Manfred Keais, as Next of Kin and as Administrator of the Estate of Eric Keais v. Othel D. Kelley, III

SECOND DIVISION
RICKMAN, P. J.,
GOBEIL and DAVIS, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules

June 17, 2026

In the Court of Appeals of Georgia
A25A2193. KEAIS v. KELLEY.
A26A0122. NEWSOME v. KEAIS.

DAVIS, Judge.

These appeals arise from a tragic fatal vehicular collision involving a vehicle

driven by Ralph Dover and Eric Keais, who was riding a bicycle along the same

roadway in the same direction as Dover. In Case No. A25A2193, Manfred Keais, as

next of kin and as administrator of his son Eric’s estate, appeals from the trial court’s

order granting Othel “Trey” Kelley III’s motion to dismiss. Keais argues that the trial

court erred in granting the motion to dismiss by (1) holding that the statutory duty to

render aid and support under OCGA § 40-6-270 only applied to drivers and cannot

be voluntarily undertaken by another; (2) failing to recognize that Kelley voluntarily

assumed the driver’s statutory duty to render aid; and (3) determining that a voluntary
undertaking requires a personal or financial interest. In Case No. A26A0122, James

Newsome appeals from the trial court’s order denying his motion to dismiss.

Newsome argues that the trial court erred by (1) determining that Keais’ renewal

action was not barred by the statute of limitations because the plaintiffs in the renewal

action and the original action are not the same; and (2) determining that Keais in his

individual capacity, was timely added as a plaintiff to the action. For the reasons that

follow, in Case No. A25A2193, we affirm the trial court’s order granting Kelley’s

motion to dismiss, and in Case No. A26A0122, we affirm the trial court’s order in part

and reverse it in part.

“We review de novo the trial court’s order granting a motion to dismiss for

failure to state a claim. We take the allegations in the complaint as true and resolve all

doubts in favor of the plaintiff.” Norris v. Atlanta Braves, Inc., 376 Ga. App.

663,663–64 (920 SE2d 717) (2025).

The factual allegations of Keais’ renewal complaint and the exhibit attached and

incorporated thereto show the following.1 On September 11, 2019, Ralph Dover

1
We note that a trial court “may consider exhibits attached to and incorporated
into the pleadings when ruling upon a motion to dismiss.” Dial v. Burge, 372 Ga. App.
682, 683 (905 SE2d 872) (2024).
2
attended a county fair and then drove to Cedartown, Georgia, in his vehicle. Dover

drove along North Main Street, and at the same time, Eric rode his bicycle on North

Main Street in the same direction as Dover. Dover’s vehicle struck Eric from behind,

which caused him to be thrown onto the hood and windshield of Dover’s vehicle.

Dover’s vehicle sustained extensive damage from the impact, including a shattered

windshield and a caved-in hood and fender. Dover, however, did not stop his vehicle,

call 911, or look for Eric. Instead, he called Kelley, an attorney and member of the

Georgia House of Representatives, and asked Kelley to meet him at a gas station.2

After Kelley arrived at the gas station, Dover took him to the area of the collision

where Kelley observed a bicycle on the side of the road. Kelley did not call 911 but

instead called a senior partner at his law firm.

Kelley also called Newsome, who was the Chief of the Cedartown Police

Department. Kelley told Newsome that Dover hit “something” with his car and that

he observed a bicycle in a ditch. According to Keais, the Cedartown Police

Department’s standard operating procedures require officers to notify dispatch when

alerted about a seriously injured person. Newsome, however, did not notify dispatch

2
Kelley was also the Municipal Court Solicitor for the City of Cedartown.
3
and instead called Officer Joshua Turner of the Cedartown Police Department and

told him that he feared “that a person had been hit,” and he told Officer Turner to

meet Kelley at the scene where the bicycle was found.

Officer Turner went to the scene and met with Kelley and Dover, and Dover

told him that he hit “a deer” or “possibly a person.” Officer Turner noted the

damage to Dover’s vehicle and then searched the roadway. Officer Turner located a

red mountain bicycle, and approximately 20 feet from the bicycle, he observed Eric

down an embankment in a ditch laying on his back with severe injuries. Officer Turner

called for fire rescue and EMS, but Eric ultimately succumbed to his injuries later that

evening, and his death was ruled a vehicular homicide. Dover was later convicted of

leaving the scene of an accident resulting in death (OCGA § 40-6-270(b)) and was

sentenced to five years’ imprisonment.

