THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, 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
July 31, 2025
In the Court of Appeals of Georgia A25A1075. PERRY v. PETERSON
PADGETT, Judge.
Michael Perry appeals the trial court’s order granting Daryll Peterson’s1
“motion to dismiss for failure to perfect service” and dismissing Perry’s complaint
with prejudice. For the reasons that follow, we reverse.
We review a trial court’s order of dismissal for insufficiency of service of
process for an abuse of discretion. Parsons v. Mertz, 320 Ga. App. 786, 788 (1) (740
SE2d 743) (2013). “Such an abuse occurs where the trial court’s ruling is unsupported
by any evidence of record or where th[e] ruling misstates or misapplies the relevant
1 We recognize that in the record below and in his own filing on appeal, Defendant-Appellee’s correct last name appears as “Pearson” and not Peterson. Within this opinion, we refer to Defendant-Appellee as Pearson. law.” Id. (citation and punctuation omitted). Stated otherwise, on the latter basis,
where an appeal presents questions of law, this Court owes no deference to the trial
court’s ruling and we review those questions de novo. Szymanski v. Truist Bank, 372
Ga. App. 43, 43 (903 SE2d 752) (2024).
With these standards in mind, the record shows that Perry and Pearson were
involved in a motor vehicle accident on June 28, 2022, and approximately 16 months
later, on October 19, 2023, Perry filed suit against Pearson in the State Court of Bryan
County seeking damages for personal injuries arising out of the accident. On
November 16, 2023, Pearson filed a special appearance and answer to the complaint,
propounded written discovery to Perry, and responded to written discovery Perry had
served with the complaint. Shortly thereafter, on December 15, 2023, Perry moved to
transfer venue to the correct forum, the State Court of Carroll County. The order
transferring venue to Carroll County was entered on January 5, 2024.
Following transfer of the case to Carroll County, on January 23, 2024, Perry’s
counsel mailed a copy of the summons, complaint, and a sheriff’s entry of service
form to the Carroll County Sheriff’s Office. And on February 15, 2024, a sheriff’s
deputy personally served Pearson with a copy of the complaint and summons. Perry’s
2 counsel received the completed sheriff’s entry of service form on March 1, 2024,
which again showed that personal service was made on Pearson at his residence on
February 15, 2024.
Pearson then filed an answer to Perry’s complaint in Carroll County on March
14, 2024, denying liability and asserting a number of affirmative defenses, including
insufficiency of service of process.2 As he did in the Bryan County action, Pearson also
propounded written discovery to Perry and responded to the latter’s written discovery
at the same time he filed his answer to the complaint.
Four months later, on July 16, 2024, Pearson filed a motion to dismiss “for
failure to perfect service of process,” arguing that because the statute of limitations
expired on June 28, 2024, and Perry had “not perfected service of process upon
[Pearson],” the complaint should be dismissed with prejudice. Perry filed his response
in opposition to the motion on August 16, 2024, at which time he also filed the
sheriff’s entry of service showing that Pearson was personally served on February 15,
2 Unlike Pearson’s answer in Bryan County, which he titled and alleged as a “Special Appearance and Answer,” his answer once the case was brought in Carroll County was denominated not as a special appearance, but as an “Answer to Plaintiff’s Complaint.” 3 2024. The trial court granted the motion and dismissed Pearson’s complaint with
prejudice, holding:
Service can be perfected when a proper service agent delivers the complaint and the summons to the defendant, and service is fil[ ]ed with the clerk. A Sheriff’s Deputy was sent to the defendant’s address on February 15[ ], 2024, and recorded that the Defendant was serv[ ]ed via personal service. . . . However, these operations were not e-filed with the Clerk . . . until August 16[,] . . . well outside both the statu[t]e of limitations (June 28[ ], 2024) and outside of any statutory safe harbors. . . . The plaintiff has not show[n] . . . in the month in between [the motion to dismiss] and the filing [of proof of service] . . . the [g]reatest [p]ossible [d]iligence being exercised in seeking to p[er]fect service.
