This case stems from a motor vehicle collision that occurred on February 22, 2000. On February 22, 2002, the date the applicable statute of limitation was set to expire,1 Allen Boyd, Jr. filed a pro se action against Gary Wayne Robinson and Eckerd Corporation in the Superior Court of Cobb County. However, no attempts to serve Robinson and Eckerd were made until December 28, 2006, when Boyd retained counsel and the attorney sent a notice of the lawsuit and a request for waiver of summons. Service of process was perfected on Robinson and Eckerd in February 2007. Within four days after service of process, Boyd voluntarily dismissed the Cobb County action and re-filed it in the Superior Court of Fulton County. Robinson and Eckerd were both served with the Fulton County lawsuit on August 20, 2007, within the applicable limitation period for renewal actions.2 Robinson and Eckerd filed a motion for summary judgment, asserting, among other things, that Boyd’s claims are barred by judicial estoppel, his spoilation of evidence, and his failure to exercise due diligence in perfecting service of process. The trial court granted the motion for summary judgment, specifically finding that “this action is barred by the doctrine of laches, as Plaintiff’s five-year delay in pursuing this action has prejudiced the Defendants’ ability to prepare this case and violated their due process rights.” Boyd appeals. We are constrained to reverse.
We can not ascertain from the trial court’s order whether the judge relied upon Boyd’s failure to exercise diligence in perfecting service of process in the original suit or whether he relied upon the equitable doctrine of laches, but the ruling must fail on both grounds. First of all, OCGA § 9-2-61 a provides: When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . 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. Here, there is no dispute that Boyd commenced the initial action within the applicable statute of limitation period. Thus, he was able to voluntarily dismiss that lawsuit and use the renewal statute to “nurse the cause of action into full life”3 despite the fact that the renewal action occurred five years after the statute of limitation expired and the fact that neither Robinson nor Eckerd were aware of the existence of the original lawsuit until five years after it was filed. Unfortunately for the defendants in this case,
