Full Opinion

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 2 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. 3 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. 4 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 5 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 6 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. 7