Upon Perry’s motion for reconsideration of that order, the trial court further held that
it is the filing of the proof of service that commences an action against a defendant and
that without a filed proof of service, there is no “live action.” Thus, the trial court
ruled that because “service was [not] made valid” until the filing of proof of service
on August 16, 2024 — a date after the two-year statute of limitations had run — Perry
was required to have exercised the “greatest possible diligence” in filing the proof of
service once Pearson had filed the motion to dismiss on July 16, 2024. While
4 acknowledging that Perry had 30 days to respond to Pearson’s motion to dismiss,3 the
trial court nonetheless determined that Perry had not demonstrated the requisite
diligence in filing the proof of service and that therefore, service on Pearson would not
relate back to the date of the filing of the complaint and the action was time-barred.
This appeal followed.
In three related enumerations of error, Perry argues that the trial court erred in
treating the filing of proof of service as an integral element of service itself, concluding
that an action against a defendant “does not begin” until the plaintiff files a return of
service with the court, and thus holding that Perry’s complaint should be dismissed
for insufficiency of process. Notably, Pearson — in his arguments before both the trial
court and this Court — “does not contest the sufficiency upon whom service was
made, or whether service was proper,” and in fact affirmatively concedes that
“service [on Pearson] in Carroll County was effectuated on February 15, 2024, four
months before the statute of limitations ran.” We now reverse.
1. We agree that the trial court erred in treating the filing of proof of service as
an element of service itself, in contravention of OCGA § 9-11-4 (h).
3 Uniform Sate Court Rule 6.2. 5 We begin with the plain language of OCGA § 9-11-4,4 which governs process,
service of process, and the “return” or proof of service. Under OCGA § 9-11-4 (e),
service of process — or the method by which a defendant is provided with a summons
and complaint — on an individual defendant such as Pearson, occurs when a person
of the type identified in OCGA § 9-11-4 (c) personally provides the summons and
complaint to the defendant, leaves the summons and complaint at the defendant’s
dwelling with a person of suitable age and discretion who also resides at the dwelling,
or delivers the summons and complaint to an agent authorized by appointment or by
law to receive service of process on behalf of the defendant. See OCGA § 9-11-4 (e)
(7) (“Service shall be made by delivering a copy of the summons attached to a copy
of the complaint as follows . . . .). There are no other requirements for accomplishing
“service of process” on an individual defendant, located in the state, in a negligence
action such as this one, other than that which is set forth in OCGA § 9-11-4 (e) (7).
4 “In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction. And in considering the meaning of a statute, our charge is to presume that the General Assembly meant what it said and said what it meant. So, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, . . . and seek to avoid a construction that makes some language mere surplusage.” Kemron v. Environmental Svcs., Inc. v. Prospira Paincare, Inc., 362 Ga. App. 727, 730 (870 SE2d 53 (2022) (citation and punctuation omitted). 6 See generally Ga. Pines Community Svc. Bd. v. Summerlin, 282 Ga. 339, 340 (1) (647
SE2d 566) (2007) (“In statutes regarding ‘service of process,’ the word ‘service’ is
a term of art referring to the ‘formal delivery of a writ, summons, or other legal
process.’ The ‘formal delivery’ may be accomplished by handing the ‘process’ —
here, the summons and complaint — to a specific individual.”) (citation omitted).
Separate and apart from accomplishing this formal delivery of the summons and
complaint to a defendant, OCGA § 9-11-4 (h) provides:
The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date. If the proof of service is not filed within five business days, the time for the party served to answer the process shall not begin to run until such proof of service is filed. . . . Failure to make proof of service shall not affect the validity of the service.
OCGA § 9-11-4 (h) (emphasis supplied). Here, the trial court conflated service of
process under OCGA § 9-11-4 (e) with the filing of proof of service, and therefore
incorrectly expanded the definition of “service of process” or what it means to
accomplish service of process, in a way that contravenes the plain language of OCGA
§ 9-11-4 (h). See Kemron Environmental, 362 Ga. App. at 732 (holding that OCGA §
9-11-4 (h) “has nothing to do with how a [party] is to be served” under the full
7 provisions of OCGA § 9-11-4; “[t]o the contrary, OCGA § 9-11-4 (h) concerns the
‘return’ of service once [service] has already been made”).
