Wilson v. Ortiz, A98A0095.

• Decision Date: 31 March 1998
• Docket Number: No. A98A0095.,A98A0095.
• Citation: 501 S.E.2d 247,232 Ga. App. 191
• Parties: WILSON v. ORTIZ et al.
• Court: Georgia Court of Appeals

501 S.E.2d 247

232 Ga. App. 191

WILSON v. ORTIZ et al.

No. A98A0095.

Court of Appeals of Georgia.

March 31, 1998.

Reconsideration Denied April 14, 1998.

Eric C. Silver, Atlanta, for appellant.

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, Cartersville, for appellees. ELDRIDGE, Judge.

This appeal originates from a suit concerning a collision between a car driven by the plaintiff, Darin S. Wilson, and a truck owned by defendant Evergreen Environments, Inc. ("Evergreen") and driven by Evergreen's employee, defendant Benjamin Ortiz. Plaintiff brought suit against Ortiz alleging he was negligent in causing the collision and brought suit against Evergreen on the theory of vicarious liability. In the complaint, plaintiff asserts claims for both personal injury and property damage.

The defendants filed a combined motion for summary judgment on behalf of Evergreen and motion to dismiss on behalf of Ortiz. Thereafter, the plaintiff amended his complaint to set forth an additional theory of recovery against Evergreen for its own independent acts of negligence, i.e., putting an unsafe vehicle on the road and negligent entrustment of a vehicle. The trial court dismissed Ortiz with prejudice for failure of the plaintiff to perfect proper service until more than five months after the expiration of the statute of limitation and granted summary judgment in favor of Evergreen on the merits of plaintiff's claims and dismissed Evergreen with prejudice. It is from this order that the plaintiff appeals.

1. The plaintiff alleges that the trial court erred in finding that the plaintiff failed to exercise due diligence in perfecting service on Ortiz after the running of the statute of limitation and in dismissing Ortiz for lack of service.

(a) The statute of limitation for a personal injury action is two years. OCGA § 9-3-33. The subject collision occurred on January 17, 1994. Plaintiff filed suit on January 12, 1996, five days before the applicable statute of limitation ran. Service was not perfected on Ortiz until June 22, 1996.

"Where service is made, as here, after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute, but only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible. The plaintiff also has the burden of showing lack of fault. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, [the] plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, [the] plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. Further, ... [the] plaintiffs have the responsibility to investigate and learn where the defendant may be located and served." (Citations and punctuation omitted.) Patterson v. Johnson, 226 Ga.App. 396, 397-398, 486 S.E.2d 660 (1997). "The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse." (Citations and punctuation omitted.) Sykes v. Springer, 220 Ga.App. 388, 390, 469 S.E.2d 472 (1996).

In the case before us, when plaintiff filed suit on January 12, 1996, he requested that Ortiz be served at the address of 2550 Hargrove Road, Apartment 202P, Smyrna, Georgia, 30080. On January 18, 1996, one day after the statute of limitation ran on plaintiff's personal injury claim, the sheriff's department returned service "non-est," indicating lack of service. The plaintiff then attempted to find an address for Ortiz through the phone book. Finally, on February 6, 1996, the plaintiff retained a private process server and detective to locate Ortiz. During the course of the private process server's investigation, he discovered three subjects living in the southeast United States, one of whom was in the Atlanta area, with the name of Ben or Benjamin Ortiz. The only investigation plaintiff made of these three individuals was to have the private process server make a telephone call. The private process server averred that he telephoned each of these three subjects and asked if this was the residence of the Benjamin Ortiz that now worked or had previously worked for a company called Evergreen Environmental or had previously resided at 2550 Hargrove Road in Smyrna; at all three listings the private process server received a negative response. On February 17, 1996, without further inquiry or investigation, the private process server informed the plaintiff that he was unable to find Ortiz.

