174 (N.D. Ga. 1978). This rule does not apply where the original filing is in federal court. Blaustein v. Harrison, 160 Ga. App. 256, 286 S.E.2d 758, 1981 Ga. App. LEXIS 2967 (1981). Rule that O.C.G.A. § 9-2-61 does not apply when the original filing is in federal court is not unconstitutional as it is based upon United States Supreme Court precedent. Blaustein v. Harrison, 160 Ga. App. 256, 286 S.E.2d 758, 1981 Ga. App. LEXIS 2967 (1981). Since the employee’s discrimination suit against the employer was based on Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the court rejected the employee’s contention that state law, not federal law, governed the voluntary dismissal of the employee’s complaint and that O.C.G.A. § 9-2-61(a) afforded the employee a second chance to file the employee’s original complaint as long as the employer received notice of the lawsuit. The suit was filed pursuant to Title VII, a federal law that contained a statute of limitations. Weldon v. Elec. Data Sys. Corp., 138 Fed. Appx. 136, 2005 U.S. App. LEXIS 7961 (11th Cir. 2005). Actions filed in other jurisdictions. — This section is inapplicable when the case was originally filed in a jurisdiction other than Georgia. Sherrill v. U.S. Fid. & Guar. Co., 108 Ga. App. 591, 133 S.E.2d 896, 1963 Ga. App. LEXIS 715 (1963). O.C.G.A. § 9-2-61 is inapplicable to Federal Employers’ Liability Act (45 U.S.C. § 51 et seq.) actions. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822, 348 S.E.2d 97, 1986 Ga. App. LEXIS 2669 (1986). Section inapplicable to collection of Interstate Commerce Act demurrage charges. — O.C.G.A. § 9-2-61 cannot operate to save a cause of action for collection of demurrage charges filed pur- 9-2-61 suant to the Interstate Commerce Act, 49 U.S.C. § 101 et seq. J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13, 380 S.E.2d 724, 1989 Ga. App. LEXIS 471 (1989). This section has no application under the Workers’ Compensation Act. Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177, 174 S.E. 726, 1934 Ga. App. LEXIS 317 (1934); Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828, 184 S.E. 808, 1936 Ga. App. LEXIS 263 (1936); Gordy v. Callaway Mills Co., 111 Ga. App. 798, 143 S.E.2d 401, 1965 Ga. App. LEXIS 1104 (1965). Former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61) did not apply to actions to foreclose a materialman’s lien on real estate under former Civil Code 1910, § 3353 (see now O.C.G.A. § 44-14361.1). Chamblee Lumber Co. v. Crichton, 136 Ga. 391, 71 S.E. 673, 1911 Ga. LEXIS 554 (1911). O.C.G.A. § 9-2-61 does not apply to claims before the State Board of Workers’ Compensation. Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69, 1981 Ga. App. LEXIS 2542 (1981). This section does not apply to foreclosure of lien on sawmill. Walker v. Burt, 57 Ga. 20, 1876 Ga. LEXIS 6 (1876). This section has no application to disbarment proceeding. Williford v. State, 56 Ga. App. 840, 194 S.E. 384, 1937 Ga. App. LEXIS 247 (1937). Section inapplicable where limitation created by contract. — When a party to an insurance policy agrees to sue within one year, or not at all, this section does not apply to an action on the policy. Melson v. Phoenix Ins. Co., 97 Ga. 722, 25 S.E. 189, 1895 Ga. LEXIS 563 (1895). When an action was barred by a limitation in a contract with a carrier, this section did not apply. Leigh Ellis & Co. v. Payne, 274 F. 443, 1921 U.S. Dist. LEXIS 1169 (D. Ga.), aff’d, 276 F. 400, 1921 U.S. App. LEXIS 2101 (5th Cir. 1921). The Georgia “savings” statute, subsection (a) of O.C.G.A. § 9-2-61, does not operate to save a renewed action from a contractual limitations period, such as that in an insurance policy. Stenger Indus., Inc. v. International Ins. Co., 74 B.R. 133 Application (Cont’d) 1017, 1987 U.S. Dist. LEXIS 9634 (N.D. Ga. 1987). Filing third suit following dismissal of second suit for failing to pay costs of original suit. — If a O.C.G.A. § 9-11-41(b) dismissal for failure to make payment of costs in the original suit prior to filing of a second suit occurs