Long v. Bellamy

• Decision Date: 23 February 2009
• Docket Number: No. A08A2056.,A08A2056.
• Citation: 296 Ga. App. 263,674 S.E.2d 120
• Parties: LONG v. BELLAMY.
• Court: Georgia Court of Appeals

674 S.E.2d 120

296 Ga. App. 263

LONG v. BELLAMY.

No. A08A2056.

Court of Appeals of Georgia.

February 23, 2009.

James Andrew Neuberger, Atlanta, for Appellant.

Wood, Odom & Edge, Arthur Brannon Edge IV, Newnan, for Appellee.

BERNES, Judge.

After dismissing her first lawsuit, Karen M. Bellamy filed this renewal suit seeking compensation for personal injuries, but she did not secure service on the defendant, Kimberly F. Long, until over a year later, after expiration of the statute of limitation. The trial court denied Long's motion to dismiss, or in the alternative, for summary judgment in which Long argued that the limitation period had expired and Bellamy had not exercised due diligence in perfecting service. The case was tried before a jury, which returned a verdict in favor of Bellamy. We conclude that as a matter of law Bellamy failed to diligently serve Long and, therefore, reverse.

This case arises out of an automobile collision that occurred on November 20, 2002. Because the statute of limitation for personal injury actions is two years, OCGA § 9-3-33, the limitation period for a negligence suit arising out of the collision was set to expire on November 20, 2004, unless otherwise tolled.

Bellamy filed her negligence suit against Long in January 2004 and perfected service upon Long the following month. On June 23, 2005, Bellamy voluntarily dismissed her first lawsuit without prejudice, and shortly thereafter, on June 30, 2005, she filed the instant renewal action, but failed to serve Long with the summons and renewed complaint. Long answered and raised the defenses of, among other things, insufficient service of process and expiration of the statute of limitation.

Two months later, Long filed a motion to dismiss, or in the alternative, for summary judgment on the same grounds. According to Long, the renewal action had to be dismissed because the limitation period had expired and service still had not been perfected.¹ In response, Bellamy filed a motion for service by publication, asserting in an accompanying affidavit from her attorney that numerous attempts had been made to locate Long but that she was evading service. On January 3, 2006, the trial court granted Bellamy's motion for service by publication. The trial court also denied Long's motion for summary judgment, ruling that "valid personal service may yet be made which would relate back so as to toll the statute of limitation if proper diligence is shown."

On July 28, 2006, Long was personally served with the summons and renewed complaint, after which Long filed a renewed motion to dismiss, or in the alternative, for summary judgment. Long asserted that the renewal action had to be dismissed because Bellamy had failed to exercise due diligence in perfecting service and that, as a result, the limitation period had not been tolled. Bellamy initially did not file a response brief, but later submitted the affidavits of her attorney and a private investigator to support her claim of due diligence. Following oral argument of the parties at a pretrial hearing, the trial court denied the renewed motion. The case proceeded to trial, the jury returned a verdict in favor of Bellamy, and judgment was entered accordingly. This appeal followed.

1. In her first enumeration of error, Long maintains that, as a matter of law, Bellamy failed to come forward with sufficient evidence to prove due diligence in perfecting service of the summons and renewed complaint after expiration of the statute of limitation. Consequently, Long argues that the trial court should have granted her renewed motion to dismiss, or in the alternative, for summary judgment on the grounds of insufficient service of process and expiration of the statute of limitation.

(a) As a threshold matter, we must consider whether, as Bellamy contends, Long waived her insufficient service of process and statute of limitation defenses because the defenses were not listed in the pretrial order.² A pretrial order "limits the issues for trial to those not disposed of by admissions or agreements of counsel." OCGA § 9-11-16(b). The general rule is that any issue omitted from the pretrial order is waived. See Long v. Marion, 257 Ga. 431, 433-434(2), 360 S.E.2d 255 (1987). But "[o]mission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated." Dunkin' Donuts of America v. Gebar, Inc., 202 Ga.App. 450, 451(1)(b), 414 S.E.2d 683 (1992). See also OCGA § 9-11-15(b); Bowers v. Howell, 203 Ga.App. 636, 637-638(1), 417 S.E.2d 392 (1992); Carreras v. Austell Box Bd. Corp., 154 Ga.App. 135, 136-138(2), 267 S.E.2d 792 (1980). If that test is met, the pretrial order is treated as impliedly amended to include the issue. See id.