Our case law is fully consistent with, and reinforces, the clear instruction of
OCGA § 9-11-4 (h) that proof of service is not part of the act of service and shall not
affect its validity. See Lewis v. Waller, 282 Ga. App. 8, 9-10 (1) (a) (637 SE2d 505)
(2006) (holding that plaintiff was entitled to default judgment where there was no
dispute that defendant was served and had not answered, even though plaintiff filed
proof of service five months after service and with the motion for default judgment);5
McPherson v. McPherson, 238 Ga. 271, 273 (4) (232 SE2d 552) (1977) (rejecting the
argument that the trial court’s improper dismissal could nonetheless be affirmed based
on plaintiff’s failure to make a return of service as required by the statute because it
also provided that “[f]ailure to make proof of service shall not affect the validity of the
service”); Cosby v. Lewis, 308 Ga. App. 668, 674 (2) (708 SE2d 585) (2011)
(recognizing that compliance with “proof of service” provisions of OCGA § 9-11-4
5 While the dispute in Lewis was governed by an earlier version of OCGA § 9-11- 4 (h) that did not expressly extend the time for answering, but rather, required the proof of service to be filed “promptly and, in any event, within the time during which the person served must respond to the process,” our holding rested on the same language present in the current statute: “[f]ailure to make proof of service [does] not affect the validity of the service.” Lewis, 282 Ga. App. at 10 (1) (a) (citations omitted). 8 (h) “bears no weight in determining whether proper service was in fact made”);
Newsome v. Johnson, 305 Ga. App. 579, 583-584 (1) (699 SE2d 874) (2010) (rejecting
the argument that the timing of the filing of the return of service has any effect on the
question of whether proper service was made).
Our Supreme Court’s decision in Jones v. Bibb Brick Co., 120 Ga. 321 (48 SE
25) (1904), relied upon by Pearson and the trial court and which long precedes
adoption of the Civil Practice Act, does not require a different result. Particularly in
light of the plain language of OCGA § 9-11-4 (h), we read the language in Jones to hold
that, in the context of a default judgment or a motion to set aside such a judgment, as
was the case in Jones, proof of service by way of a return is required to assure the trial
court of the fact of service and jurisdiction over the defendant. In the absence of such,
a trial court “ought” not proceed with entry of a default judgment until that proof is
supplied. See Jones, 120 Ga. at 325 (“Process and service are essential. But the return,
being only evidence of what the officer has done in serving the writ, . . . . it is manifest
that a court ought not to proceed without having a legal return of record to show that
its process had been actually served and that it had acquired jurisdiction over the
9 person of the defendant.”).6 That is, the Court held that where either process or the
return did not exist or was void for not complying with the requirements of actual
service, a judgment “predicated solely thereon” — a default judgment — was a
nullity. Id. at 325.7 More broadly and relevant here, the Court’s additional
observations in Jones underscore that where actual service has been made, the
6 The Supreme Court’s decision in Jones, and the trial court below, cite to the Supreme Court’s decision in Callaway v. Douglasville College, 99 Ga. 623 (25 SE 850) (1896), as support for the proposition that, in the absence of a return of service, “the court cannot proceed.” Jones, 120 Ga. at 324. However, the decisions in Jones and Callaway are themselves inconsistent on this point. Specifically, as it considered whether to set aside a default judgment, the court in Jones was explicit that the return itself “is not jurisdictional,” and hence observed that “it is manifest that a court ought not proceed without having a legal return of record to show that its process had been actually served and that it had acquired jurisdiction over the person of the defendant.” Id. (emphasis supplied). However, the notion that a court “cannot proceed” with a default judgment without a return of service comes from the court’s two-sentence opinion in Callaway, which takes the contrary position: “A legal return of service is essential in a civil action to give the court jurisdiction of the person of the defendant, and until such return has been made the defendant is not required to plead to the merits.” Callaway, 99 Ga. at 623. 7 For this very functional reason, before entry of a default judgment, the uniform rules of our superior and state courts require the party seeking the judgment to certify in writing, among other things, the date and type of service effected; that proof of service was filed with the court within five business days of service, or if not filed within those five days, the date on which proof was filed; and that no defensive pleading has been filed by the defendant. See Uniform Superior Court Rule 15; State Court Rule 15. 10 particulars of the proof of service, which we hold to include the fact of filing, are issues
that can be corrected later in the proceedings. Id. As the court stated:
Where there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause. If there has been service and a voidable or defective return, it may be amended even after judgment, so as to save that which has been done under service valid in fact but incompletely reported to the court. For in its last analysis it is the fact of the service, rather than the proof thereon by the return, which is of vital importance.