There was no showing by the plaintiff that he made any additional attempts to locate Ortiz other than serving interrogatories on Evergreen requesting Ortiz's address. In response to plaintiff's interrogatories, Evergreen initially stated it would provide plaintiff with Ortiz's address upon receipt. On June 16, 1996, counsel for Evergreen confirmed by telephone that Ortiz did, in fact, reside on Fair Oaks Avenue in Marietta, which was the Atlanta area address that the plaintiff's private process server had previously found approximately four months earlier. Personal service was finally perfected on Ortiz on June 22, 1996, more than five months after the statute of limitation had run on plaintiff's personal injury claims.

Under the evidence presented here, the trial court did not abuse its discretion as a matter of law in deciding that the plaintiff did not exercise reasonable diligence in attempting to perfect timely service on Ortiz as to plaintiff's personal injury claims and in dismissing that portion of plaintiff's complaint without prejudice for that reason. However, the trial court did err in dismissing the plaintiff's personal injury claims against Ortiz with prejudice, because there had been no adjudication on the merits. OCGA §§ 9-11-12(b); 9-11-41(b)(2); Rainwater v. Vazquez, 133 Ga.App. 173, 210 S.E.2d 380 (1974); see O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969); Teal v. Reeves, 144 Ga.App. 666, 242 S.E.2d 328 (1978). Had Ortiz brought a motion under OCGA § 9-11-12(b)(6) on the grounds that the statute of limitation had run, such adjudication would have been on the merits. See Bennett v. Nelson, 202 Ga.App. 346, 414 S.E.2d 291 (1991); Starr v. Wimbush, 201 Ga.App. 280, 281(1), 410 S.E.2d 776 (1991).

The defendant's motion to dismiss Ortiz for lack of proper and timely service was not a motion for summary judgment, but was a motion pursuant to OCGA § 9-11-12(b)(4) and (5), i.e., a motion to dismiss for insufficiency of process and insufficiency of service of process. The defense of insufficiency of service of process, along with "[t]he [other] defenses enumerated in § 12(b) of The Civil Practice Act[,] OCGA § 9-11-12(b)[,] except (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement." (Citation and punctuation omitted.) Murray v. Sloan Paper Co., 212 Ga.App. 648, 649, 442 S.E.2d 795 (1994). A dismissal for insufficiency of service of process is a finding by the trial court that service was not perfected in a reasonable and diligent manner within the prescribed statute of limitation and is not a ruling that the plaintiff's action is, in fact, barred by the running of the statute of limitation. On such a motion to dismiss, the trial court cannot determine on the merits that the plaintiff's action is barred by the running of the statute of limitation, because such issue is a factual issue and must eliminate the factual issue of tolling. By dismissing the case for lack of service, the action is abated, and the trial court no longer has jurisdiction to hear evidence that may bear on the tolling of the statute of limitation. The trial court could only dismiss the plaintiff's personal injury claims against Ortiz on the merits on a motion for summary judgment where the evidence is undisputed that there were no material issues of fact which would toll the running of the statute of limitation, thereby allowing the statute of limitation to attach. Therefore, the trial court's dismissal of Wilson's personal injury claims should have been without prejudice. Any attempt by the plaintiff to refile the personal injury claims would show on the face of the complaint that the statute of limitation had run.

(b) Service was perfected on Ortiz within the four-year statute of limitation for property damage. See OCGA § 9-3-31. Therefore, the trial court erred in dismissing the plaintiff's claim for property damage.

2. In his second enumeration of error, the plaintiff alleges that the trial court erred in granting summary judgment to Evergreen on his theory of negligent entrustment and placing an unsafe vehicle on the road.

"Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness." (Citations and punctuation omitted; emphasis in original.) Worthen v. Whitehead, 196 Ga.App. 678, 396 S.E.2d 595 (1990).

There is no evidence of record that Ortiz was a reckless driver, nor is there any evidence that his driving record was poor. More importantly, there is no evidence that Evergreen...