Do Weekends Count in the Deadline to File a Lawsuit?
O.C.G.A. § 9-2-61(a) provides:
When any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced . . . 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.
O.C.G.A. § 9-2-61(a) as it relates to relating back
On August 14, 2023, a bus accident victim sued the bus company for negligence and related claims, alleging she suffered injuries while boarding a bus on August 12, 2021. The plaintiff later voluntarily dismissed her action on February 15, 2024, and filed this case on August 12, 2024, as a renewal action under O.C.G.A. § 9-2-61 within six months of dismissing the first action. The trial court granted the bus company’s motion to dismiss her renewal action, finding that the plaintiff didn’t file her original action within the applicable statute of limitations, O.C.G.A. § 9-3-33, and was therefore barred from renewing it under O.C.G.A. § 9-2-61(a).
On appeal, the plaintiff argued that her original action was filed within the statute of limitations because the two-year statute of limitations would have expired on a Saturday, and under O.C.G.A. § 1-3-1(d)(3), she had until the following Monday to file her lawsuit.
The Court of Appeals Reverses
Judge J. Wade Padgett wrote that O.C.G.A. § 9-3-33 provides that actions for personal injury must be brought within two years after the right of action accrues. Under O.C.G.A. § 1-3-1(d)(3), when a period of time prescribed for “the exercise of any privilege” is measured in years, “the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege . . . shall have through the following Monday to exercise the privilege.”
This statute applies to personal injury actions governed by the two-year statute of limitation in O.C.G.A. § 9-3-33.
Here, the plaintiff was injured on August 12, 2021, and because August 12, 2023, fell on a Saturday, her complaint was timely filed on Monday, August 14, 2023. Absent a court-ordered dismissal, the plaintiff’ original action wasn’t void and thus capable of renewal under § 9-2-61(a).
The Court wasn’t convinced by the bus company’s argument that the plaintiff, in her renewal complaint, “failed to show this action is a valid renewal and the first action was not void.” As the Court of Appeals held in 2017:
it is necessary for the renewal petition to show affirmatively that the former petition was not a void suit, that it is such a valid suit as may be renewed under O.C.G.A. § 9-2-61, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition.
As such, when a renewal action has been filed in the same court as the original action, the trial court may take judicial notice of the physical record from the original action in determining if the renewed action met the tests for renewal.
Looking at the “renewal action notice”
Here, the plaintiff’s “renewal action notice” showed that the parties in the prior action and the renewal action were identical, and she also stated that all costs of the previously dismissed action had been paid. While the renewal action didn’t include a statement that the action is based on the same cause as the previous action, and she didn’t attach the original complaint or request the trial court to take judicial notice of the prior action, the trial court, in its order granting the bus company’s motion to dismiss, explicitly referred to the prior action (and its dismissal) that had been filed in the same court, confirming all dates stated in the renewal action notice, and stating that the complaint filed in the first action and the complaint in the renewal action “raise the same claims and causes of action against the bus company.”
Given the Georgia Supreme Court’s policy of looking to substantial justice and judicial economy rather than strict compliance with procedural technicalities, Judge Padgett and the appellate panel held that taken together, the plaintiff’s renewal action notice and the trial court’s order provided a sufficient showing of the validity of her renewal action.
Finally, the Court held that the bus company wasn’t entitled to dismissal simply because the plaintiff didn’t timely oppose its motion to dismiss. By failing to respond to a motion to dismiss for failure to state a claim, a party waives its right to present evidence in opposition to the motion, but the motion shouldn’t automatically be granted. Such evidence isn’t required here, Judge Padgett said, where the fact that August 14, 2023 was the Monday following August 12, 2023 isn’t susceptible to contrary proof. Therefore, the trial court erred to the extent it granted the bus company’s motion to dismiss because the motion was unopposed, and the trial court had no argument before it under which the plaintiff’s original action was timely filed such that this action was viable.
Because the bus company wasn’t entitled to dismissal of the action solely because the plaintiff failed to timely file a response to its motion to dismiss, and because the first action was timely filed and the renewal action was valid, the trial court erred in dismissing the plaintiff’ renewed complaint. The judgment was reversed. Cummings v. First Transit, 2025 Ga. App. LEXIS 334, 2025 LX 383267 (Ga. App. July 31, 2025).
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