Here, the trial court entertained and ruled upon the merits of Long's renewed motion raising the insufficient service of process and statute of limitation defenses after the trial court had entered the pretrial order that failed to list those defenses. And, at the pretrial hearing on the renewed motion, Bellamy did not express any surprise or object to the raising of the defenses. Instead, Bellamy argued against the grant of the renewed motion based solely on the merits and submitted affidavits in support of her position. In truth, the issue of waiver was not raised at all until the appeal of this case. Under these circumstances, the pretrial order was impliedly amended to include the defenses in question. See OCGA § 9-11-15(b); Bowers, 203 Ga.App. at 637-638(1), 417 S.E.2d 392; Dunkin' Donuts of America, 202 Ga.App. at 451(1)(b), 414 S.E.2d 683; Carreras, 154 Ga.App. at 136-138(2), 267 S.E.2d 792.

(b) We likewise disagree with Bellamy's contention that Long waived any defense predicated on the delay in service of process by appearing and participating in the trial on the merits. It is true that a defendant waives an otherwise valid objection to service of process if he or she "substantially participated in litigation on the merits before raising the objection for decision by the court." (Emphasis supplied.) Exum v. Melton, 244 Ga.App. 775, 777(2)(b), 536 S.E.2d 786 (2000). See Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga.App. 641, 643(3), 507 S.E.2d 823 (1998); Harrell v. Gomez, 174 Ga.App. 8, 10(3), 329 S.E.2d 302 (1985); Wheeler's, Inc. v. Wilson, 196 Ga. App. 622, 623, 396 S.E.2d 790 (1990) (physical precedent only). But Long raised her objections to service in her answer, in her motion to dismiss, and in the alternative, for summary judgment, and again in her renewed motion, all before the case was litigated on the merits at trial. No waiver, therefore, occurred in this case. See id.

(c) We now turn to the substance of Long's defenses of insufficient service of process and expiration of the statute of limitation.

OCGA § 9-2-61(a) provides that a plaintiff may refile an action she previously dismissed within the original applicable statute of limitation or within six months after the dismissal, whichever is later. A renewed lawsuit under OCGA § 9-2-61(a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Diligence in perfecting service in a renewal action must be measured from the time of filing the renewed suit. Because service of the renewal action in this case was not perfected within the six-month renewal period, [Bellamy] [had] the burden of showing that she acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.

(Punctuation and footnote omitted.) Magsalin v. Chace, 255 Ga.App. 146, 147(1), 564 S.E.2d 554 (2002). If Bellamy failed to meet her burden of proving due diligence, then she was guilty of laches, and service did not relate back to the time of filing the renewed complaint for the purpose of tolling the statute of limitation. See Patterson v. Lopez, 279 Ga.App. 840, 842-843(2), 632 S.E.2d 736 (2006). And whether Bellamy met her burden in this regard was a question of fact for the trial court's determination that will not be overturned absent an abuse of discretion. See Livingston v. Taylor, 284 Ga.App. 638, 639, 644 S.E.2d 483 (2007).

In arguing that the trial court acted within its discretion in finding that she exercised due diligence in perfecting service, Bellamy points out that during the course of the proceedings, the trial court entered an order granting her motion to serve Long by publication.

Even though service by publication is insufficient to confer in personam jurisdiction over [a] defendant, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. Thus, as of the date of the order granting the request for service by publication, the trial court found [that Bellamy] had been diligent in the attempt to locate [Long].

(Citations and punctuation omitted.) Smith v. Johnson, 209 Ga.App. 305, 306(1), 433 S.E.2d 404 (1993). See Starr v. Wimbush, 201 Ga.App. 280, 282(2), 410 S.E.2d 776 (1991). Another seven months passed before Long was served, however, and Bellamy was required to further prove that she exercised due diligence during that subsequent period. See Smith, 209 Ga.App. at 306(1), 433 S.E.2d 404. Indeed, Bellamy was required to prove that she exercised "the greatest possible diligence to ensure proper and timely service" after the publication order was entered, since she clearly knew by that point that there was a problem with serving Long. (Punctuation and footnote omitted.) Baxley v. Baldwin, 279 Ga.App. 480, 482(3), 631 S.E.2d 506 (2006).³

Having reviewed the record in this case, we conclude that Bellamy failed to demonstrate that she acted with the greatest possible diligence in perfecting service upon Long after entry of the order for service by publication. In an effort...