On September 13, 2021, Keais filed a complaint “individually and as the natural

parent and as administrator of the estate of Eric Christopher Keais” against Dover,

Kelley in his individual and official capacities,3 Newsome in his individual and official

capacities, the Cedartown Police Department, and the City of Cedartown in the

3
The suit against Kelley in his official capacity was based on his status as a
member of the Georgia House of Representatives.
4
United States District Court for the Northern District of Georgia. Keais subsequently

filed an amended complaint “individually and as administrator of the estate of Eric

Christopher Keais,” and filed a second amended complaint on June 22, 2022, “as

administrator of the estate of Eric Christopher Keais,” and asserted claims for

wrongful death against all defendants, negligent infliction of emotional distress against

Dover, intentional infliction of emotional distress against Kelley and Newsome,

negligent hiring, training, and retention against the City of Cedartown, and violations

of civil rights against the City of Cedartown, Kelley, and Newsome.4 The district court

later entered an order dismissing the action on October 25, 2022. The case caption of

the district court’s dismissal order listed the case caption as “MANFRED KEAIS,

Individually and as the Natural Parent and as Administrator of Estate of Eric

Christopher Keais, Deceased.”

Keais, “as next of kin and as administrator of Eric’s estate,” filed the instant

renewal complaint against Dover, Kelley in his individual capacity, and Newsome in

his individual capacity on April 25, 2023, in the Superior Court of Polk County,

asserting claims for wrongful death and attorney fees against all defendants, and

4
Keais also sought damages for violations of Eric’s civil rights, punitive
damages, and attorney fees.
5
punitive damages against Dover and Newsome. Kelley and Newsome answered the

complaint, and they filed separate motions to dismiss. Kelley argued that Keais’

complaint was due to be dismissed because he owed no duty to rescue or render aid

to Eric.5 In response, Keais argued that dismissal of his complaint was improper

because Kelley owed a duty to render aid under the voluntary undertaking doctrine.

In Newsome’s motion, he argued that dismissal of the complaint was warranted

because Keais initiated the original suit in the district court as “administrator of the

estate of Eric Keais” but filed the renewal complaint as “next of kin and as

administrator of the estate of Eric Keais,” and thus the action was not limited to the

same parties as the original suit. He also argued that Keais lacked standing to file a

wrongful death claim as the administrator of Eric’s estate. Keais responded that

dismissal was improper because case captions are not a part of the petition and that

Georgia is a notice pleading jurisdiction that only requires parties to give a general

nature of the claims.

5
He also argued that because the wrongful death claim should be dismissed,
Keais’ derivative claim for attorney fees under OCGA § 13-6-11 should also be
dismissed.
6
After hearings, the trial court granted Kelley’s motion to dismiss,6 determining

that Kelley had no duty to render aid to Eric and that OCGA § 40-6-270 only required

the driver of the vehicle to render aid. But the trial court denied Newsome’s motion

to dismiss, determining that the action involved substantially the same parties and the

same claims. We granted Newsome’s application for an interlocutory appeal, and

Keais filed his notice of appeal from the grant of Kelley’s motion to dismiss.

Case No. A25A2193

1. As a preliminary matter, although not raised by either party, we address our

jurisdiction over Keais’ appeal. See Clay v. Douglasville-Douglas County Water & Sewer

Auth., 357 Ga. App. 434, 436(1) (848 SE2d 733) (2020) (“[I]t is our duty to inquire

into our jurisdiction in any case in which there may be a doubt about the existence of

such jurisdiction.”). We begin our analysis by noting that “[t]he Appellate Practice

Act begins with the command that this article shall be liberally construed so as to bring

about a decision on the merits of every case appealed. In so prescribing, we have held,

the Act disfavors multiple appeals and piecemeal litigation.” Sewell v. Cancel, 295 Ga.

Ga. 235, 237 (759 SE2d 485) (2014) (citation modified).

6
The transcript of the hearings on the motions to dismiss are not included in
the records on appeal.
7
“As a general rule, a direct appeal requires that the judgment or order appealed

be final, which means the case is no longer pending in the court below.” Harmon v.

Progressive Premier Ins. Co. of Illinois, 364 Ga. App. 809, 810 (874 SE2d 163) (2022).

In a case involving multiple parties or multiple claims, a decision
adjudicating fewer than all the claims or the rights and liabilities of less
than all the parties is not a final judgment. In such circumstances, there
must be an express determination under OCGA § 9–11–54(b)[7] or there
must be compliance with the interlocutory appeal requirements of
OCGA § 5–6–34(b). Where neither of these code sections are followed,
the appeal is premature and must be dismissed.

