                             SECOND DIVISION
                               DOYLE, C. J.,
                         MILLER, P. J., and REESE, J.

                   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


                                                                     April 20, 2017




In the Court of Appeals of Georgia
 A17A0590. WHITESELL, et al. v. GEORGIA POWER
     COMPANY.

      MILLER, Presiding Judge.

      This appeal arises from the death of Leroy Vernon Jones after he was struck

by vehicles while walking along a road at night in Valdosta. The administrators of

Jones’s estate and his daughter (collectively “Whitesell”) timely sued Georgia Power

Company (“Georgia Power”), alleging that inadequate lighting on the road caused

Jones’s death. After Whitesell voluntarily dismissed that suit, he filed an attempted

renewal suit. Whitesell now appeals from the trial court’s dismissal of his attempted

renewal suit. For the following reasons, we affirm.

      We review a trial court’s grant of a motion to dismiss de novo. Brown v. J.H.

Harvey Co., 268 Ga. App. 322 (1) (601 SE2d 808) (2004).
        So viewed, the parties agree that Jones died on November 14, 2011, that

Whitesell filed a wrongful death lawsuit against several parties, including Georgia

Power, on November 13, 2013, (the “2013 Suit”), and that Whitesell voluntarily

dismissed the 2013 Suit on March 5, 2014. Whitesell did not include the pleadings

related to the 2013 Suit in the record for this Court to review. Whitesell subsequently

filed the instant lawsuit solely against Georgia Power on August 27, 2014 (the “2014

Suit”). The complaint filed in the 2014 Suit, however, made no reference to the 2013

Suit.

        Georgia Power timely answered the 2014 Suit and moved to dismiss it.

Whitesell opposed the motion to dismiss and, in response to it, amended the 2014 Suit

to state: “[t]his is a renewal action against the Defendant Georgia Power pursuant to

OCGA § 9-2-61. This lawsuit was originally filed in Lowndes County, Georgia,

under Civil Action #2013CV2462.” In a brief order, the trial court granted Georgia

Power’s motion to dismiss.

        1. In his sole enumeration of error, Whitesell contends that the trial court erred

in dismissing the 2014 Suit. We find no error.




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      Whitesell had 2 years to file suit, and it is undisputed that the statute of

limitations on the claim expired on November 14, 2013, the day after suit was filed.

OCGA § 9-3-33. Although suit generally must be filed prior to expiration of the

statute of limitations, Georgia law provides an exception for filing a renewal suit after

the expiration of the statute of limitations in certain circumstances. Specifically,

Whitesell’s right to take advantage of this exception and file a renewal suit is

governed by OCGA § 9-2-61 and the cases interpreting it. Belcher v. Folsom, 258 Ga.

App. 191 (573 SE2d 447) (2002). That statute provides:

      When any case has been commenced . . . 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 . . . 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.


OCGA § 9-2-61 (a).

      The 2014 Suit was filed after the expiration of the statute of limitations,

consequently, for the suit to survive a motion to dismiss, Whitesell needed to show




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entitlement to file a renewal suit and that he followed the proper procedure to file a

renewal suit.

      It is well settled that,

      in order to show the right to renew the suit within six months after the
      dismissal of a prior suit on the same cause of action, when such right is
      relied upon to relieve the plaintiff of the bar of the statute of limitation,
      it is necessary for the renewal petition to show affirmatively that the
      former petition was not a void suit, that it is such a valid suit as may be
      renewed under OCGA § 9-2-61, that it is based upon substantially the
      same cause of action, and that it is not a renewal of a previous action
      which was dismissed on its merits so that the dismissal would act as a
      bar to the rebringing of the petition.


(Footnote, citation, and punctuation omitted; emphasis supplied.) Belcher, supra, 258

Ga. App. at 192; see also Morrison v. Bowen, 106 Ga. App. 464 (2) (127 SE2d 194)

(1962) (citing Talley v. Commercial Credit Co. of Georgia, 173 Ga. 828 (2) (161 SE

832) (1931)). Our Supreme Court has ruled that when a renewal action has been filed

in the same court as the original action, the trial court may take judicial notice of the

physical record from the original action in determining if the renewed action met the

tests for renewal. Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). The

trial court, however, is not required to take this judicial notice. Id.


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      Here, when Georgia Power moved to dismiss the complaint based, in part, on

Whitesell’s failure to plead that the 2014 Suit was properly filed as a renewal action,

Whitesell amended his 2014 complaint. The amended language, however, failed to

cure the defect in a manner which complies with the requirements set out by case law.

Instead, the amended complaint simply stated “[t]his is a renewal action against the

Defendant Georgia Power pursuant to OCGA § 9-2-61. This lawsuit was originally

filed in Lowndes County, Georgia, under Civil Action #2013CV2462.”

      Pretermitting whether the amendment to the 2014 Suit related back, the

amended language of the 2014 Suit does not affirmatively show that the 2013 Suit

was not void, pleadings from the 2013 Suit are not in the record on appeal for this

Court to review, and the record does not show that the trial court exercised its

discretion to take judicial notice of the 2013 Suit. Moreover, the 2014 Suit, as

amended, does not state that it is based upon substantially the same cause of action

as the 2013 Suit, or that the 2013 Suit was not dismissed on its merits. Indeed, we

have found language more descriptive than the amended language in the 2014 Suit

to be insufficient to affirmatively show that a renewal suit is properly filed. See

Morrison, supra, 106 Ga. App. at 464 (3) (renewal complaint was insufficient, even

though it identified date original suit filed and its case number, stated that both suits

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were against the same defendants, and stated the date of the order dismissing the

original case).

       Here, Whitesell failed to affirmatively show in his pleading that the 2014 Suit

was a properly filed renewal suit as required by this Court’s prior case law.

Consequently, the trial court properly dismissed the 2014 Suit. To allow Whitesell’s

suit to proceed would be to disregard this Court’s prior precedent interpreting OCGA

§ 9-2-61 (a), and that we cannot do. We acknowledge that the result of our holding

is that Whitehall is permanently barred from asserting these claims against Georgia

Power, and we do not take that result lightly. Nonetheless, our case law is clear about

what a plaintiff seeking to avoid a statute of limitations bar must plead in a renewal

lawsuit. See e.g. Belcher, supra, 258 Ga. App. at 192. If the trial court has not taken

judicial notice of a prior lawsuit, then the plaintiff must affirmatively show in the

complaint that the renewal lawsuit is properly filed. Id.; Petkas, supra, 252 Ga. at 108.

This was not shown conclusively in this case. Belcher and similar cases provide

parties with the advantageous benefit of clarity with regard to pleading requirements

for filing for a renewal suit, however, when a party disregards the requirements

clearly stated by this Court, the harsh result of dismissal can result. Accordingly, the

trial court did not err.

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     2. In light of this holding, we need not address the timeliness of service of

process on Georgia Power.

     Judgment affirmed. Doyle, C. J., and Reese, J., concur.




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