FOURTH DIVISION DILLARD, P. J., MERCIER and PINSON, 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. https://www.gaappeals.us/rules
February 7, 2022
In the Court of Appeals of Georgia A21A1234. FLUELLEN v. DAVIS.
PINSON, Judge.
Danita Fluellen was injured when Mechelle Davis rear-ended a car that
Fluellen was riding in. Fluellen eventually sued Davis to recover for her injuries, but
she failed to perfect service until five months after the statute of limitation expired,
even though her private investigator had verified Davis’s address almost a year
earlier. On this basis, the trial court dismissed her lawsuit. We affirm that dismissal
because it was within the court’s discretion to conclude that Fluellen failed to
exercise the greatest possible diligence in perfecting service. Background
Fluellen was injured when Davis rear-ended the car in which Fluellen was
riding as a passenger. On November 7, 2017, Davis pled nolo contendere to a charge
of following too closely, which triggered Fluellen’s two-year statute of limitation to
bring a personal injury action. See OCGA § 9-3-33; see also OCGA § 9-3-99
(providing that the statute of limitation for the victim of a crime to bring a tort action
is tolled “until the prosecution of such crime or act has become final or otherwise
terminated”); Williams v. Durden, 347 Ga. App. 363, 364–65 (819 SE2d 524) (2018)
(“the limitation period for a tort action arising from a traffic violation is tolled until
the prosecution for the violation is no longer pending”). About 13 months later, in
December 2018, Fluellen sued Davis, but she did not perfect service on Davis until
more than 16 months after that (and five months after the limitation period expired).
The undisputed evidence about Fluellen’s service attempts shows that, in
January 2019, Fluellen initially attempted service at 1201 Barnes Mill Road in
Marietta, which was the address Davis provided for the police report after the
accident. A process server from Atlanta Legal Services was told by someone at 1201
Barnes Mill that Davis had moved out and left no forwarding address.
2 A few days later, Fluellen’s attorneys searched for Davis on Accurint, a people-
finding tool from Lexis Nexis. They found another address in Marietta, at 2400
Barrett Creek Boulevard, Apt. 907. During the next month, Atlanta Legal Services
made three unsuccessful attempts to serve Davis at that address. Davis was not listed
on the gate directory, and the leasing office told ALS she did not live there.
Fluellen then retained a private-investigation company, Gold Investigations,
Inc., to find Davis. On May 28, 2019, Gold reported that they were “able to verify an
exact location” for Davis, at 110 Brookside Court, in Dallas, GA.1 Fluellen did not
try to serve Davis at that address at that time. Notably, 110 Brookside was where
Davis was eventually served.
Six days after informing Fluellen of the 110 Brookside address, Gold updated
its report to clarify that while “[u]tilities [were] found under identifiers” at 110
Brookside Court, Davis “may have recently moved” to 2400 Barrett Creek Boulevard,
Apt. 1227. By August 2019, ALS had made five unsuccessful attempts to serve Davis
at 2400 Barrett Creek Boulevard, Apt. 1227.
1 The initial report from Gold Investigations was dated May 1, 2019, but Fluellen’s counsel averred that the report “was provided” on May 28, 2019, and the trial court cited the later date in its order. In the absence of contrary evidence, we presume the findings of the trial court are correct. Cox v. Bank of Am., N.A., 321 Ga. App. 806, 807 (2) (742 SE2d 147) (2013).
3 Fluellen then asked Gold to run another search. In October 2019, Gold reported
that “[a]fter a nationwide detailed investigative search, we were unable to verify an
exact location” for Davis. After receiving that report, Fluellen’s counsel continued
trying regular searches on Accurint, but they did not turn up any new addresses.
Fluellen’s attorney averred that, as of April 10, 2020, he did not know Davis’s current
address.
On November 7, 2019, the statute of limitation expired for Fluellen’s claim
against Davis. On that day, Davis filed a special appearance, without submitting to
jurisdiction or venue, to assert affirmative defenses based on laches, lack of service,
and the statute of limitation. Davis followed up a few months later with a motion to
dismiss on the same grounds.