Shoenthal v. Shoenthal, 333 Ga. App. 729, 730 (776 SE2d 663) (2015). In this case,

Keais named Dover, Newsome, and Kelley as defendants, and although the trial court

dismissed Keais’ claims against Kelley, Keais’ claims against Dover and Newsome

remained pending. Thus, because Keais’ claims remained pending, Keais did not

follow the interlocutory appeal procedures, and the trial court did not direct the entry

of final judgment in accordance with OCGA § 9-11-54(b), the order granting Kelley’s

7
This statute states in part that “the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay and upon an express
direction for the entry of judgment.” OCGA § 9-11-54(b).
8
motion to dismiss was not a final order for purposes of a direct appeal. See Shoenthal,

333 Ga. App. at 730 (dismissing appeal for lack of jurisdiction because the trial court’s

order was not final under OCGA § 5-6-34 where claims remained pending in the trial

court, the plaintiffs did not follow the interlocutory procedures, and the trial court did

not direct entry of a final judgment under OCGA § 9-11-54(b)).

But it is a well settled principle that “pleadings, motions, and orders are to be

construed according to their substance and function and not merely as to their

nomenclature, being always mindful to construe such documents in a manner

compatible with the best interest of justice.” Corken v. Maynard, 374 Ga. App. 777,

780(1)(a) n.3 (913 SE2d 876) (2025). To that end, OCGA § 5-6-38 provides in part

that “[i]n civil cases, the appellee may institute [a] cross appeal by filing notice thereof

within 15 days from service of the notice of appeal by the appellant; and the appellee

may present for adjudication on the cross appeal all errors or rulings adversely

affecting him.” OCGA § 5-6-38(a). In construing OCGA § 5-6-38, we have held that

a party is “entitled to file a cross appeal ... seeking review of an interlocutory matter

so long as the main appeal is properly before us,” and where we have granted an

application for an interlocutory appeal, jurisdiction was proper over a cross appeal.

9
Ga. Dep’t of Transp. v. Strickland, 279 Ga. App. 753, 755–56(3) (632 SE2d 416) (2006).

In this same vein, both this Court and the Supreme Court of Georgia have deemed

appeals from non-final orders “appealable as a matter of right if it is classifiable as a

cross appeal to an appealable order.” McClure v. Gower, 259 Ga. 678, 680–81(2) (385

SE2d 271) (1989) (construing a non-final order as a cross appeal where the appeal was

taken from the main appeal that was properly before the Court); Buschel v.

Kysor/Warren, 213 Ga. App. 91, 93(3) (444 SE2d 105) (1994) (denying motion to

dismiss cross appeal for failure to follow the discretionary appeal procedures because

the order was appealable as a matter of right under OCGA § 5-6-38 because the main

appeal was properly before the Court).

Here, we granted Newsome’s application for interlocutory review of the trial

court’s order denying his motion to dismiss on July 21, 2025, and Newsome timely

filed his notice of appeal on July 25, 2025. Although Keais filed his notice of appeal on

July 3, 2025, which was before Newsome filed his notice of appeal, Keais’ notice of

appeal ripened once Newsome filed his notice of appeal. See Wellman v. JP Morgan

Chase Bank, N. A., 347 Ga. App. 118, 118 n.1 (817 SE2d 567) (2018) (determining that

jurisdiction was proper to review order granting motion to dismiss even though the

10
appellant filed his notice of appeal before the trial court entered its order because the

notice of appeal “ripened” when the trial court’s order was entered). And because

Newsome’s interlocutory appeal is properly before this Court, Keais’ appeal from the

order granting Kelley’s motion to dismiss is properly before us as a cross appeal. See

Think Dev. Sys., Inc. v. Cloudious, LLC, 369 Ga. App. 58, 59 n.1 (891 SE2d 426)

(2023) (rejecting the claim that we lacked jurisdiction over the trial court’s orders

denying a motion to strike and a motion for summary judgment because the orders

were reviewable as a cross appeal since the main appeal was properly before the

Court). Accordingly, we have jurisdiction over Keais’ appeal.

2. Turning to the merits of Keais’ cross appeal, in three related claims of error,

he argues that the trial court erred by granting Kelley’s motion to dismiss because the

statutory duties to render aid under OCGA § 40-6-270 are not limited to drivers of

motor vehicles, Kelley was not required to have a personal or financial interest to be

liable on his wrongful death claim, and Kelley voluntarily assumed Dover’s duties to

render aid and report the collision. After careful consideration of the relevant law, we

disagree.

The well-established test that must be satisfied before a motion to
dismiss can be granted is a demanding one: A motion to dismiss for

11
failure to state a claim upon which relief may be granted should not be
sustained unless (1) the allegations of the complaint disclose with
certainty that the claimant would not be entitled to relief under any state
of provable facts asserted in support thereof; and (2) the movant
establishes that the claimant could not possibly introduce evidence
within the framework of the complaint sufficient to warrant a grant of the
relief sought.

