Humphries v. Weekly

• Decision Date: 24 June 2021
• Docket Number: A21A0098
• Citation: 860 S.E.2d 619,360 Ga.App. 59
• Court: Georgia Court of Appeals
• Parties: HUMPHRIES v. WEEKLY.

360 Ga.App. 59

860 S.E.2d 619

HUMPHRIES

v.WEEKLY.

A21A0098

Court of Appeals of Georgia.

June 24, 2021

Steven Jeffrey Jackson, Michael Paul Pryor, for Appellant.

Lindsay Lea Reese, Alpharetta, Anderson Dewey Robinson, for Appellee.

Markle, Judge.

After Chandler Humphries was involved in a motor vehicle accident with Sean P. Weekly, Humphries filed suit against Weekly for personal injuries he sustained as a result of the collision. When Humphries was unable to perfect service of the suit on Weekly, the trial court denied his motion for service by publication, and dismissed the action. Humphries now appeals, arguing that the trial court erred by (1) applying the wrong standard in denying his motion for service by publication; and (2) dismissing the action with prejudice for failure to perfect service of process, despite evidence that the statute of limitation on Humphries's claim had been tolled. For the reasons that follow, we vacate the trial court's order, and remand the case with direction for the trial court to apply the proper standard and make findings of fact and conclusions of law under the applicable standard with this respect to its denial of the motion for service by publication, and to reconsider the motion to dismiss after applying the proper standard to the service issue.

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. When a question of law is at issue, such as whether the statute of limitation bars an action, we owe no deference to the trial court's ruling and apply the plain legal error standard of review.

(Citations and punctuation omitted.) Smith v. Brooks , 354 Ga. App. 78, 79, 840 S.E.2d 156 (2020) ; see also Cascade Parc Property Owners Assn. v. Clark , 336 Ga. App. 94, 95, 783 S.E.2d 692 (2016).

On August 4, 2017, Humphries was waiting to make a left turn off the highway when Weekly rear-ended him, running him off the roadway and causing Humphries severe injuries. Humphries filed a complaint for personal injuries against Weekly on February 1, 2019. The record shows that the sheriff attempted, but failed, to serve the complaint on Weekly in March 2019, at an address in Rockdale County. Thereafter, in May 2019, Humphries filed a motion to appoint a special process server, which the trial court granted. In the meantime, Humphries perfected service on Weekly's uninsured motorist (UM) carrier.¹

Weekly filed a special appearance answer in the case, admitting to causing the accident, but denying the allegations as to his residence, and asserting defenses including insufficient service of process, and laches. Weekly then filed a motion to dismiss for failure to perfect service of process, alleging that the statute of limitation had run under OCGA § 9-3-99 on October 12, 2019. when Weekly's traffic citation for the accident was resolved by bond forefeiture. Humphries opposed the motion to dismiss, arguing that the statute of limitation had been tolled under OCGA § 9-3-94 because Weekly was concealing himself and evading service of process, and he moved the trial court for service by publication pursuant to OCGA § 33-7-11 based on information that Weekly could not be located in, or had left, the state, and was concealing himself. Humphries attached to his motion for service by publication affidavits and other evidence, illustrating his attempts to perfect service on Weekly.

The affidavits show that in April 2019, Humphries contacted Weekly's parents, who indicated Weekly was working out of town and living in Florida, but they refused to provide Weekly's address. In June 2019, Humphries's counsel requested that Weekly's counsel acknowledge service, which counsel declined, and she further refused to provide Weekly's address. Humphries's counsel averred that he had spoken to Weekly directly and informed him of his efforts to serve him. Weekly acknowledged that he knew of the lawsuit and indicated that he was working between Florida and New York, but he refused to offer an address where he could be served.

The record further reflects that Humphries made several attempts to perfect service on Weekly at different addresses in the state using various service methods, including having the Rockdale sheriff's department attempt service at the last known address, employing a court-appointed special process server and a private investigator who conducted a skip trace, all of which were unsuccessful. Humphries attempted service on two addresses associated with Weekly, but was told by the current residents that Weekly did not live there. Humphries also made several attempts to serve Weekly at his brother's house, but no one would answer the door. In November 2019, the claims manager for Weekly's insurance carrier refused to provide information on Weekly's whereabouts, stating "I am confident you are not going to find my guy."

Following a hearing, the trial court summarily denied Humphries's motion for service by publication and granted Weekly's motion to dismiss the case. Humphries moved for reconsideration, which the trial court also denied.² Humphries now appeals.

1. Humphries first argues that the trial court abused its discretion in denying his motion for service by publication because it applied the wrong legal standard of due diligence when it failed to consider whether Weekly could not be found within or had departed the state, or was concealing himself to avoid service. Because we cannot determine which standard the trial court applied in its ruling, we must vacate the trial court's order, and remand this case with direction to make appropriate factual findings and legal conclusions under the applicable standard.

OCGA § 33-7-11 (e) provides,

[i]n cases where the owner or operator of any vehicle causing injury or damage is known and either or both are named as defendants in any action for such injury or damages but the person resides out of the state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made and that he is a necessary or proper party to the action, the judge may grant an order that the service be made on the owner or driver by the publication of summons.

See Smith , 354 Ga. App. at 80 (1), 840 S.E.2d 156 ; see also OCGA § 9-11-4 (f) (1) (A). "[T]he correct legal standard for due diligence for service by publication under OCGA § 33-7-11 (e) is diligence in determining that an uninsured motorist is either out of state or avoiding service." Smith , 354 Ga. App. at 81 (1), 840 S.E.2d 156 ; see also Luca v. State Farm Mut. Automobile Ins. Co. , 281 Ga. App. 658, 660 (1), 637 S.E.2d 86 (2006). As we have explained, the standard is not simply diligence in...