Opinion
66872.
DECIDED NOVEMBER 23, 1983. REHEARING DENIED DECEMBER 12, 1983.
Medical malpractice. DeKalb Superior Court. Before Judge Peeler.
Robert E. Shields, Joseph B. Gellman, for appellants.
Robert G. Tanner, Sidney F. Wheeler, Henry D. Green, Jr., for appellees.
The automatic dismissal of appellants' medical malpractice suit on June 16, 1982, for failure to take a written order for a period of five years (OCGA § 9-2-60 (b) (Code Ann. § 3-512)) was affirmed by this court in Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 ( 309 S.E.2d 635). Appellants refiled their suit on February 15, 1983, under the auspices of OCGA § 9-2-61 (Code Ann. § 3-808) (the "six-month rule") alleging, among other things, that the statute of limitation had been tolled under OCGA § 9-3-96 (Code Ann. § 3-807) "by the fraudulent conduct of the Defendants and their agents." The complaint then alleged conduct on the part of appellees' attorneys which purportedly constituted the tolling fraud. When appellees' motion to dismiss was granted, this appeal followed.
1. An automatic dismissal is one without prejudice inasmuch as it is not an action on the merits of the case. Stone v. Green, 163 Ga. App. 18 (2) ( 293 S.E.2d 506). Therefore, appellants had the opportunity to refile their action under OCGA § 9-2-61 (Code Ann. § 3-808) within six months of the date of the dismissal of the first suit, June 16, 1982. Calloway v. Harms, 135 Ga. App. 54 ( 217 S.E.2d 184). The six-month extension had expired by the time appellants refiled their suit on February 15, 1983. However, a statute of limitation is tolled "[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action . . ." OCGA § 9-3-96 (Code Ann. § 3-807). Appellants invoked the saving principles of this statute by alleging, in their refiled complaint, fraud on the part of appellees' attorneys. Under OCGA § 9-3-96 (Code Ann. § 3-807), however, only actual fraud tolls the statute of limitation. Shipman v. Horizon Corp., 245 Ga. 808 ( 267 S.E.2d 244). The fraudulent activity alleged by appellants, if fraud at all, amounts to constructive fraud, which does not toll the statute. Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287 ( 277 S.E.2d 257). Thus, the trial court properly granted appellees' motion to dismiss.
2. Appellants also contend that the trial court erroneously "may have considered and disbelieved the allegations of fraud in appellants' complaint." We can find no factual basis in the record for this assertion, and appellants have not cited us to any. Unless the contrary appears, it is presumed that a public official performs his duties in a proper manner. Kight v. Gilliard, 215 Ga. 152 ( 109 S.E.2d 599). We apply the presumption and affirm the action taken by the trial court.
Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.