Walker v. Culpepper
| Decision Date | 23 April 2013 |
| Docket Number | No. A13A0210.,A13A0210. |
| 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.
[742 S.E.2d 145]
Robert C. Koski, for Appellant.
Laura Sidwell Maki, for Appellee.
MILLER, Judge.
[321 Ga.App. 629]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 [321 Ga.App. 630]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).
[742 S.E.2d 146]
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...
To continue reading
Request your trial
-
Giles v. State Farm Mut. Ins. Co.
...S.E.2d 99 (1991).2 See Callaway, supra; Harlem v. Williams, 326 Ga.App. 526, 527–528, 757 S.E.2d 149 (2014) ; Walker v. Culpepper, 321 Ga.App. 629, 630, 742 S.E.2d 144 (2013) ; Cleveland, supra, 311 Ga.App. at 884(2), 717 S.E.2d 500 (while correctly stating rule in one place in opinion, oth......
-
Smith v. Brooks
...efforts were made to locate [Brooks], other than the conclusory statements in the affidavits." The court quoted from our decision in Walker v. Culpepper : " ‘The plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.’ "6 In Walker , we r......
-
Smoot-Lee v. Corizon Health, Inc.
...no more than a single attempt to effect service"), overruled on other grounds by Giles, 330 Ga. App. 314; Walker v. Culpepper, 321 Ga. App. 629, 630, 742 S.E.2d 144, 146 (2013) (no diligence where no attempt to serve between May 2011 and February 2012), overruled on other grounds by Giles, ......