within the period of the statute of limitations, there is nothing to prevent the plaintiff from paying costs in both dismissed suits and filing a third suit so long as the first dismissal did not act as an adjudication on the merits. Little v. Walker, 250 Ga. 854, 301 S.E.2d 639, 1983 Ga. LEXIS 659 (1983). Dismissal of action for failure to pay previous fees and costs. — When the consumer’s products liability action was dismissed without prejudice under Fed. R. Civ. P. 41(a)(2), the dismissal order indicated that the manufacturer was entitled to fees and costs; when the consumer refiled the action, the district court abused the court’s discretion by dismissing the action because the consumer had not paid fees and costs. The prior voluntary dismissal order indicated only that the manufacturer was entitled to the manufacturer’s attorney’s fees and costs and that the next court should resolve the fee/cost petition; the consumer was not prohibited from refiling the action under O.C.G.A. § 9-2-61. Parrish v. Ford Motor Co., 299 Fed. Appx. 856, 2008 U.S. App. LEXIS 22712 (11th Cir. 2008). Validity of renewal action in issue. — Trial court’s partial grant of summary judgment on statute of limitations defense to plaintiff’s slander claim was reversed since there remained a genuine issue of material fact as to whether the plaintiff’s action was a valid renewal action under O.C.G.A. § 9-2-61. Elder v. Cardoso, 205 Ga. App. 144, 421 S.E.2d 753, 1992 Ga. App. LEXIS 1091 (1992). Mistaken information from clerk that no costs due. — Costs which must be paid pursuant to O.C.G.A. § 9-11-41, as a precondition to the filing of a new suit, do not include costs unknown to the plaintiff after a good faith inquiry since the attorney was mistakenly informed by 9-2-61 the clerk of the trial court that no costs were due on a previous action. But any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction. Daugherty v. Norville Indus., Inc., 174 Ga. App. 89, 329 S.E.2d 202, 1985 Ga. App. LEXIS 1754 (1985). Action renewed pursuant to subsection (a) of O.C.G.A. § 9-2-61 is an action de novo, and a defendant is not estopped from raising a proper defense (such as insufficiency of service) in a renewal action simply because the defense was not raised in the original action. Adams v. Gluckman, 183 Ga. App. 666, 359 S.E.2d 710, 1987 Ga. App. LEXIS 2062 (1987). Renewed case in effect de novo. — When a case is renewed, recommenced, or brought over under this section, it is in effect de novo, except that the statute of limitations does not run. Bishop v. Greene, 62 Ga. App. 126, 8 S.E.2d 448, 1940 Ga. App. LEXIS 612 (1940). Since the claimant dismissed the lawsuit against the insured and refiled an identical suit under O.C.G.A. § 9-2-61, the insured’s tardy forwarding of the suit papers in the first action was cured by the dismissal and the insurer was not relieved of its obligation to defend the second suit or of its potential liability thereunder. Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 262 Ga. 502, 422 S.E.2d 191, 1992 Ga. LEXIS 921 (1992). Renewed lawsuit under O.C.G.A. § 9-261(a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew, and diligence in perfecting service in a renewal action must be measured from the time of filing the renewed suit. Magsalin v. Chace, 255 Ga. App. 146, 564 S.E.2d 554, 2002 Ga. App. LEXIS 537 (2002). Renewal action not established. — Driver did not make the requisite showing in the driver’s renewed complaint, nor did the record contain any evidence that the driver’s complaint met the test for renewal, and, although both actions were apparently filed in the same court, there 134 was no indication that the driver requested that the trial court take judicial notice of the record in the driver’s original case; therefore, the appellate court concluded that the driver did not meet the burden of showing that the trial court erred in concluding that the driver’s second action was barred by the statute of limitations. Belcher v. Folsom, 258 Ga. App. 191, 573 S.E.2d 447, 2002 