Norris, 376 Ga. App. at 665.

(a) Wrongful Death. Wrongful death actions are governed by Georgia’s

Wrongful Death Act (“the Act”), OCGA § 51-4-1 et seq. OCGA § 51-4-4 generally

allows a parent to recover for the homicide of a child.8 The term “homicide”

“includes all cases in which the death of a human being results from a crime, from

criminal or other negligence, or from property which has been defectively

manufactured, whether or not as the result of negligence.” OCGA § 51-4-1(2). Here,

Keais argues that Kelley is liable on his wrongful death claim because Kelley

voluntarily assumed Dover’s obligations to render aid under OCGA § 40-6-270 and

failed to do so. To analyze whether Kelley falls within the ambit of OCGA § 40-6-270,

8
See also OCGA § 19-7-1(c)(2) (generally permitting a parent to recover for the
death of a child).
12
we begin by first noting the general principles applicable to issues involving statutory

construction:

In considering the meaning of a statute, our charge as an appellate court
is to presume that the General Assembly meant what it said and said
what it meant. Toward that end, we must afford the statutory text its
plain and ordinary meaning, consider the text contextually, read the text
in its most natural and reasonable way, as an ordinary speaker of the
English language would, and seek to avoid a construction that makes
some language mere surplusage. And when the language of a statute is
plain and susceptible of only one natural and reasonable construction,
courts must construe the statute accordingly.

Catoosa County v. Rome News Media, 349 Ga. App. 123, 126–27 (825 SE2d 507) (2019)

(citation modified).

Turning to the statute, OCGA § 40-6-270 states in part that

[t]he driver of any vehicle involved in an accident resulting in injury to or
the death of any person or in damage to a vehicle which is driven or
attended by any person shall immediately stop such vehicle at the scene
of the accident or shall stop as close thereto as possible and forthwith
return to the scene of the accident and shall: ... [r]ender to any person
injured in such accident reasonable assistance, including the
transporting, or the making of arrangements for the transporting, of such
person to a physician, surgeon, or hospital for medical or surgical
treatment if it is apparent that such treatment is necessary or if such

13
transporting is requested by the injured person; and [w]here a person
injured in such accident is unconscious, appears deceased, or is
otherwise unable to communicate, make every reasonable effort to
ensure that emergency medical services and local law enforcement are
contacted for the purpose of reporting the accident and making a request
for assistance.

OCGA § 40-6-270(a)(3), (4) (emphasis supplied). The term “driver” as used in the

statute “means every person who drives or is in actual physical control of a vehicle.”

OCGA § 40-1-1(14). And in construing OCGA § 40-6-270, we have held that the

obligations contained in the statute apply solely to the “driver” of the vehicle at the

time of an accident. See, e.g., Johnson v. State, 360 Ga. App. 63, 65(1) (860 SE2d 626)

(2021) (stating that a violation of OCGA § 40-6-270(a) requires a showing that “the

driver of a vehicle involved in an accident ... knowingly failed to stop at the scene[.]”)

(citation modified); Purvis v Steve, 284 Ga. App. 116, 119–20(2) (643 SE2d 380)

(2007) (“OCGA § 40-6-270 ... requires that the driver of a vehicle involved in an

accident resulting in injury shall, among other things, stop and render to any person

injured in such accident reasonable assistance, including the transporting, or the

making of arrangements for the transporting, of such person to a physician, surgeon,

or hospital for medical or surgical treatment.”) (citation modified); Loudermilk Enter.,

14
Inc. v. Hurtig, 214 Ga. App. 746, 749 (449 SE2d 1410 (1994) (physical precedent only)

(concluding the driver’s employer could not be held liable for violating OCGA § 40-6-

270 because the requirements of the statute imposed a duty solely on the driver).

Here, the complaint shows, and the parties agree, that Kelley did not drive or

have actual physical control of the vehicle at the time it struck Eric. Consequently,

Kelley does not fall within the ambit of the statute because the requirements of the

statute apply only to the driver, i.e., the person who drove the vehicle or had actual

physical control of the vehicle at the time of an accident. And critically, there is no

language in the statute stating that parties other than the driver are required to comply

with the terms of the statute. S. States Chem., Inc. v. Tampa Tank & Welding, Inc., 316

Ga. 701, 713(2) (888 SE2d 553) (2023) (“[W]here the language of a statute is plain and

unambiguous, judicial construction is not only unnecessary but forbidden.”). To

adopt Keais’ broad interpretation of OCGA § 40-6-270(a) would require us to ignore

the legislature’s explicit use and definition of the term “driver,” and presume that the

legislature intended for parties other than the driver to abide by the requirements of

the statute, which we cannot do. See Five Star Athlete Mgmt., Inc. v. Davis, 355 Ga.

