Echevarria v. Hudgins

325 S.E.2d 423, 173 Ga. App. 39, 1984 Ga. App. LEXIS 2721

• Court: Court of Appeals of Georgia
• Decided: November 21, 1984
• Docket: 68721
• Status: Published

Opinions

Sognier, Judge.

Frank Echevarria brought this action against James Hudgins for personal injuries sustained during an automobile accident in Atlanta, Georgia on November 4, 1980. Echevarria’s complaint against Hudgins was filed on October 28,1982, several days before the expiration of the two-year statute of limitation for personal injuries, OCGA § 9-3-33. However, Hudgins was never served. On June 20, 1983 Hudgins filed a motion to dismiss for failure of service which was granted by the trial court. Echevarria filed a motion for reconsideration which the trial court denied based on the doctrine of laches and the statute of limitation. Echevarria appeals.

1. Appellant’s contention that the trial court erred by dismissing the action since appellee had not been served and therefore had no standing to file the motion to dismiss is without merit. Where the defendant contends that there has been no service or insufficient service of process, a motion to dismiss is the proper method to raise the issue. OCGA § 9-11-12 (b); see McGhee v. Kroger Co., 150 Ga. App. 291 (257 SE2d 361) (1979); Boyer v. King, 129 Ga. App. 690, 691 (200 SE2d 906) (1973).

2. Appellant contends that he demonstrated reasonable diligence in attempting service on appellee and that the trial court therefore erred by dismissing his complaint. Service has never been made on appellee in this action. “[T]he burden is on the plaintiff to investigate and learn where the defendant may be located.” Cheek v. Norton, 106 Ga. App. 280, 285 (126 SE2d 816) (1962). In both the hearing on appellee’s motion to dismiss and the hearing on appellant’s motion to reconsider, the trial court reviewed evidence submitted by appellant and heard testimony from appellant’s attorney regarding his efforts to locate and serve appellee. The trial court found “in the exercise of its discretion, that the efforts to locate and serve Defendant were not done with due diligence.”

Among the numerous facts supporting the trial court’s finding are the following: Appellant’s attorney testified that he was informed shortly after filing suit that service could not be made on appellee at the address appellee had given at the time of the accident because appellee was currently in the army in California. The only verification appellant sought for this information was to call the number appellee had given at the time of the accident and speak with an unidentified male who answered the telephone and stated that appellee was in the army in California. Appellant’s attorney admitted that he never actually went to the Fayette County address to talk personally with the individuals who lived there, never attempted to talk to appellee’s friends or neighbors, and never hired an investigator or skip tracer in an effort to locate appellee. Instead, he turned the matter over to personnel in the office of a United States Senator, relying on them to locate appellee.

Appellant’s attorney claims he continued to call the telephone number appellee had given, though it was not until June 1983, eight months after suit was filed, that he managed to contact appellee’s mother at that number. Naturally she was in a position to accurately inform him that appellee was in the U. S. Marines. On June 20, 1983 a motion to dismiss was filed on behalf of appellee. Appellant’s attorney, however, states he was unable to obtain appellee’s correct address until the end of July 1983 when it was supplied by the Senator’s ffice. Despite that information, service was never made on appellee, a act noted by the trial court on September 19, 1983, the date of the earing on appellant’s motion for reconsideration, almost eleven aonths after the filing of the action and two and a half months after ppellant’s attorney learned of appellee’s correct address.

Decided November 21, 1984 Rehearing denied December 11, 1984 John T. Newton, Jr., for appellant. Philip C. Henry, Alexander H. Booth, for appellee.

The determination whether a plaintiff exercised due diligence in terfecting service after the running of the statute of limitation is a natter within the trial court’s discretion and, as in all instances inolving the trial court’s discretion, his determination will not be disurbed on appeal absent abuse. Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138) (1984). In Jarmon v. Murphy, 164 Ga. App. 763 298 SE2d 510) (1982) we affirmed the trial court’s dismissal of an ction filed just prior to the expiration of the statute of limitation and erved three and one half months after filing. In Jarmon, as in the :ase sub judice, there was no evidence that the defendant attempted o conceal his address. In view of the total lack of service in this case, ve find no abuse of discretion by the trial court in dismissing appelant’s complaint as barred by the statute of limitation and the doc;rine of laches. Smith v. Griggs, 164 Ga. App. 15, 17-18 (2) (296 SE2d 37) (1982); Jarmon v. Murphy, supra; Torok v. Mize, 164 Ga. App. 357, 358 (2) (296 SE2d 738) (1982).

3. Appellant’s remaining enumerations of error are without merit.

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong, P. J., md Pope, J. concur. McMurray, C. J., Carley, Benham, and Beasley, TJ., dissent.