Ga. App. LEXIS 1392 (2002). Section applied and permitted renewal when affidavit was mistakenly omitted. — When all parties agreed that a patient’s expert affidavit was available when the patient’s first medical malpractice complaint was filed but was mistakenly omitted, O.C.G.A. § 9-11-9.1 applied and permitted renewal; the trial court erred in granting summary judgment in favor of a doctor and an institute in the patient’s malpractice case. Rector v. O’Day, 268 Ga. App. 864, 603 S.E.2d 337, 2004 Ga. App. LEXIS 1035 (2004), cert. denied, No. S04C2090, 2004 Ga. LEXIS 1053 (Ga. Nov. 22, 2004). Trial court erred by dismissing a couple’s renewed negligence complaint for failing to file an expert affidavit with the couple’s original complaint as required by O.C.G.A. § 9-11-9.1(a) because the record failed to contain sufficient findings showing whether any professional negligence was involved with regard to the wife falling from a testing table as it was merely speculative whether the technician had to assess the wife’s medical condition in order to decide whether she could get down from a raised table since it could have been that no professional judgment was required. The trial court additionally erred by dismissing the couple’s renewed complaint because the defending medical entities waived their objection to the renewal by failing to file a separate motion to dismiss contemporaneously with their answer to the couple’s original action. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165, 2009 Ga. App. LEXIS 846 (2009), aff’d, 287 Ga. 406, 696 S.E.2d 640, 2010 Ga. LEXIS 508 (2010). Motion for attorney fees cannot be renewed. — Because a defendant timely filed a motion for attorney fees under 9-2-61 O.C.G.A. § 9-15-14 but later withdrew it, the trial court erred in ruling that the motion could be renewed under O.C.G.A. § 9-2-61(a); as the “renewed motion” was filed more than 45 days after entry of summary judgment, the trial court erred in granting the neighbor attorney fees. Condon v. Vickery, 270 Ga. App. 322, 606 S.E.2d 336, 2004 Ga. App. LEXIS 1414 (2004). Georgia Prison Litigation Reform Act. — Discretionary application requirement of Georgia Prison Litigation Reform Act, O.C.G.A. § 42-12-8, was inapplicable to an injured party’s renewed personal injury suit because the injured party was not a prisoner when the de novo action was filed. Baskin v. Ga. Dep’t of Corr., 272 Ga. App. 355, 612 S.E.2d 565, 2005 Ga. App. LEXIS 292 (2005). Executor’s renewal action. — In the absence of an explicit order in an executor’s renewal action, O.C.G.A. § 9-2-61(a), requiring the executor to identify the executor’s expert witnesses by a date certain, the executor’s failure to do so did not warrant the extreme sanction of dismissal under O.C.G.A. § 9-11-41(b), (c). Porter v. WellStar Health Sys., 299 Ga. App. 481, 683 S.E.2d 35, 2009 Ga. App. LEXIS 833 (2009), cert. denied, No. S09C2031, 2010 Ga. LEXIS 80 (Ga. Jan. 25, 2010). Untimely service of process in first action not a defense in renewal action. — Because defendants were timely served in a renewal action brought under O.C.G.A. § 9-2-61(a), the defendants could not assert as a defense the fact that the defendants were served five years after the initial action, which had been dismissed following service of defendants. The equitable doctrine of laches, O.C.G.A. § 9-3-3, did not apply in a personal injury action because the action was a legal action. Boyd v. Robinson, 299 Ga. App. 795, 683 S.E.2d 862, 2009 Ga. App. LEXIS 977 (2009), aff’d, 288 Ga. 53, 701 S.E.2d 165, 2010 Ga. LEXIS 772 (2010). Renewal proper. — Because a health care provider simply raised a patient’s failure to comply with O.C.G.A. § 9-119.1(a) as a defense in the provider’s answer rather than in a contemporaneous motion to dismiss, as required by § 9-119.1(c), the patient was not precluded from 135 Application (Cont’d) renewing a negligence action pursuant to 9-2-61 O.C.G.A. § 9-2-61. Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 696 S.E.2d 640, 2010 Ga. LEXIS 508 (2010).