Coles v. Reese

• Decision Date: 02 July 2012
• Docket Number: No. A12A0196.,A12A0196.
• Citation: 316 Ga.App. 545,12 FCDR 2202,730 S.E.2d 33
• Parties: COLES v. REESE.
• Court: Georgia Court of Appeals

316 Ga.App. 545

730 S.E.2d 33

12 FCDR 2202

COLES

v.REESE.

No. A12A0196.

Court of Appeals of Georgia.

July 2, 2012.

Jason Alan Craig, Vidalia, Attorney for Appellant.

Michael David St. Amand, Atlanta, William James Martin, Attorney for Appellee.

BLACKWELL, Judge.

The third time is not always the charm. In November 2008, Brian Coles sued Sparkle Junell Reese to recover damages for injuries that he sustained in an October 2007 automobile accident. But Coles never perfected service of that lawsuit and voluntarily dismissed it instead. He then filed a second lawsuit in April 2009, which he attempted to serve upon Reese under the auspices of the Nonresident Motorist Act, OCGA § 40–12–1, notwithstanding that he alleged in the second lawsuit that Reese was a resident of Georgia at the time of the accident. When Reese specifically appeared and moved to dismiss the second lawsuit for insufficiency service, Coles voluntarily dismissed it too. By the time Coles dismissed his second lawsuit, more than two years—the period of limitations for a lawsuit for injuries to the person, see OCGA § 9–3–33—had passed since the October 2007 automobile accident.

Then, in March 2010, Coles filed his third lawsuit against Reese, which he characterized as a renewal of the second lawsuit.¹ The problem is, a lawsuit is void if service is never perfected, Hobbs v. Arthur, 264 Ga. 359, 360, 444 S.E.2d 322 (1994), and a void lawsuit cannot be renewed outside the period of limitations. United States Fidelity & Guaranty Co. v. Reid, 268 Ga. 432, 432, 491 S.E.2d 50 (1997). Reese moved to dismiss the third lawsuit,² arguing that the period of limitations had run before it was filed, and it could not properly be characterized as a renewal of the second lawsuit because Coles never perfected service on the second lawsuit. The court below granted the motion to dismiss, and Coles appeals. We see no error and affirm.

Coles argues that the third lawsuit is a proper renewal of the second lawsuit, and he contends that he properly perfected service of the second lawsuit by serving Reese through the Secretary of State under the Nonresident Motorist Act. The Act provides in pertinent part that, when a nonresident of Georgia is involved in an automobile accident in this State, she can be served with process through the Secretary of State “in any action or proceeding against any such nonresident growing out of [the accident].” OCGA § 40–12–1(a). Coles says that the Act governs the service of his second lawsuit, and although he alleged in the second lawsuit that Reese was a Georgia resident at the time of the accident, he also alleged that she since had moved from the State.³

But as this Court has said before, there is “[a]n entire body of law” that concerns service of process in such cases. Farrie v. McCall, 256 Ga.App. 446, 447, 568 S.E.2d 603 (2002) (en banc). And according to that “entire body of law,” the Nonresident Motorist Act does not apply when, at the time of the accident, the defendant lived in Georgia. Id. See also Crowder v. Ginn, 248 Ga. 824, 825, 286 S.E.2d 706 (1982); Andrews v. Stark, 264 Ga.App. 792, 793(1), 592 S.E.2d 438 (2003); Bailey v. Hall, 199 Ga.App. 602, 603(1), 405 S.E.2d 579 (1991). Instead, a Georgia court may obtain jurisdiction of such a defendant under the Georgia Long–Arm Statute, OCGA § 9–10–91. Crowder, 248 Ga. at 825, 286 S.E.2d 706;Farrie, 256 Ga.App. at 447, 568 S.E.2d 603. See also OCGA § 9–10–90 (defining a “nonresident” under the Georgia Long Arm Statute to include any individual who resided in Georgia at the time a tort occurred, but who subsequently became a resident of another State). And a defendant subject to jurisdiction under the Long–Arm Statute, unlike a defendant subject to jurisdiction under the Nonresident Motorist Act, cannot be served through the Secretary of State. Rather, pursuant to OCGA § 9–10–94,⁴ such a defendant must be served either personally or by leaving copies of the summons and complaint “at [her] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” OCGA § 9–11–4(e)(7).

Consequently, we agree with the court below that Coles never perfected service of the second lawsuit upon Reese. Having failed to perfect service of the second lawsuit, it could not be properly renewed outside the period of limitations. And the period of limitations having run before the filing of the third lawsuit, the court below properly dismissed the third lawsuit. For these reasons, we affirm the judgment below.

Judgment affirmed.

MIKELL, P.J., and MILLER, J., concur.

1. Under OCGA § 9–2–61, when a plaintiff initiates a lawsuit within the applicable period of limitations, he may subsequently voluntarily dismiss it and renew it “within six months after the dismissal by filing a new complaint, subject only to the requirement of payment of costs in the original action.” Robinson v. Boyd, 288 Ga. 53, 56(2), 701 S.E.2d 165...