concurring specially.
I concur with the judgment reached by the majority but for different reasons.
Colon moved to dismiss the present personal injury action on the ground that the applicable two-year statute of limitation (OCGA § 9-3-33) had run. Indeed, the complaint, filed September 11, 2003, stated in its text that the accident had occurred on July 28, 2001, which thus showed that the statute had run. But the complaint alleged that it was a proper OCGA § 9-2-61 renewal of a prior valid action that had been voluntarily dismissed within six months of the filing date of the renewal action.
In his motion to dismiss, Colon alleged that his counsel filed an answer in the original action on November 4, 2002, that purportedly raised all service defenses, and that an “Acknowledgment of Service” in that action that was executed by him personally on August 26 and filed on August 27, 2003, was invalid. He argued that absent proper service, the prior action was invalid and could not sustain a renewal action under OCGA § 9-2-61. See Clark v. Dennis.12 But Colon submitted and the record contains no competent evidence (through certified pleadings, testimony, or otherwise) as to these matters, simply attaching to his motion an uncertified copy of the alleged “Acknowledgment of Service” from the prior action with no other documents or evidence. In his response, Askins admitted to the text of the “Acknowledgment of Service” only, arguing that it showed the prior lawsuit was properly served.
I cannot agree with the majority that “the record shows” (i) Askins filed the original complaint on September 25, 2002, (ii) Colon answered the complaint on November 4, 2002, raising all service defenses, and (iii) the “Acknowledgment of Service” was executed by Colon personally on August 26, 2003 (significantly, a date after the complaint was allegedly answered by counsel representing Colon). I note that the trial court below also apparently relied upon these unsubstantiated statements in dismissing the renewal action.
The problem is that Colon bore the burden of showing evidence to dispute the allegations of the complaint that a valid prior action (now dismissed) supported the renewed complaint. Specifically, he bore the burden here of showing that service in the prior action was *742improper. See Kidd v. First Commerce Bank.13 Yet (as stated in the majority opinion) he presented no competent evidence as to the circumstances surrounding his receipt, execution, and filing of the “Acknowledgment of Service” in the prior action nor as to the status of his legal representation at that time — matters which under his argument were crucial to determining the effectiveness of service. Absent such evidence, the trial court was not authorized to find that the service in the prior action was invalid. Accordingly, based on the state of the record, no evidence supported the finding that, contrary to the allegations in the renewal complaint, the prior action was an invalid action that would not support the renewal action.
Decided October 22, 2004 Reconsideration denied December 3, 2004 Orlando & Kopelman, Roger W. Orlando, for appellant. Appelbaum & Laross, Eve A. Appelbaum, for appellee.For these reasons, I concur in reversing the dismissal of the suit.
On Motion for Reconsideration.
Colon argues on motion for reconsideration that we overlooked a controlling statute which would require a different judgment from that rendered, specifically Uniform Superior Court Rule 24.3, which provides, in pertinent part, that “[a]ll acknowledgments of service must be witnessed by an official attesting officer or the parties’ counsel.” He asserts that the acknowledgment of service he signed was ineffective to waive service because it was not witnessed by an official attesting officer or the parties’ counsel. This argument fails for two reasons. First, it was not raised in the trial court and therefore has been waived. “It is well established that this court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.”14 Second, USCR 24.1 et seq., of which USCR 24.3 is a part, applies to domestic relations actions. As the instant case is a personal injury action, and does not involve domestic relations, USCR 24.3 is inapplicable.
The remainder of Colon’s contentions were raised in his initial appellate brief and were ruled on by the Court. They do not merit further discussion.
The motion for reconsideration is denied.
Clark v. Dennis, 240 Ga. App. 512 (1) (522 SE2d 737) (1999).
Kidd v. First Commerce Bank, 264 Ga. App. 536, 537 (1) (591 SE2d 369) (2003).
(Punctuation and footnote omitted.) Mayhue v. Middle Ga. Coliseum Auth., 253 Ga. App. 471, 473 (559 SE2d 488) (2002).