Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jenkins v. Keown

Court of Appeals of Georgia, Fourth Division

June 27, 2019

JENKINS et al.
v.
KEOWN et al.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          DOYLE, PRESIDING JUDGE.

         Following an automobile collision, Sarah Jenkins and her adult daughter, Regina Jenkins, sued the other driver, Kyle Keown, who allegedly rear-ended their vehicle, injuring them. After voluntarily dismissing that action, the Jenkinses filed the instant case as a renewal action. GEICO Indemnity Company, the alleged uninsured motorist carrier for Sarah, filed an answer and later moved for summary judgment, raising the issues of personal service on Keown and timeliness under the statute of limitation. Following a hearing, the trial court granted the motion and dismissed the case. On appeal, the Jenkinses argue that the trial court erred for the following reasons: (1) the record shows that Keown was properly served; (2) the statute of limitation was tolled under OCGA § 9-3-99 because Keown allegedly committed a criminal traffic violation; and (3) only GEICO (not Keown) moved for summary judgment, so dismissing the entire case was improper. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.[1]

         With respect to service of process, "[a] trial court's finding of insufficient service of process will be upheld on appeal absent a showing of an abuse of discretion. Factual disputes regarding service are to be resolved by the trial court, and the trial court's findings will be upheld if there is any evidence to support them."[2]

         This case is a renewal action from a prior complaint. The Jenkinses have alleged that on April 18, 2013, Regina was driving with her mother, Sarah, as a passenger when Keown rear-ended them, causing them both injuries. Although the prior complaint does not appear in the record, the parties do not dispute the trial court's statement that the prior action was filed on April 17, 2015, two days before the expiration of the two-year statute of limitation for a tort claim.[3] The Jenkinses attempted to serve Keown in that action by delivering the summons and complaint to his mother at 1508 Village Way in Jesup, Georgia, in June 2016. After GEICO moved for summary judgment challenging service, the Jenkinses voluntarily dismissed the action.[4]

         The Jenkinses filed the renewal action (the instant case) on March 9, 2017.[5] On March 21, 2017, an entry of service was filed showing that the sheriff was unsuccessful in attempts to serve Keown at 1508 Village Way, with a notation that Keown had moved and had "unknown whereabouts." On April 3, 2017, the Jenkinses moved to serve Keown by publication.

         On April 10, 2017, GEICO filed an answer denying coverage or liability to Regina as an insured. On April 17, 2017, an order of service by publication was entered. On May 23, 2017, another unsuccessful entry of service was filed, noting that Keown was "living in Statesboro, GA, last known whereabouts per sister."

         On September 20, 2017, GEICO moved for summary judgment in part on the ground that the Jenkinses did not successfully serve Keown in the original action, so the renewal action was barred by the statute of limitation. Therefore, GEICO argued, the Jenkinses' "claims against GEICO are barred because they will never be able to get a judgment against [Keown] first, as they are required by law to do."[6] GEICO attached affidavits from Keown, his mother, and his girlfriend averring that he did not reside at the 1508 Village Way address when he purportedly was served with the original action via his mother on June 29, 2016. They averred instead that he was a resident of Statesboro, Georgia, at that time. On September 27, 2017, Keown was personally served at a Statesboro address.

         In October 2017, the Jenkinses responded to GEICO's summary judgment motion, generally reciting the summary judgment standard and urging that fact issues remained for determination by a jury. The same month, Keown filed an answer, asserting a statute of limitation defense. The trial court held oral argument on GEICO's summary judgment motion in December 2017, and in May 2018, entered an order granting the motion and dismissing the case on the ground that the Jenkinses did not perfect service against Keown in the original action, so the renewal action was invalid. The Jenkinses now appeal.

         1. The Jenkinses argue that the trial court erred by ruling that Keown had not been properly served in the original action when they left a copy of the complaint and summons with Keown's mother at 1508 Village Way in Jesup, Georgia, in June 2016.

         We begin our analysis with the general rule with respect to renewal actions.

Pursuant to OCGA § 9-2-61 (a), a plaintiff may recommence an action after voluntarily dismissing it by filing a new complaint "within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later." But the privilege of renewal under this statute applies only to actions that are valid prior to dismissal. To constitute a valid action, the complaint must be served personally on the defendant. The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [If a defendant] . . . was not personally served in the [prior] action[, then] . . . the action was void and not subject to renewal [after the statute of limitation has run].[7]

         Here, the trial court ruled that the Jenkinses did not perfect service upon Keown in the prior action, and the statute of limitation had run, so the Jenkinses could not renew the suit in the present action. Although the trial court granted summary judgment to GEICO, the trial court acts as the factfinder on the issue of sufficiency of service, and we will not disturb the trial court's findings on appeal if there is any evidence to support them.[8] The Jenkinses point to evidence that, during the period from December 2002 to 2016, Keown had registered to vote using the address at which they had attempted to serve him in the original action. They also point to a statement in Keown's present answer (filed in October 2017) that he admitted in paragraph one of the renewal complaint, i.e., that he "is subject to the jurisdiction of the Court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.