App. 774, 780(2) (845 SE2d 754) (2020) (rejecting the appellee’s interpretation of a

15
statute which broadened the definition of a statutory term because adopting the

appellee’s interpretation would have required us to ignore the express language of the

statute). See also Hill v. Kemp, 366 Ga. App. 19, 25(1) (880 SE2d 590) (2022)

(“Under our system of separation of powers this Court does not have the authority

to rewrite statutes. The separation of powers prohibits us from adding a line to a law

enacted by the legislature.”) (citation modified).9

Moreover, to the extent that Keais argues that Kelley is liable under an agency

theory because he “assumed” Dover’s duty to call 911 and report the accident by

acting as his agent, advisor, or confidant, that is a misstatement of agency law. “A

duty is not imposed upon the agent by virtue of his relation with the principal, but is

imposed upon him by law as a responsible individual in common with other members

of society.” Williams v. Kasulka Props., LP, 370 Ga. App. 653, 659(3) (898 SE2d 843)

(2024) (citation modified). Indeed, “it is generally recognized that an agent is not

liable to third persons for the failure of the principal to discharge affirmative duties

9
We also reject Keais’ claim that the failure to adopt his interpretation of
OCGA § 40-6-270 impermissibly preempts common law. “[T]he long-established
general rule is that a person is under no duty to rescue another from a situation of peril
which the former has not caused.” Dutt v. Mannar & Co., LLC, 354 Ga. App. 565,
566(2) (841 SE2d 132) (2020) (quotation marks omitted).
16
which the principal may owe.” Verddier v. Neal Blun Co., 128 Ga. App. 321, 322–23

(196 SE2d 469) (1973) (emphasis supplied). As stated above, the duty to call 911

belonged to Dover, the alleged principal, and Kelley as an alleged agent is therefore

not liable for Dover’s failure to fulfill this duty.

Nevertheless, Keais argues that public policy considerations require reversal of

the trial court’s dismissal order. Specifically, relying on the Supreme Court of

Georgia’s decision in Fortner v. Town of Register, 278 Ga. 625 (604 SE2d 175) (2004),

he argues that OCGA § 40-6-270 was enacted to promote public safety and thus

should be broadly construed. OCGA § 40-6-270, however, was not at issue in Fortner.

Moreover, although the Fortner Court stated that “legislation intended to promote the

public safety should receive a reasonable and practical interpretation to that end[,]”

Fortner, 278 Ga. at 527(2), there is no language in Fortner that would support the

argument that appellate courts should interpret and construe statutes in a manner that

is inconsistent and unsupported by the express language and terms of a statute. To the

contrary, our Supreme Court has unequivocally stated that “if the statutory text is

clear and unambiguous, we attribute to the statute its plain meaning, and our search

for statutory meaning is at an end.” Deal v. Coleman, 294 Ga. 170, 173(1)(a) (751 SE2d

17
337) (2013) (quotation marks omitted). Our duty as an appellate court is “to interpret

the laws as they are written. We leave political questions to the political branches, and

the policy arguments in this case are properly directed to the General Assembly.” Id.

at 174(1)(a) n.11 (quotation marks omitted).

Furthermore, to the extent that Keais argues that dismissal of his claims against

Kelley was improper based on the voluntary undertaking doctrine, this claim also fails.

Under this principle, one who undertakes to do an act or perform a
service for another has the duty to exercise care, and is liable for injury
resulting from his failure to do so, even though his undertaking is purely
voluntary or even though it was completely gratuitous, and he was not
under any obligation to do such act or perform such service, or there was
no consideration for the promise or undertaking sufficient to support an
action ex contractu based thereon. When one undertakes an act that he
has no duty to perform and another person reasonably relies upon that
undertaking, the act must generally be performed with ordinary or
reasonable care.

Norman v. Buccina, 374 Ga. App. 772, 775 (913 SE2d 865) (2025). “[A]n injured

person seeking to impose liability upon another for the negligent performance of a

voluntary undertaking must show either detrimental reliance or an increased risk of

18
harm.” Id. (citation modified). But we have cautioned that the voluntary undertaking

doctrine

applies only to the extent that the alleged negligence of the defendant
exposes the injured person to a greater risk of harm than had existed
previously. Accordingly, this principle applies when a nonhazardous
condition is made hazardous through the negligence of a person who
changed its condition or caused it to be changed. Liability does not attach
for failing to decrease the risk of harm. Put another way, the mere failure
to abate a hazardous condition — without making it worse — does not trigger
the application of the voluntary undertaking doctrine.

