SECOND DIVISION
DOYLE, P. J.,
DAVIS and WHITAKER, 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 28, 2026
In the Court of Appeals of Georgia
A26A1074. SCOTT v. BUMGARDNER.
DOYLE, Presiding Judge.
Marcus Scott IV sued Patrick Bumgardner for injuries allegedly sustained in a
car accident, thereafter dismissing the original complaint and bringing a renewal
action. Bumgardner moved to dismiss the renewal action, arguing that the original
complaint was served outside the statute of limitation. After a hearing, the trial court
granted the motion to dismiss. Scott appeals, contending that the trial court erred by
dismissing the renewal action based on a deficiency in service of the original complaint
because the renewal action was brought within six months of the voluntary dismissal
of the original complaint. For the reasons that follow, we reverse in part, vacate in
part, and remand the case for further proceedings consistent with this opinion.
“[W]e review the trial court’s ruling on a motion to dismiss under the de novo
standard of review.” Murphy v. Ticor Title Ins. Co., 316 Ga. App. 97, 98 (729 SE2d 21)
(2012) (quotation marks omitted).
So viewed, the record reflects that on April 30, 2021, Scott and Bumgardner
were involved in a car accident. On April 28, 2023, Scott filed a complaint against
Bumgardner. On June 26, 2023, Scott served Bumgardner with a copy of the
complaint. Bumgardner timely answered the complaint. Thereafter, Bumgardner filed
a motion to dismiss the action based on insufficiency of service of process, among
other things. On October 31, 2023, Scott voluntarily dismissed the action without
prejudice.
On February 15, 2024, Scott filed a renewal action. Bumgardner was served
with the renewal complaint on April 19, 2024. On May 17, 2024, Bumgardner filed an
answer to the renewal complaint, in which he raised the affirmative defenses of
insufficient service of process, statute of limitations, and laches, among others. On
May 23, 2024, Bumgardner filed a motion to dismiss the renewal action, in which he
argued that the original action was void because service of the original complaint did
not occur until after the expiration of the applicable statute of limitation, and Scott
had not shown reasonable diligence in effecting such service. Scott responded, arguing
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that the purported delay in service of the original complaint was not grounds for
dismissal of the renewed action, pursuant to Hobbs v. Arthur, 264 Ga. 359, 360-61 (444
SE2d 322) (1994).
The trial court convened a hearing on Bumgardner’s motion to dismiss the
renewal action on December 17, 2024. The trial court subsequently entered an order
granting the motion to dismiss. Although the trial court’s order recites that the
grounds for Bumgardner’s motion to dismiss were that service of the original
complaint was outside the statute of limitation and that Scott was therefore guilty of
laches, the trial court did not provide any findings of fact or conclusions of law in
support of its dismissal of the renewed action. Scott now appeals.
Scott contends that the trial court erred by dismissing the renewal action based
on a purported deficiency in service of the original complaint because the renewal
action was brought within six months of the voluntary dismissal of the original action.
We agree.
OCGA § 9-3-33 provides that “actions for injuries to the person shall be
brought within two years after the right of action accrues[.]” Here, Scott filed his
original complaint on April 28, 2023, within two years of the April 30, 2021 car
accident.
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Nevertheless, “the filing of a complaint without perfecting service does not
constitute a pending suit.” Hobbs, 264 Ga. at 360. OCGA § 9-11-4(c) provides that
although service of the complaint shall be made within five days of filing of the
complaint, “failure to make service within the five-day period will not invalidate a
later service.” Here, Scott served Bumgardner with a copy of the original complaint
on June 26, 2023, after the expiration of the statute of limitations.
“When the statute of limitation expires between the date of filing and the date
of service, whether that service relates back is dependent upon the length of time and
the diligence of the plaintiff.” Griffin v. Stewart, 362 Ga. App. 669, 673(1)(b) (870
SE2d 3) (2022) (citation and punctuation omitted). Bumgardner’s motion to dismiss
the original action alleged that Scott had not exercised diligence in effecting service
of the original complaint, but the trial court never ruled on the merits of this allegation
because Scott voluntarily dismissed the original action prior to a ruling on that motion.
[T]he renewal statute remains available to a plaintiff where, as
here, the original action is filed prior to the running of the statute of
limitation and proper service is not perfected on a defendant until after
the expiration of such statute, provided that the plaintiff voluntarily
dismisses the original action before the trial court rules that the case
should be dismissed for lack of diligence in perfecting service, in which
case the original action becomes void.
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Boyd v. Robinson, 299 Ga. App. 795, 796 (683 SE2d 862) (2009) (citation, punctuation,
and emphasis omitted). “A suit is ... void and incapable of renewal under OCGA § 9-2-61(a) if there has been a judicial determination that dismissal is authorized.
However, unless and until the trial court enters an order dismissing a valid action, it
is merely voidable and not void.” Hobbs, 264 Ga. at 360. Here, because the trial court
never entered an order dismissing the original action, any defects in service of the
original complaint rendered that suit voidable rather than void, and Scott was not
foreclosed from thereafter bringing a renewal action. See id. (“The renewal suit is an
action de novo. ... Unless the [original] case is an absolute nullity, the defective or
improper suit may be used to nurse the cause of action into full life in the proper form
and forum [in a renewal action].”) (citations omitted).
OCGA § 9-2-61(a) provides
[w]hen any case has been commenced ... within the applicable statute of
limitations and the plaintiff ... dismisses the same, it may be
recommenced in a court of this state ... within six months after the ...
dismissal, ... provided, however, if the dismissal ... occurs after the
expiration of the applicable period of limitation, this privilege of renewal
shall be exercised only once.
Here, Scott filed the renewal action on February 15, 2024, and served
Bumgardner with a copy of the renewal complaint on April 19, 2024, with both events
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occurring within six months of Scott’s voluntary dismissal of the original action.
Although the trial court’s order dismissing the renewal action made no explicit
findings of fact or conclusions of law as to service in either the original or renewal
action, its recitation of the grounds for the motion to dismiss suggest that it considered
delay in service of the original complaint as the basis for dismissing the renewal action.
To the extent that it did so, it erred. See Hobbs, 264 Ga. at 360-61 (“[I]nasmuch as
diligence in perfecting service of process in an action properly refiled under OCGA
§ 9-2-61(a) must be measured from the time of filing of the renewed suit, any delay in
service in a valid first action is not available as an affirmative defense in the renewal
action.”) But because the trial court’s order contains no findings of fact or
conclusions of law as to whether it relied on a purported delay in service of the
renewal complaint in dismissing the renewal action, we cannot ascertain the trial
court’s ruling or rationale as to whether the renewal action was timely filed and served
as required. Accordingly, we vacate the trial court’s order to the extent that it relied
on a purported delay in service of the renewal action. On remand, the trial court is
directed to consider whether Scott exercised reasonable diligence in effecting service
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of the renewal complaint in ruling on Bumgardner’s argument that Scott was guilty
of laches as to service in the renewal action.
Judgment reversed in part, vacated in part, and case remanded. Davis and
Whitaker, JJ., concur.
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