Winters v. Goins
| Decision Date | 16 November 1998 |
| Docket Number | No. A98A1116.,A98A1116. |
| Parties | WINTERS et al. v. GOINS. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Middleton, Mixson, Orr & Adams, Mark A. Tate, John T. Dufour, Savannah, for appellants.
Martin, Snow, Grant & Napier, Cubbedge Snow III, Thomas P. Allen III, Chambless, Higdon & Carson, Thomas F. Richardson, Macon, for appellee.
Merle and Ressie Winters appeal the trial court's order granting Harold Lee Goins's motion to dismiss for failure to timely perfect service. Because we conclude that the trial court failed to determine properly whether appellants used due diligence in serving their complaint, we vacate the trial court's order dismissing the action and remand this case for further proceedings consistent with this opinion.
On August 7, 1995, appellants filed a complaint against Goins for personal injuries sustained by Ressie Winters in an automobile accident that occurred on August 10, 1993. The statute of limitation for filing such an action expired two years after the accident occurred. OCGA § 9-3-33. On August 28, 1996, appellants filed a motion requesting the court to direct service by publication. In support of the motion, they filed the affidavit of their attorney reciting that Goins had moved to North Carolina and that attempts to serve him there had been unsuccessful. The trial court granted this motion on September 5, 1996, and a notice of service by publication was filed one week later, September 12, 1996. Personal service on Goins was finally accomplished nearly six months later, March 3, 1997, in Kanawha County, West Virginia. Before service was perfected, Goins moved to dismiss on the basis of insufficiency of service of process and the running of the statute of limitation. In response, appellants contended that Goins was barred from raising defenses concerning timeliness of service, based on their assertion that, in exchange for an extension of time in which to answer, insurance company representatives stipulated that no such defense would be raised.
In its order granting Goins's motion, the trial court made two findings, both of which are subjects of this appeal. The court ruled that any purported stipulation made by Goins's insurance carrier was not binding on Goins. The court further ruled that appellants failed to find or serve Goins from September 21, 1995 to April 30, 1996, concluding that its earlier order (of September 5, 1996) was not necessarily a finding of due diligence. Appellants appeal these rulings and contend additionally that they exercised due diligence in serving Goins.
1. We first address appellants' contention that Goins was bound by two purported "stipulations." A few days after the trial court entered its order permitting service by publication, a document was filed, signed only by counsel for appellants, reciting as follows: "Come now Merle and Ressie Winters and stipulate that Harold Lee Goins shall have sixty (60) days to file any answer from this date with the understanding that no defense with regard to timely service of summons and complaint shall be raised on his behalf." Approximately three weeks later, appellants filed an "amended stipulation," again signed only by their counsel, essentially reciting the same language found in the earlier "stipulation," giving Goins sixty days to file an answer "with the understanding that no defense with regard to timely service of summons and complaint shall be raised on his behalf."
Citing a number of cases, appellants correctly argue that parties entering stipulations are bound by those agreements. See, e.g., Crawford v. Crump, 223 Ga.App. 119, 122(2), 476 S.E.2d 855 (1996); Macuch v. Pettey, 170 Ga.App. 467, 468, 317 S.E.2d 262 (1984). Indeed, "[p]arties to stipulations and agreements entered into; in the course of judicial proceedings will not be permitted to take positions inconsistent therewith in the absence of fraud, duress or mistake." (Citation and punctuation omitted.) McDaniel v. Oliver, 172 Ga.App. 109, 110, 322 S.E.2d 1 (1984). But appellants' argument that the documents filed by their counsel constituted binding stipulations fails for several reasons.
First, Goins was not a party to these "stipulations." Neither...
To continue reading
Request your trial
- In re Lawsuits of Carter
-
Ragan v. Mallow
...546 S.E.2d 33 (2001); Wilson v. State Farm Mut. Auto. Ins. Co., 239 Ga.App. 168, 172, 520 S.E.2d 917 (1999). Winters v. Goins, 235 Ga.App. 558, 560(2), 509 S.E.2d 361 (1998); Bailey v. Lawrence, 235 Ga.App. 73, 508 S.E.2d 450 (1998); Smith v. Johnson, 209 Ga.App. 305, 306(1), 433 S.E.2d 404......
-
Wilson v. State Farm Mut. Auto. Ins. Co.
...the uninsured motorist carrier only. See Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 462 S.E.2d 713 (1995); Winters v. Goins, 235 Ga.App. 558, 560(2), 509 S.E.2d 361 (1998); Wade v. Whalen, 232 Ga.App. 765(1), 504 S.E.2d 456 (1998). Since Strong was an uninsured motorist who could not be......
-
Ragan v. Mallow
...273 Ga. App. 207, 209 (614 SE2d 828) (2005); Wilson v. State Farm, 239 Ga. App. 168, 172 (520 SE2d 917) (1999). Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998); Smith v. Johnson, 209 Ga. App. 305, 306 (1) (433 SE2d 404) (1993); Douglas v. Woon, 205 Ga. App. 355, 356 (1) (4......