Rosser v. Lynn

365 Ga.App. 301

878 S.E.2d 262

ROSSER

v.LYNN et al.

A22A0761

Court of Appeals of Georgia.

September 7, 2022

Stanley M. Lefco, Atlanta, for Appellant.

Law Office of Andrews & Manganiello, Veronica L. Hoffler, Lithonia, Tierra Celeste Whitlock, for Appellee.

Hodges, Judge.

Leroy Rosser sued Phylicia D. Lynn and Darryl J. Watson (collectively "Defendants") for damages allegedly sustained as the result of an automobile accident. Rosser never obtained personal service on either defendant, and the trial court dismissed his lawsuit. Rosser timely appealed, and because the trial court failed to address his motion for service by publication, we vacate the trial court's judgment and remand this case with direction.

"We review a trial court's denial of a motion for service by publication and associated dismissal of a complaint for an abuse of discretion." (Citation and punctuation omitted.) Humphries v. Weekly , 360 Ga. App. 59, 860 S.E.2d 619 (2021).

So viewed, the record shows that Rosser filed suit on December 31, 2019, contending that, on February 6, 2018, his car was struck by a car that was driven by Watson but was owned by Lynn.

The lawsuit was forwarded to the sheriff for service. On January 17, 2020, the sheriff attempted service on Watson, but was unsuccessful. The sheriff attempted service on Lynn on January 23, 2020, but was also unsuccessful. On February 5, 2020, Defendants filed a special answer in which they raised the defenses of lack of service, improper service of process, and lack of personal jurisdiction.

On February 27, 2020, Rosser filed a motion to appoint a special process server, which was granted on March 3, 2020. The process server executed two affidavits of due diligence to serve process on April 17, 2020. In those affidavits, she averred that she attempted to serve both Watson and Lynn on March 27, 2020, at two new addresses in Georgia, but that at both addresses the current residents stated they were unfamiliar with Defendants.

On April 23, 2020, Rosser filed a motion for service by publication along with an affidavit by his attorney. Rosser's attorney testified that the process server did an online search which led to service attempts at the two additional addresses and that Defendants’ counsel refused to disclose their addresses. Attached to Rosser's counsel's affidavit were reports on each defendant which contained, among other things, addresses and phone numbers currently or previously connected to Defendants, as well as contact information for potential family and associates of Defendants.¹

On December 9, 2020, Defendants filed a motion to dismiss due to the failure to serve them with process. Apparently, at some point, there was a hearing on the motions of the parties, but there is no transcript in the record and no written order was entered as a result of this hearing. On October 6, 2021, Rosser moved to appoint a new process server, which was granted. Although the process server attempted service on Watson at a new address, it was unsuccessful.

On October 29, 2021, Defendants opposed Rosser's motion for service by publication and renewed their motion to dismiss the lawsuit. The trial court granted the motion to dismiss on November 2, 2021. The trial court did not explicitly rule on the motion for service by publication on the record. Rosser appeals. In related enumerations, Rosser contends that the trial court erred in implicitly denying his motion for service by publication and in granting Defendants’ motion to dismiss. Because the trial court did not explicitly rule on the record on Rosser's motion for service by publication, we agree that it erred in granting the dismissal.

Under Georgia law, an individual has two years to bring a claim for personal injury, which in this case would have been February 6, 2020. OCGA § 9-3-33.

Although a plaintiff must file his complaint within the applicable period of limitation, the law allows the same to be served beyond that applicable period. If the timely filing of the pleading is followed by timely service perfected as authorized by law, the subsequent service will relate back to the initial filing even though the statute of limitation has run in the interim. In other words, if the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.

(Citations and punctuation omitted.) Van Omen v. Lopresti , 357 Ga. App. 9, 10 (2), 849 S.E.2d 758 (2020). "When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised." (Citation and punctuation omitted.) Id. at 11 (2), 849 S.E.2d 758. "[O]nce the plaintiff becomes aware of a problem with service, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service." (Citation and punctuation omitted.) Swain v. Thompson , 281 Ga. 30, 32 (2), 635 S.E.2d 779 (2006). "In determining whether a plaintiff exercised the greatest possible diligence, we focus on the plaintiff's actions, not the [d]efendant[s’]. The fact that a defendant may be hard to find does not justify a lack of effort on the part of a plaintiff." (Citation and punctuation omitted.) Lipscomb v. Davis , 335 Ga. App. 880, 881, 783 S.E.2d 398 (2016).

Here, the statute of limitation unquestionably ran in February 2020; thus, an analysis of Rosser's diligence in attempting service is key. On ...