Walker v. Culpepper

• Decision Date: 23 April 2013
• Docket Number: No. A13A0210.,A13A0210.
• Citation: Walker v. Culpepper, 321 Ga.App. 629, 742 S.E.2d 144 (Ga. App. 2013)
• Parties: WALKER v. CULPEPPER.
• Court: Georgia Court of Appeals

321 Ga.App. 629

742 S.E.2d 144

WALKER

v.CULPEPPER.

No. A13A0210.

Court of Appeals of Georgia.

April 23, 2013.

Robert C. Koski, for Appellant.

Laura Sidwell Maki, for Appellee.

MILLER, Judge.

Rodney Walker appeals from the trial court's grant of summary judgment to Connie Culpepper based upon its finding that Walker was guilty of laches since he did not serve Culpepper until ten months after the statute of limitation expired.Walker contends that the trial court erred in finding that he was guilty of laches because he exercised due diligence in accomplishing service.Discerning no error, we affirm.

“[T]he determination of whether the plaintiff is guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse.”(Citations and punctuation omitted.)McGhee v. Jones,287 Ga.App. 345, 346, 652 S.E.2d 163(2007).

Here, the record shows that the accident occurred on April 7, 2009, and that Walker filed his complaint on March 30, 2011.Walker unsuccessfully attempted service on April 2, 2011, and again on May 2 and 4, 2011.Walker then moved for service by publication in May 2011, claiming that Culpepper had provided a fraudulent address and was concealing herself to avoid service.Walker's motion was accompanied by an affidavit of diligent search stating his unsuccessful attempts to serve Culpepper and that a search of two Internet websites failed to provide a known address for Culpepper.In September 2011, Walker applied for service by publication and attached an affidavit of diligent search that was identical to the affidavit filed in May 2011.In December 2011, Walker again applied for service by publication, and the attached affidavit of diligent search was the same as those filed in May and September 2011.On December 27, 2011, the trial court denied Walker's motions to serve Culpepper by publication, finding that Walker failed to show due diligence.

Walker eventually served Culpepper in February 2012.In March 2012, Culpepper answered, raising the defense of, among other things, expiration of the statute of limitation, insufficiency of service of process, and laches.Culpepper filed a motion for summary judgment on these same grounds, and following a hearing, the trial court granted Culpepper's motion.

On appeal, Walker contends that the trial court erred in granting summary judgment to Culpepper because the evidence shows that he was duly diligent in attempting to serve Culpepper, and that service was delayed because Culpepper deliberately evaded service.We disagree.

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 within the applicable statute of limitation, but is not served upon the defendant either within five days or within the limitation period, the plaintiff must show that [he] acted in a reasonable and diligent manner in attempting to ensure that proper service was effected as quickly as possible.If he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation.

(Citations and punctuation omitted.)Milton v. Goins,309 Ga.App. 865, 866–867(2), 711 S.E.2d 415(2011).Summary judgment is an appropriate remedy when the issue, as in this case, concerns the expiration of the statute of limitation.Gaskins v. A.B.C....