Milton v. Goins.
| Decision Date | 13 June 2011 |
| Docket Number | No. A11A0039.,A11A0039. |
| Citation | 711 S.E.2d 415,309 Ga.App. 865 |
| Parties | MILTONv.GOINS. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Kaplan & Lukowski, Jay D. Lukowski, Atlanta, for appellant.Alycia D. Foggs–Anderson, for appellee.MILLER, Presiding Judge.
This is an action for damages arising from a motor vehicle collision. Plaintiff Milton appeals from the order granting defendant Goins's motion to dismiss due to lack of service. Finding no error, we affirm.
1. Milton contends that the trial court erred in concluding that Goins was not validly served. She argues that the evidence below does not support the factual findings of the trial court.
On appeal, absent a showing of an abuse of discretion, a trial court's finding of insufficient service of process must be affirmed. When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. Those findings will not be disturbed on appellate review when supported by any evidence.
(Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga.App. 574, 575, 639 S.E.2d 554 (2006).
The complaint was filed on or about August 7, 2009. Ten days later the two-year period of the statute of limitation ended. In August 2009, process servers received information concerning an address at which Goins's “ family” lived. A process server attempted service upon Goins at the address after a woman who answered the door stated that Goins lived “off and on” at the house. After learning the purpose of the process server's visit, the woman stated Goins did not live there and she did not know where he lived. The process server left, but returned shortly and served a man who answered the door.
Goins filed a special appearance answer and later a motion to dismiss due to lack of service. In support of his motion, Goins filed an affidavit in which he stated that the residence where the documents were served was the home of his aunt and that he had not lived there for over five years. The aunt also filed an affidavit stating that she lived at the address where service had been attempted but that Goins did not reside there. An additional affidavit of Goins's mother stated that he did not reside with the aunt. The trial court concluded that there was insufficient evidence that Goins resided at the aunt's home and that the August 2009 service at the home of the aunt was invalid.
Here, there is no direct evidence that Goins resided at the aunt's home. The statement of the woman at the home that Goins resided there off and on does not show that he resided there at any specific time including the day of the attempted service. In contrast, Goins, his aunt, and his mother state unequivocally that he did not reside at the aunt's home at the time of the attempted service. Furthermore, process servers employed by Milton subsequently determined that Goins did not reside there.
Under these circumstances, the trial court did not err in determining that Goins was not properly served in August 2009. Bohorquez v. Strother, 287 Ga.App. 98, 99–100, 650 S.E.2d 765 (2007); Yelle v. U.S. Suburban Press, 216 Ga.App. 46, 47, 453 S.E.2d 108 (1995). While there is further argument concerning a second attempted service at the mother's home in January 2010, that attempt was invalid because it followed a fatal lapse of diligence in Milton's efforts to accomplish service. Therefore, the trial court did not err in concluding that Goins was not validly served.
2. Milton maintains that the trial court abused its discretion in dismissing her case based on a conclusion that she failed to exercise a reasonable degree of diligence in obtaining service.
The mere filing of a complaint does not commence suit unless timely service is perfected as required by law. And when such service is not timely made, the plaintiff bears the burden of showing lack of fault. If an action is commenced...
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Giles v. State Farm Mut. Ins. Co.
...was filed as a matter of law. See Williams v. Colonial Ins. Co., 199 Ga.App. 760, 406 S.E.2d 99 (1991). See also Milton v. Goins, 309 Ga.App. 865, 866(1), 711 S.E.2d 415 (2011) (plaintiff bears burden of proving lack of fault when service is not timely perfected as required by law). And[w]h......
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Van Omen v. Lopresti
..., 335 Ga. App. 880, 880, 783 S.E.2d 398 (2016) ; Milani v. Pablo , 316 Ga. App. 287, 288 (1), 728 S.E.2d 883 (2012) ; Milton v. Goins , 309 Ga. App. 865, 865-866 (2), 711 S.E.2d 415 (2011), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 ; Ca......
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Van Omen v. Lopresti
...App. 880, 880, 783 S.E.2d 398 (2016) ; Milani v. Pablo , 316 Ga. App. 287, 288 (1), 728 S.E.2d 883 (2012) ; Milton v. Goins , 309 Ga. App. 865, 865-866 (2), 711 S.E.2d 415 (2011), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 ; Carver v. Ti......
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Giles v. State Farm Mut. Ins. Co..
...was filed as a matter of law. See Williams v. Colonial Ins. Co., 199 Ga. App. 760 (406 SE2d 99) (1991). See also Milton v. Goins, 309 Ga. App. 865, 866 (1) (711 SE2d 415) (2011) (plaintiff bears burden of proving lack of fault when service is not timely perfected as required by law). And "[......