Id. at 776 (emphasis supplied).

Here, Keais’ wrongful death claim against Kelley is based on Kelley’s failure

to render aid and contact emergency services after the accident. Keais’ complaint

alleged that Kelley “assumed control of Dover’s conduct” by advising Dover, and

that by assuming control of Dover’s conduct, he had a duty to exercise reasonable care

to prevent further harm to Eric. Keais further alleged Kelley’s report of the incident

through informal means “created an unreasonable risk of harm to Eric[,]” and

“delayed life-saving medical treatments to Eric” and “contributed to his bodily

injuries.”

19
We conclude that the trial court did not err by determining that Keais’ wrongful

death claim failed as a matter of law because the voluntary undertaking doctrine did

not apply. As shown above, Keais’ complaint alleges that Kelley’s failure to report the

accident after speaking with Dover delayed emergency personnel from responding to

the scene which subjected Eric to an unreasonable risk of harm. But the allegations of

the complaint disclose with certainty that the voluntary undertaking doctrine does not

apply because it was Officer Turner, not Kelley, who found Eric laying in a ditch down

an embankment and gravely injured, and thus Keais cannot introduce any evidence

within the framework of his complaint to show that Eric reasonably relied on Kelley

to perform any duties. See Norman, 374 Ga. App. at 775 (plaintiff’s parents could not

establish detrimental reliance in wrongful death action involving their daughter where

the daughter became unconscious before the defendant tried to wake her up). Thus,

within the framework of the complaint, there is simply nothing to show that Kelley

made any affirmative acts to help Eric.

Furthermore, Keais cannot introduce any evidence to show that Kelley’s failure

to act resulted in an increased risk of harm to Eric. The failure to act is an act of

nonfeasance, “and [Kelley] was under no statutory or common law obligation to

20
perform the act of calling 911. [Thus,] [a]s a matter of law, [Keais] cannot establish

any breach of duty in regard to the alleged nonfeasance.” Id. at 776–77.10 See also Dutt

v. Mannar and Co., LLC, 354 Ga. App. 565, 567(2) (841 SE2d 132) (2020) (voluntary

undertaking doctrine did not apply to plaintiff’s claim against a personal trainer based

on the trainer’s failure to call 911 because the failure to act in the absence of a

statutory or common law duty to act was mere nonfeasance which could not, as a

matter of law, trigger the voluntary undertaking doctrine).11 We do not reach our

conclusion in this matter lightly given the facts of this case. But embedded deep within

our Court’s nature and structure is the fundamental principle that we are a “court[]

for the correction of errors of law committed in the trial court.” Wakefield v. Kiser, 371

10
We reject Keais’ argument that the trial court determined that the voluntary
undertaking doctrine did not apply because the doctrine requires a showing that the
party doing the undertaking must have a personal or financial interest in the
undertaking. In context, it is clear that the court merely distinguished the cases relied
upon by Keais which involved parties who had a financial or personal interest in the
voluntary undertaking. But even if the trial court did conclude that the voluntary
undertaking doctrine did not apply on this basis, “[t]his Court may affirm a trial
court’s grant of a motion to dismiss if it is right for any reason, so long as the argument
was fairly presented to the court below.” Alred v. Ga. Pub. Defender Council, 362 Ga.
App. 465, 471 n.13 (869 SE2d 99) (2022).
11
And again, to the extent that Keais argues that Kelley acted as Dover’s agent,
“an agent is ordinarily not liable [to third parties] for mere nonfeasance.” Greene v.
Piedmont Janitorial Servs., Inc., 220 Ga. App. 743, 744(2) (470 SE2d 270) (1996).
21
Ga. App. 113, 114(1) (899 SE2d 757) (2024). And for all of the reasons stated above,

we conclude that the trial court did not err by granting the motion to dismiss.

(b) Attorney Fees. “A prerequisite to any award of attorney fees under OCGA

§ 13-6-11 is the award of damages or other relief on the underlying claim.” N.

Walhalla Prop., LLC v. Kennestone Gates Condo. Ass’n, LLC, 358 Ga. App. 272, 276(4)

(855 SE2d 35) (2021). Because Keais’ underlying wrongful death claim fails, Keais’

derivative claim for attorney fees under OCGA § 13-6-11 also fails. See id. at 276–77

(plaintiff’s claim for attorney fees under OCGA § 13-6-11 failed where the underlying

claims failed).12

Case No. A26A0122

3. In this appeal, Newsome argues that the trial court erred by denying his

motion to dismiss. Specifically, he argues that the plaintiffs in the original suit are not

the same as in the renewal action, Keais as next of kin is an untimely added party to

the renewal action, and the entire complaint against him should be dismissed. We

conclude that the parties in the renewal action are the same as in the original action,

12
We note that Kelley has filed a motion for attorney fees and expenses
pursuant to Court of Appeals rule 7(e)(2). Upon consideration of Kelley’s motion, the
motion is hereby denied.
22
but Keais should have been dismissed from the action in his capacity as the

administrator of Eric’s estate.

