JENKINS et al.
KEOWN et al.
P. J., COOMER and MARKLE, JJ.
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
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."
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. 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.
Jenkinses filed the renewal action (the instant case) on
March 9, 2017. 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
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."
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." 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.
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.
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
begin our analysis with the general rule with respect to
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].
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. 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 ...