Id. As we have explained in subsequent decisions,
[t]his comports with the well settled rule that the critical question is the fact of service and not the nature of the return. Thus, the actual facts control, and if jurisdiction was actually acquired over the persons of the defendants, that fact should govern. It is the fact of service which confers jurisdiction, and not the return, and the latter may be amended to speak the truth.
Cosby, 308 Ga. App. at 674 (2) (quoting Newsome v. Johnson, 305 Ga. App. 579, 583-
584 (1) (699 SE2d 874) (2010)); see also Montgomery v. USS Agri-Chemical Div., 155
Ga. App. 189, 191-192 (2) (270 SE2d 362) (1980) (finding that prior decisions’
distinction among “void” and “voidable” returns of service “cannot be reconciled
with the Civil Practice Act” and its command that “[f]ailure to make proof of service
11 shall not affect the validity of service”); Olvey v. C & S Bank of Clayton County, 146
Ga. App. 484, 485 (246 SE2d 485) (1978) (upholding denial of motion to set aside
default judgment where proof of service was filed two and three months after service
on defendants and three days before default judgment was entered, and rejecting the
proposition that a late-filed return of service, where there is no challenge to service
itself, precludes a trial court from entering a default judgment, so long as the return
is filed before entry of that judgment).
Finally, we reject Pearson’s argument that the plain language of OCGA § 9-11-4
(h) and the case law cited herein are “irrelevant” because the timing of the filing of
proof of service here was more than two years after the accident, a time at which he
maintains the statute of limitations had expired. Because the plain language of OCGA
§ 9-11-4 makes clear that the filing of proof of service is not part of service itself and
because Pearson concedes that service was made on him four months before the
statute of limitations would have run, thereby providing the trial court with
jurisdiction,8 Perry’s action was “brought within two years after the right of action
8 See Division 2, infra. 12 accrue[d],” in compliance with OCGA § 9-3-33.9 The act of filing proof of service —
which explicitly does not affect the validity of service — at a date beyond which the
statute of limitations would have run, had suit not been filed and service been made
in a timely fashion, did not retroactively void service that complied with OCGA § 9-
11-4 (e) (7) and divest the trial court of authority to hear the case.
2. Closely related to the foregoing, we likewise agree that the trial court erred
in concluding that, where a plaintiff does not file proof of service within five business
days of service, “the action against the [d]efendant does not begin” until the plaintiff
files proof of service with the court pursuant to OCGA § 9-11-4 (h).
More precisely, “[a] suit commences only after the filing of a [complaint] and
the proper service of process upon the defendant as required and authorized by law.”
Anglin v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 362, 364 (1) (823 SE2d 51)
(2019) (citation and punctuation omitted). For it is the effecting, perfecting, or
accomplishing of service under OCGA § 9-11-4 (e) or (f) that invests the court with
jurisdiction over the defendant, which in turn, constitutes a “pending suit.” See
Thorburn Co. v. Allied Media of Ga., Inc., 237 Ga. App. 800, 802 (1) (516 SE2d 833)
9 See also Division 4, infra. 13 (1999).10 With valid service on a defendant and thus jurisdiction and a pending suit,
the only consequence of a plaintiff not filing proof of that service within five business
days is that the 30-day time period for the properly served defendant to answer the
complaint does not begin to run until the proof is filed. See OCGA § 9-11-4 (h).
Failure to file proof of service within five business days pursuant to OCGA § 9-11-4
(h) does not divest the court of jurisdiction over a properly served defendant or
provide an independent basis for challenging the sufficiency of service of process. See
Bonner v. Bonner, 272 Ga. 545, 546 (2) (533 SE2d 72) (2000) (personal jurisdiction is
obtained “by appearance or by serving the proper process in the manner required by
law”) (citation and punctuation omitted); OCGA § 9-11-4 (h). Thus, the only effect
of the timing of Perry’s initial non-filing of the proof of service was to extend the time
for Pearson to answer the complaint — a procedural option he chose not to avail
himself of — and nothing more. See OCGA 9-11-4 (h); see also Florez v. State, ex rel.