While the motion to dismiss was pending, on April 10, 2020, a process server
finally served Davis in person at the 110 Brookside Court address. The trial court
then granted Davis’s motion to dismiss. The trial court concluded that Fluellen had
not exercised the required degree of diligence to serve Davis because she had made
“zero service attempts” during the five months between the day the statute of
limitations expired (and Davis filed her special appearance) and the day Davis was
finally served. The court also rejected Fluellen’s argument that her suit should be
4 allowed to proceed because Davis was not prejudiced by the lack of timely service.
This appeal followed.
Discussion
The determination whether a plaintiff is guilty of laches for 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.” McGhee v. Jones, 287 Ga. App. 345, 346 (652 SE2d 163) (2007) (cleaned
up). Here, Fluellen argues that she met and exceeded the required degree of
diligence “given the information available to her, including evidence showing that
Ms. Davis could not be found and that her address was incorrect.” We decline to
disturb the trial court’s contrary conclusion.
To commence a lawsuit, a plaintiff must both file her complaint and serve it on
the defendant. See OCGA § 9-11-4; Anglin v. State Farm Fire & Cas. Ins. Co., 348
Ga. App. 362, 364 (1) (823 SE2d 51) (2019). The complaint must be filed within the
time set by statute of limitation, but, under certain circumstances, “the law allows the
same to be served beyond that applicable period.” Van Omen v. Lopresti, 357 Ga.
App. 9, 10 (2) (849 SE2d 758) (2020) (citation and punctuation omitted). But when,
as here, the statute of limitation has run and the defendant has raised a service defense
5 in court, the plaintiff must show that, after the limitation period expired, she exercised
the “greatest possible diligence” to perfect service; only then will service “relate
back” in time to the filing of the complaint and thus be timely. Id. at 10–11, 14 (2);
see also Swain v. Thompson, 281 Ga. 30, 32 (2) (635 SE2d 779) (2006). In
determining whether a plaintiff exercised the greatest possible diligence, “we focus
on the plaintiff’s actions, not the Defendant’s.” Lipscomb v. Davis, 335 Ga. App. 880,
881 (783 SE2d 398) (2016) (citation and punctuation omitted). And establishing the
requisite diligence is the plaintiff’s burden. Van Omen, 357 Ga. App.
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FOURTH DIVISION DILLARD, P. J., MERCIER and PINSON, 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. https://www.gaappeals.us/rules
February 7, 2022
In the Court of Appeals of Georgia A21A1234. FLUELLEN v. DAVIS.
PINSON, Judge.
Danita Fluellen was injured when Mechelle Davis rear-ended a car that
Fluellen was riding in. Fluellen eventually sued Davis to recover for her injuries, but
she failed to perfect service until five months after the statute of limitation expired,
even though her private investigator had verified Davis’s address almost a year
earlier. On this basis, the trial court dismissed her lawsuit. We affirm that dismissal
because it was within the court’s discretion to conclude that Fluellen failed to
exercise the greatest possible diligence in perfecting service. Background
Fluellen was injured when Davis rear-ended the car in which Fluellen was
riding as a passenger. On November 7, 2017, Davis pled nolo contendere to a charge
of following too closely, which triggered Fluellen’s two-year statute of limitation to
bring a personal injury action. See OCGA § 9-3-33; see also OCGA § 9-3-99
(providing that the statute of limitation for the victim of a crime to bring a tort action
is tolled “until the prosecution of such crime or act has become final or otherwise
terminated”); Williams v. Durden, 347 Ga. App. 363, 364–65 (819 SE2d 524) (2018)
(“the limitation period for a tort action arising from a traffic violation is tolled until
the prosecution for the violation is no longer pending”). About 13 months later, in
December 2018, Fluellen sued Davis, but she did not perfect service on Davis until
more than 16 months after that (and five months after the limitation period expired).
The undisputed evidence about Fluellen’s service attempts shows that, in
January 2019, Fluellen initially attempted service at 1201 Barnes Mill Road in
Marietta, which was the address Davis provided for the police report after the
accident. A process server from Atlanta Legal Services was told by someone at 1201
Barnes Mill that Davis had moved out and left no forwarding address.
2 A few days later, Fluellen’s attorneys searched for Davis on Accurint, a people-
finding tool from Lexis Nexis. They found another address in Marietta, at 2400
Barrett Creek Boulevard, Apt. 907. During the next month, Atlanta Legal Services
made three unsuccessful attempts to serve Davis at that address. Davis was not listed
on the gate directory, and the leasing office told ALS she did not live there.