(a) Renewal. Georgia’s renewal statute, OCGA § 9-2-61(a), states in part:

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 or
in a federal court either within the original applicable period of
limitations or within six months after the discontinuance or dismissal,
whichever is later, subject to the requirement of payment of costs in the
original action as required by subsection (d) of Code Section 9-11-41[.]

To rely on the renewal statute to recommence a suit that is otherwise barred by the

statute of limitation,

the renewal petition must show affirmatively that the former petition was
not a void suit, that it is such a valid suit as may be renewed under
OCGA § 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.

Strickland v. Geico Gen. Ins. Co., 358 Ga. App. 158, 159 (854 SE2d 348) (2021). In

construing OCGA § 9-2-61, we have been clear that “[a] properly filed renewal action

stands on the same footing as the original action with respect to statutes of limitation.

23
Accordingly, if a renewal action is properly filed within six months after dismissal of

the original action, it remains viable even though the statute of limitation may have

expired.” Coen v. Aptean, Inc., 356 Ga. App. 468, 470(1) (847 SE2d 835) (2020). But

if the statute of limitation has expired, “[t]he new petition must be substantially the

same as the original as to the essential parties.” Aaron v. Jekyll Island–State Park

Auth., 348 Ga. App. 332, 333 (822 SE2d 829) (2019). In determining whether the

parties are substantially the same in the renewal action as in the original action, we

have looked to the case captions of the pleadings to assist in our analysis. See, e.g.,

Cummings v. First Transit, Inc., 376 Ga. App. 440, 442–43 (919 SE2d 483) (2025)

(examining the case captions and civil action numbers in determining that the renewal

action was a valid action); Strickland, 358 Ga. App. at 159 (same).

Here, Keais filed the original wrongful death action in district court

“individually and as the natural parent and as administrator of the estate of Eric

Christopher Keais.” The case caption for Keais’ second amended complaint in the

district court, which was filed after the statute of limitation expired,13 listed Keais

13
As stated above, the accident occurred on September 11, 2019, and thus the
statute of limitation would have originally expired on September 11, 2021. See Toomer
v. Metro Ambulance Svcs., Inc., 364 Ga. App. 469, 474(2) (875 SE2d 479) (2022)
(stating that the two-year statute of limitation for personal injury claims applies to
24
solely as the “administrator” of Eric’s estate. In dismissing the action, however, the

case caption for the district court’s order listed the case as “MANFRED KEAIS,

Individually and as the natural parent and as administrator” of Eric’s estate, and Keais

filed the renewal complaint in the superior court as “next of kin and administrator”

of Eric’s estate.

In light of this record, we conclude that the plaintiffs in the renewal action are

the same as the plaintiffs in the original action. As shown above, Keais originally filed

the action in his individual and representative capacities, and the case caption in the

district court’s dismissal order listed Keais as the plaintiff in both his individual and

representative capacities of Eric’s estate. While it is true, as Newsome points out, that

the case caption for Keais’ second amended complaint only listed Keais in his capacity

as administrator, Newsome does not point to anything in the record, and we have not

uncovered anything in the record, that shows that Keais was dropped or dismissed

wrongful death claims). But because “the clock” for the statute of limitation began to
run on September 11, 2019, which was before our Supreme Court issued its orders
suspending the statute of limitations between March 14, 2020, and July 14, 2020, due
to the COVID-19 pandemic, Keais was entitled to an additional 122 days to file his
action. Leggat v. Navicent Health, Inc., 369 Ga. App. 731, 735–36(1) (893 SE2d 438)
(2023).
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from the district court action in his individual capacity,14 especially since the district

court’s dismissal order still listed Keais as the plaintiff “[i]ndividually and as the

natural parent and as administrator” of Eric’s estate. Therefore, the trial court did not

err by denying Newsome’s motion to dismiss on this basis. See Cummings, 376 Ga.

App. 440 (concluding that the plaintiff filed a valid renewal action where the case

captions of the original action and the renewal action showed that the suit involved the

same parties).

