FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 16, 2026
In the Court of Appeals of Georgia
A26A1584. TUCKER v. BROCKINGTON.
MCFADDEN, Presiding Judge.
This appeal asks whether the rule set forth in OCGA § 9-11-6(e), which adds
three days to the prescribed period for filing in certain circumstances, applies to
renewal actions. The trial court held it did not and, for that reason, dismissed plaintiff
Taurus Tucker’s renewal action against defendant Brandon Brockington as untimely
filed. We find no error and affirm. We do not consider Tucker’s alternative argument
that the case was in default and thus the trial court lacked authority to dismiss it,
because Tucker did not make that argument to the trial court.
1. Procedural history
The collision that is the subject of this personal injury action occurred on
December 17, 2021, and Tucker filed his original action in the State Court of Fulton
County on May 27, 2022. That action was dismissed without prejudice on January 21,
2025.
On July 24, 2025, Tucker filed the renewal action in the State Court of
Cherokee County. The renewal action was served on Brockington on July 25, 2025.
Brockington did not file an answer, but on September 5, 2025, he moved to dismiss
the renewal action on the ground that Tucker had not filed it within six months of the
date of dismissal. Brockington argued in his motion that the rule set forth in OCGA
§ 9-11-6(e), allowing three additional days for filing, did not apply, contrary to an
assertion Tucker made in his complaint in the renewal action. The trial court agreed
with Brockington and dismissed the renewal action as untimely.
2. Timeliness of renewal action
OCGA § 9-2-61(a) permits a plaintiff to recommence a timely filed action that
was later discontinued or dismissed “either within the original applicable period of
limitations or within six months after the discontinuance or dismissal, whichever is
later[.]” The two-year limitations period applicable to this action, see OCGA § 9-3-33,
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had run when Tucker filed his renewal action, and he admits that he did not file the
renewal action within six months of the date the original action was dismissed.
Nevertheless, he argues that his renewal action was timely filed, and thus the trial
court erred in dismissing the renewal action, because OCGA § 9-11-6(e) afforded him
three additional days to file it. We disagree.
OCGA § 9-11-6(e) provides, “Whenever a party has the right or is required to
do some act or take some proceedings within a prescribed period after the service of a
notice or other paper, other than process, upon him or her, and the notice or paper is
served upon the party by mail or e-mail, three days shall be added to the prescribed
period.” (Emphasis added.) As shown by the language emphasized above, this Code
section addresses situations in which the service of a notice or other paper triggers a
party’s time period for acting. See RLBB Acquisition v. Baer, 329 Ga. App. 483, 486-87
(765 SE2d 662) (2014). The Code section “is designed to maximize the probability
that a party will have the full time period within which to take action after he receives
the notice.” Akins v. Magbee Bros. Lumber & Supply Co., 152 Ga. App. 904, 906(1)
(264 SE2d 334) (1980) (discussing Ga. Code Ann. § 81A-106(e), the predecessor to
OCGA § 9-11-6(e)).
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Contrary to the position Tucker takes in his appellate brief, the six-month
period for filing his renewal action under OCGA § 9-2-61(a) was not triggered by the
service of notice or other paper. It was triggered by the entry of the order of dismissal.
See Gresham v. Harris, 329 Ga. App. 465, 469-70 (765 SE2d 400) (2014); Kimball v.
KGB Transp., 241 Ga. App. 511, 512 (527 SE2d 233) (1999) (physical precedent). We
have held that OCGA § 9-11-6(e) applies to the former (a prescribed period after
service of notice) but not the latter (a prescribed period after entry of an order). See
RLBB Acquisition, 329 Ga. App. at 486-87 (holding that, “[o]n its face, OCGA § 9-11-6(e) applies only to acts required ‘within a prescribed period after the service of a
notice or other paper[,]’ and thus does not apply to acts required within a prescribed
period after entry of an order). Because OCGA § 9-2-61(a) prescribes a six-month
period for filing a renewal action after entry of the dismissal order, rather than after
notice of that order, OCGA § 9-11-6(e) does not apply.
Consequently, OCGA § 9-11-6(e) did not afford Tucker an additional three
days to file his renewal action. The trial court did not err in holding that the renewal
action was untimely and in dismissing it for that reason.
3. Alternative argument
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Alternatively, Tucker argues that the trial court was not permitted to dismiss
his renewed complaint because the case was in default. But as Brockington points out,
Tucker “did not make this argument below. Accordingly, we cannot consider this
argument for the first time on appeal. We are limited to considering only those
grounds raised and ruled on below by the trial court and may not consider a basis for
appeal not presented at the trial level.” Cotton States Mut. Ins. Co. v. Stallings, 235 Ga.
App. 212, 213(a) (508 SE2d 688) (1998) (citation modified) (declining to consider the
merits of a plaintiff’s argument that a defendant who was in default lacked standing
to move to dismiss the action, because the plaintiff did not make that argument to the
trial court).
Judgment affirmed. Watkins and Padgett, JJ., concur.
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