Brian Coles v. Sparkle Reese

• Court: Court of Appeals of Georgia
• Decided: July 2, 2012
• Docket: A12A0196
• Status: Published

Opinion

THIRD DIVISION MIKELL, P. J., MILLER and BLACKWELL, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

July 2, 2012

In the Court of Appeals of Georgia A12A0196. COLES v. REESE.

BLACKWELL, Judge.

The third time is not always the charm. In November 2008, Brian Coles sued

Sparkle Junell Reese to recover damages for injuries that he sustained in an October

2007 automobile accident. But Coles never perfected service of that lawsuit and

voluntarily dismissed it instead. He then filed a second lawsuit in April 2009, which

he attempted to serve upon Reese under the auspices of the Nonresident Motorist Act,

OCGA § 40-12-1, notwithstanding that he alleged in the second lawsuit that Reese

was a resident of Georgia at the time of the accident. When Reese specifically

appeared and moved to dismiss the second lawsuit for insufficiency service, Coles

voluntarily dismissed it too. By the time Coles dismissed his second lawsuit, more than two years – the period of limitations for a lawsuit for injuries to the person, see

OCGA § 9-3-33 – had passed since the October 2007 automobile accident.

Then, in March 2010, Coles filed his third lawsuit against Reese, which he

characterized as a renewal of the second lawsuit.1 The problem is, a lawsuit is void

if service is never perfected, Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322)

(1994), and a void lawsuit cannot be renewed outside the period of limitations. United

States Fidelity & Guaranty Co. v. Reid, 268 Ga. 432, 432 (491 SE2d 50) (1997).

Reese moved to dismiss the third lawsuit,2 arguing that the period of limitations had

run before it was filed, and it could not properly be characterized as a renewal of the

second lawsuit because Coles never perfected service on the second lawsuit. The

court below granted the motion to dismiss, and Coles appeals. We see no error and

affirm.

1 Under OCGA § 9-2-61, when a plaintiff initiates a lawsuit within the applicable period of limitations, he may subsequently voluntarily dismiss it and renew it “within six months after the dismissal by filing a new complaint, subject only to the requirement of payment of costs in the original action.” Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010). 2 We believe that on June 3, 2011, rather than filing a brief in support of Reese’s Motion to Dismiss, Coles intended to submit a brief entitled “Brief in Support of Response to Defendant’s Motion to Dismiss,”

2 Coles argues that the third lawsuit is a proper renewal of the second lawsuit,

and he contends that he properly perfected service of the second lawsuit by serving

Reese through the Secretary of State under the Nonresident Motorist Act. The Act

provides in pertinent part that, when a nonresident of Georgia is involved in an

automobile accident in this State, she can be served with process through the

Secretary of State “in any action or proceeding against any such nonresident growing

out of [the accident].” OCGA § 40-12-1 (a). Coles says that the Act governs the

service of his second lawsuit, and although he alleged in the second lawsuit that

Reese was a Georgia resident at the time of the accident, he also alleged that she since

had moved from the State. 3

3 In his third lawsuit, Coles alleged for the first time that Reese was a resident of another state both at the time of the accident and at the time the lawsuit was filed. But as to whether service of the second lawsuit was perfected, Coles is bound by his allegation in the second lawsuit –which Reese admitted when she specially appeared in the second lawsuit, and which Coles never withdrew by amending or striking the allegation from his pleadings in the second lawsuit – that Reese was a resident of Georgia at the time of the accident. See Colonial Properties Realty Ltd. Partnership v. Lowder Construction Co., 256 Ga. App. 106, 107-108 (1)(567 SE2d 389)(2002) (“admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions”)(citations and punctuation omitted). See also OCGA § 24-3-30; Mitsubishi Motors Corp v. Coleman, 290 Ga. App. 86, 87-88 (1) (658 SE2d 843) (2008) (in determining whether jurisdiction over a defendant was proper, court properly relied upon admissions in answer of defendant).

3 But as this Court has said before, there is “[a]n entire body of law” that

concerns service of process in such cases. Farrie v. McCall, 256 Ga. App. 446, 447

(568 SE2d 603) (2002) (en banc). And according to that “entire body of law,” the

Nonresident Motorist Act does not apply when, at the time of the accident, the

defendant lived in Georgia. Id. See also Crowder v. Ginn, 248 Ga. 824, 825 (286

SE2d 706) (1982); Andrews v. Stark, 264 Ga. App. 792, 793 (1) (592 SE2d 438)

(2003); Bailey v. Hall, 199 Ga. App. 602, 603 (1)(405 SEd2 579) (1991). Instead, a

Georgia court may obtain jurisdiction of such a defendant under the Georgia Long-

Arm Statue, OCGA § 9-10-91. Crowder, 248 Ga. at 825; Farrie, 256 Ga. App. at 447.

See also OCGA § 9-10-90 (defining a “nonresident” under the Georgia Long Arm

Statue to include any individual who resided in Georgia at the time a tort occurred,

but who subsequently became a resident of another State). And a defendant subject

to jurisdiction under the Long-Arm Statue, unlike a defendant subject to jurisdiction

under the Nonresident Motorist Act, cannot be served through the Secretary of State.

Rather, pursuant to OCGA § 9-10-94, 4 such a defendant must be served either

4 OCGA § 90-10-94 provides, in relevant part, that a person subject to jurisdiction of Georgia’s court under OCGA § 90-10-91 “may be served within the state by any person authorized to make service by the laws of the state, territory,

4 personally or by leaving copies of the summons and complaint “at [her] dwelling

house or usual place of abode with some person of suitable age and discretion then

residing therin.” OCGA § 9-11-4(e)(7).

Consequently, we agree with the court below that Coles never perfected service

of the second lawsuit upon Reese. Having failed to perfect service of the second

lawsuit, it could not be properly renewed outside the period of limitations. And the

period of limitations having run before the filing of the third lawsuit, the court below

properly dismissed the third lawsuit. For these reasons, we affirm the judgment

below.

Judgment affirmed. Mikell, P.J., and Miller, J., concur.

possession, or country in which service is made”.