10 Again, in line with our holding in Division 1, our discussion in Thorburn about “perfecting service” in order to “constitute a pending suit” related solely to service — the act of delivering the summons and complaint to the defendant in the manner authorized by law — under a prior version of OCGA § 9-11-4 (d) and a similar service provision under the Business Code, OCGA § 14-2-1510. Thorburn, 237 Ga. App. at 802 (1). Thorburn does not stand for the proposition, as Pearson argued before the trial court, that “perfecting,” effecting, or accomplishing service includes filing proof of service as set forth in OCGA § 9-11-4 (h). 14 Altman, 311 Ga. App. 378, 379 (1) (a) (715 SE2d 782) (2011) (emphasizing that the
effect of a plaintiff failing to file proof of service within the time provided by the
statute is to toll the running of the time for the defendant to answer).11
3. We thus agree that the trial court erred in dismissing Perry’s complaint for
insufficiency of service of process.
First, where, as here, the defendant conceded that valid service was made four
months before the statute would have run, such concession obviated the need for any
proof at all that service was sufficient and dismissal not warranted. See Roberts v.
Roberts, 226 Ga. 203, 205 (1) (173 SE2d 675) (1970) (finding the statutory language
“[f]ailure to make proof of service shall not affect the validity of service” “virtually
11 By way of further example, there are other procedural postures wherein jurisdiction is established over the defendant by valid service, yet a lack of proof of service within the record does not preclude the parties from proceeding or the court from acting. For instance, where a defendant is properly served and chooses to file his or her answer within 30 days from the date of service, as was the case here, a trial court is nonetheless empowered to proceed with the case regardless of whether the plaintiff has yet filed proof of service with the clerk. Moreover, defendants in some civil actions may choose not to assert insufficiency of service of process as an affirmative defense, and in other actions, they may assert the defense but never move to dismiss on that basis. Certainly in these scenarios, a plaintiff’s failure to file proof of service within five business days of service does not strip the trial court of its authority. 15 eliminates the requirement of proof of service, except such as will satisfy the trial
court in its discretion” as it rules on whether service was actually accomplished).
Even if Pearson had not conceded valid service within the statute and instead
planned to contest compliance with OCGA § 9-11-4 (e) (7), he bore the burden of
showing improper service, and once the return came before the court as evidence, the
return was prima facie proof “as to the facts recited therein,” which could only be set
aside by clear and convincing evidence that those facts were untrue. Russell v. Muscogee
County School Dist., 341 Ga. App. 229, 232 (1) (800 SE2d 7) (2017) (citations and
punctuation omitted). In order for Pearson to carry his burden of showing improper
service, he was required to present evidence that the summons and complaint were
not provided to him in the manner prescribed by OCGA § 9-11-4 (e) (7), not simply
to point to the fact that a proof of service had not been filed. This is because, again, a
failure to file such proof expressly does not affect the validity of service and, according
to our case law, that proof can be supplied or filed before the court enters an order or
judgment. Moreover, the particular date on which Perry filed proof of service here did
not alter the facts recited within the sheriff’s entry form — namely, that personal
service on Pearson was made on February 15, 2024, more than four months before the
16 statute of limitations would have expired. For these reasons and those discussed,
supra, in Divisions 1 and 2, the trial court erred in granting Pearson’s motion to
dismiss for insufficiency of service of process.
4. Finally, although not denominated as an enumeration of error, we would be
remiss if our de novo review did not address the trial court’s application of a
“diligence” standard for the filing of the proof of service and its further determination
of whether that filing would “relate back” to the filing of the complaint. The trial
court’s reliance on case law considering when service will relate back to the time of
the filing of the complaint was inapposite here. The issue of “diligence” in effecting
service and the related determination of whether service will relate back is limited to
the unique circumstances where the complaint is filed near the expiration of the
statute of limitations and service is effected after the statute has expired, such that the
latter will relate back and protect the action from being time-barred. See generally
Griffin v. Trinidad, 357 Ga. App. 492, 494 (1) (850 SE2d 878) (2020); Giles v. State
Farm Mut. Ins. Co., 330 Ga. App. 314, 317-318 (2) (765 SE2d 413) (2014). That case
law is inapplicable where the complaint is filed and service is effected before the
statute runs, and proof of service is filed after the statute would have run, had the
17 complaint not been filed and service not been effected before expiration of the statute.
Here, both the proof of service and Pearson’s own admission established that service
was effected well before the statute ran; there was thus nothing to which service
needed to “relate back.” Our decisions discussing the diligence required in order for
service to relate back to the filing of the complaint, when service is made after the
statute of limitations has run, have no bearing on the timing of filing a proof of service
under OCGA § 9-11-4 (h).
Judgment reversed. Doyle, P. J., and Markle, J., concur.