(b) Standing. We agree with Newsome, however, that the trial court should

have dismissed Keais in his capacity as administrator from the action. “Because there

is no common right to file a claim for wrongful death, the Act is in derogation of

common law, and its scope must be limited in strict accordance with the statutory

language used therein.” Ne. Ga. Med. Ctr., Inc. v. Metcalf, 363 Ga. App. 676, 677(1)

14
Although Newsome points to Keais’ motion to file second amended
complaint in the district court action which lists Keais solely in his capacity as
administrator, we note that there is nothing in Keais’ motion where he requested
permission to amend his complaint based on a change in party status. Instead, the
record shows that Keais desired to amend his complaint because (1) he learned of
possible new information that Kelley was, in fact, in the vehicle at the time of the
accident; (2) Kelley was not performing official duties as alleged in his previous
complaint; and (3) other factual assertions that were made in his previous complaint
needed to be revised.
26
(871 SE2d 4540 (2022) (quotation marks omitted), overruled on other grounds by

Hamon v. Connell, 315 Ga. 760, 766(2) n.11 (883 SE2d 785) (2023). And we have

emphasized that we “cannot create a judicial exception to the statute establishing who

may bring a wrongful death action.” Garner v. Acadia Healthcare Co., Inc., 370 Ga.

App. 146, 149(2) (894 SE2d 204) (2023).

For standing of an administrator or executor of an estate to bring a wrongful

death claim, OCGA § 51-4-5(a) states in part: “When there is no person entitled to bring

an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the

administrator or executor of the decedent may bring an action for and may recover and

hold the amount recovered for the benefit of the next of kin.” (Emphasis supplied).

Under OCGA § 51-4-2(a), “[t]he surviving spouse or, if there is no surviving spouse,

a child or children, either minor or sui juris, may recover for the homicide of the

spouse or parent the full value of the life of the decedent[.]” As stated above in

division 2(a), a parent’s right to recover for the death of their child is authorized by

OCGA § 51-4-4, which states, “[t]he right to recover for the homicide of a child shall

be as provided in Code Section 19-7-1 and Code Section 53-1-5.”15 Pertinently, OCGA

15
OCGA § 53-1-5 concerns issues of forfeiture of rights for individuals who kill,
conspire to kill, or procure someone’s death.
27
§ 19-7-1(c)(2) provides in part: “If the deceased child does not leave a spouse or child, the

right of recovery shall be in the parent or parents[.]” (Emphasis supplied). Thus, in

construing these statutes, we have stated that the order for standing to bring a

wrongful death claim is as follows:

The surviving spouse or, if there is no surviving spouse, a child or
children, either minor or sui juris, may recover for the [death] of the
spouse or parent the full value of the life of the decedent, as shown by the
evidence. Where a decedent has no surviving spouse or child, a surviving
parent may bring suit. And when there is no person entitled to bring an
action for the wrongful death of a decedent, the administrator or
executor of the decedent’s estate may bring the claim. In a typical case,
therefore, a spouse has exclusive standing to bring a claim for the
wrongful death of the decedent; if the decedent is unmarried, the
decedent’s children may recover, followed by the decedent’s parents and
(if the decedent has no surviving spouse, children, or parents) his or her
estate.

Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 379(1) (837 SE2d 529) (2020).

Applying the aforementioned principles, the trial court erred by denying

Newsome’s motion to dismiss as it pertained to Keais in his capacity as administrator

of Eric’s estate. As stated above, Keais filed the renewal complaint “as next of kin and

as administrator of Eric’s estate.” In the complaint, Keais stated that he was Eric’s

28
father and the executor of his estate, and asserted that at the time of Eric’s death,

“Eric was unmarried and had no children.” Thus, Keais, in his individual capacity as

Eric’s father was entitled to bring a wrongful death action under OCGA § 51-4-4. And

because Keais was entitled to bring a wrongful death action in his individual capacity,

he could not also bring suit in his capacity as the administrator of Eric’s estate. See

Auto Doors, Inc. of Ga. v. Zivoluba, 277 Ga. App. 288, 289 (626 SE2d 256) (2006)

(parent lacked standing to bring wrongful death action as administrator of son’s estate

because they could have brought the action in their individual capacity under OCGA

§ 51-4-4). Therefore, the trial court erred by denying Newsome’s motion to dismiss

Keais in his capacity as the administrator of Eric’s estate.

Accordingly, for the foregoing reasons, in Case No. A25A2193, we affirm the

trial court’s order granting Kelley’s motion to dismiss. In Case No. A26A0122, we

affirm the portion of the trial court’s order denying Newsome’s motion to dismiss

Keais in his capacity as next of kin, but we reverse the portion of the order denying the

motion to dismiss Keais in his capacity as administrator of Eric’s estate.

Judgment affirmed in Case No. A25A2193. Judgment affirmed in part and reversed

in part in Case No. A26A0122. Rickman, P. J., and Gobeil, J., concur.

29