Fluellen then retained a private-investigation company, Gold Investigations,
Inc., to find Davis. On May 28, 2019, Gold reported that they were “able to verify an
exact location” for Davis, at 110 Brookside Court, in Dallas, GA.1 Fluellen did not
try to serve Davis at that address at that time. Notably, 110 Brookside was where
Davis was eventually served.
Six days after informing Fluellen of the 110 Brookside address, Gold updated
its report to clarify that while “[u]tilities [were] found under identifiers” at 110
Brookside Court, Davis “may have recently moved” to 2400 Barrett Creek Boulevard,
Apt. 1227. By August 2019, ALS had made five unsuccessful attempts to serve Davis
at 2400 Barrett Creek Boulevard, Apt. 1227.
1 The initial report from Gold Investigations was dated May 1, 2019, but Fluellen’s counsel averred that the report “was provided” on May 28, 2019, and the trial court cited the later date in its order. In the absence of contrary evidence, we presume the findings of the trial court are correct. Cox v. Bank of Am., N.A., 321 Ga. App. 806, 807 (2) (742 SE2d 147) (2013).
3 Fluellen then asked Gold to run another search. In October 2019, Gold reported
that “[a]fter a nationwide detailed investigative search, we were unable to verify an
exact location” for Davis. After receiving that report, Fluellen’s counsel continued
trying regular searches on Accurint, but they did not turn up any new addresses.
Fluellen’s attorney averred that, as of April 10, 2020, he did not know Davis’s current
address.
On November 7, 2019, the statute of limitation expired for Fluellen’s claim
against Davis. On that day, Davis filed a special appearance, without submitting to
jurisdiction or venue, to assert affirmative defenses based on laches, lack of service,
and the statute of limitation. Davis followed up a few months later with a motion to
dismiss on the same grounds.
While the motion to dismiss was pending, on April 10, 2020, a process server
finally served Davis in person at the 110 Brookside Court address. The trial court
then granted Davis’s motion to dismiss. The trial court concluded that Fluellen had
not exercised the required degree of diligence to serve Davis because she had made
“zero service attempts” during the five months between the day the statute of
limitations expired (and Davis filed her special appearance) and the day Davis was
finally served. The court also rejected Fluellen’s argument that her suit should be
4 allowed to proceed because Davis was not prejudiced by the lack of timely service.
This appeal followed.
Discussion
The determination whether a plaintiff is guilty of laches for 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.” McGhee v. Jones, 287 Ga. App. 345, 346 (652 SE2d 163) (2007) (cleaned
up). Here, Fluellen argues that she met and exceeded the required degree of
diligence “given the information available to her, including evidence showing that
Ms. Davis could not be found and that her address was incorrect.” We decline to
disturb the trial court’s contrary conclusion.
To commence a lawsuit, a plaintiff must both file her complaint and serve it on
the defendant. See OCGA § 9-11-4; Anglin v. State Farm Fire & Cas. Ins. Co., 348
Ga. App. 362, 364 (1) (823 SE2d 51) (2019). The complaint must be filed within the
time set by statute of limitation, but, under certain circumstances, “the law allows the
same to be served beyond that applicable period.” Van Omen v. Lopresti, 357 Ga.
App. 9, 10 (2) (849 SE2d 758) (2020) (citation and punctuation omitted). But when,
as here, the statute of limitation has run and the defendant has raised a service defense
5 in court, the plaintiff must show that, after the limitation period expired, she exercised
the “greatest possible diligence” to perfect service; only then will service “relate
back” in time to the filing of the complaint and thus be timely. Id. at 10–11, 14 (2);
see also Swain v. Thompson, 281 Ga. 30, 32 (2) (635 SE2d 779) (2006). In
determining whether a plaintiff exercised the greatest possible diligence, “we focus
on the plaintiff’s actions, not the Defendant’s.” Lipscomb v. Davis, 335 Ga. App. 880,
881 (783 SE2d 398) (2016) (citation and punctuation omitted). And establishing the
requisite diligence is the plaintiff’s burden. Van Omen, 357 Ga. App. at 11 (2).
