Gullatt v. Omega Psi Phi Fraternity Inc.

Plaintiff's failure to file a written response to defendant's motion to dismiss based on the statute of limitation did not warrant dismissal because the complaint on its face showed that it was timely filed.

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Nathaniel Gullatt sued Omega Psi Phi Fraternity, Inc., David Mickel and Bernard Moore for personal injury. On Omega Psi Phi’s motion, the trial court dismissed the action “in its entirety” on the basis that Gullatt’s complaint was filed more than two years after the date of injury and was therefore “absolutely barred” by the applicable limitation period. Gullatt appeals, contending he filed his complaint within the time allowed.

1. A motion to dismiss barred claims is properly granted “when a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible.” Citations and punctuation omitted. Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815, 816 1 386 SE2d 551 1989; Bailey v. Kemper Group, 182 Ga. App. 604, 607 356 SE2d 695 1987. Gullatt’s complaint alleges that he was injured when he was struck by an automobile on April 1, 1998. Gullatt concedes that Georgia law required him to file his personal injury action “within two years after the right of action accrued.” OCGA § 9-3-33. The date two years after April 1, 1998, that is, April 1, 2000, fell on a Saturday. See OCGA § 1-3-1 d 3 “when a period of time measured in . . . years . . . is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted”. When “the last day falls on Saturday or Sunday, the party having any privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.” OCGA § 1-3-1 d 3. See Loveless v. Grooms, 180 Ga. App. 424, 425 349 SE2d 281 1986. Gullatt filed his complaint on April 3, 2000, the Monday following April 1, 2000. As a matter of law, Gullatt’s complaint was timely filed.

Gullatt v. Omega Psi Phi Fraternity Inc.

Plaintiff's failure to file a written response to defendant's motion to dismiss based on the statute of limitation did not warrant dismissal because the complaint on its face showed that it was timely filed.

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