Here, it is undisputed that the statute of limitation ran on November 7, 2019,
that Davis filed a pleading asserting a service defense on the same date, and that
Fluellen did not serve Davis until April 10, 2020. So the only question is whether
Fluellen acted with the “greatest possible diligence” from November 7, 2019, to April
10, 2020, to perfect service. Van Omen, 357 Ga. App. at 14 (2).
The trial court did not abuse its discretion in concluding that Fluellen did not
act with the requisite diligence. Fluellen does not have a good explanation for why
she did not attempt to serve Davis at 110 Brookside Court until April 10, 2020.
According to Fluellen’s research, four different addresses might have been associated
with Davis: 1201 Barnes Mill Road, 2400 Barrett Creek Boulevard Apt. 907, 2400
6 Barrett Creek Boulevard Apt. 1227, and 110 Brookside Court. 110 Brookside was the
only address where service was not attempted earlier. And that omission is all the
more striking when compared with Fluellen’s diligence in attempting service at other
potential addresses. When Fluellen learned that Davis might be at Barrett Creek
Boulevard Apt. 907, she attempted service at that address three times during the next
month. When she learned that Davis might be at the other Barrett Creek apartment,
she made five attempts in two months. But when Gold Investigations reported that
they were “able to verify an exact location” for Davis at 110 Brookside Court, Davis
took no action. And when the statute of limitations expired and Davis asserted a
service defense—triggering the need for Fluellen to act with the “greatest possible
diligence” to perfect service, Van Omen, 357 Ga. App. at 14 (2)—Fluellen waited
another five months before attempting service at 110 Brookside, the one address that
had not been tried.
We are not persuaded by Fluellen’s argument that she did not attempt service
at 110 Brookside because she was “mistakenly but convincingly informed that this
address was incorrect” and she “did not want to waste further time and resources
attempting service on a defunct address, especially since Georgia courts have
penalized such redundant attempts.” Fluellen is referring to the two updated reports
7 from Gold Investigations, the first stating that Davis “may” have moved to 2400
Barrett Court, Apt. 1227, and the second that Davis could not be connected to a
verified address anywhere in the country. But the first update came six days after
Gold’s original report; Fluellen does not explain why she made no service attempt at
110 Brookside during the time when she was told that address was Davis’s “verif[ied]
. . . exact location.” And after the update, Fluellen was told only that Davis “may”
have moved to 2400 Barrett Court. Although it was also still possible that Davis was
at 110 Brookside, Fluellen then made five service attempts at 2400 Barrett Court but
none at 110 Brookside. Even after the second update, when Gold reported no
verifiable address for Davis, the fact remained that the only address that had ever
been identified—110 Brookside—had never been tried. The trial court reasonably
concluded that such an effort did not amount to the “greatest possible diligence.”
Fluellen tries to justify the failure to try service at 110 Brookside by citing
Wade v. Whalen as an example of courts “penaliz[ing]” plaintiffs for making attempts
at service that were known to be fruitless. 232 Ga. App. 765 (504 SE2d 456) (1998),
overruled in part on other grounds by Giles v. State Farm Mut. Ins. Co., 330 Ga. App.
314 (765 SE2d 413) (2014). But the facts here are different from Wade’s. There, we
concluded that the plaintiff failed to exercise the greatest possible diligence, and we
8 observed that one of his many errors was causing delay in service by providing a
sheriff with an address known to be outdated even though the post office had the
current address. Id. at 767–68 (1). Here, by contrast, Fluellen was told only that 110
Brookside “may” be outdated, and there was no clearly correct alternate address that
Fluellen should have used instead of 110 Brookside. So, unlike in Wade, checking
110 Brookside would have been prudent, not dilatory.
In short, under the facts presented to the trial court, it appropriately exercised
its discretion in concluding that Fluellen failed to exercise the greatest possible
diligence in perfecting service. See UHS of Peachford v. Brady, ___ Ga. App. ___
(864 SE2d 129) (2021) (plaintiff did not exercise greatest possible diligence when
defendant’s “identity and address for service were no mystery to [the plaintiff]”);
Lipscomb, 335 Ga. App. at 881 (plaintiff did not exercise greatest possible diligence
when he made only one attempt to serve the defendant after the defendant asserted
a service defense). We therefore affirm the trial court’s dismissal of the action. See
Van Omen, 357 Ga. App. at 16 (3).
Judgment affirmed. Dillard, P. J., and Mercier, J., concur.