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Keywords

lawsuitplaintiffstatuteappealtrial
plaintiffstatutetrialmotion

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White v. Jones, 244 Ga.App. 485, 536 S.E.2d 167, 00 FCDR 2813

Facts

On April 11, 1997, a collision occurred between a vehicle operated by Crystal White and a vehicle operated by Gwendolyn Ruth Jones. The Whites filed a lawsuit against Jones on April 9, 1999, but Jones was not served until after the trial court dismissed the complaint due to the Whites' failure to serve her in a timely manner. Jones asserted several defenses, including insufficiency of service of process, and the trial court found the Whites guilty of laches for not exercising due diligence in serving Jones.

On April 11, 1997, a collision occurred between a vehicle operated by Crystal White and a vehicle operated by Gwendolyn Ruth Jones. On April 9, 1999, Crystal White, Malcolm White, and Marcus White brought this action against Jones.

Issue

Did the trial court err in dismissing the complaint for insufficiency of service of process?

Did the trial court err in dismissing the complaint for insufficiency of service of process?

Rule

The burden on a plaintiff who has failed to serve a complaint within the statute of limitation is well established: When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised.

The burden on a plaintiff who has failed to serve a complaint within the statute of limitation is well established: When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised.

Analysis

The court found that the Whites did not demonstrate due diligence as a matter of law. They failed to take immediate action to locate Jones after being put on notice of a problem with service. The court noted that the Whites waited too long to attempt to serve Jones, even after being informed of the inadequate service, and thus concluded that the trial court did not abuse its discretion in dismissing the complaint.

Under the facts of this case, the Whites have not demonstrated that they exercised due diligence as a matter of law. Their obligation to ascertain Jones's correct address did not arise only upon expiration of the statute of limitation.

Conclusion

The Court of Appeals affirmed the trial court's decision to dismiss the complaint, concluding that the Whites did not exercise due diligence in serving Jones.

Because we find that the trial court did not abuse its discretion in dismissing the complaint, we affirm.

Who won?

Gwendolyn Ruth Jones prevailed in the case because the court found that the plaintiffs failed to exercise due diligence in serving her.

The trial court granted Jones's motion and dismissed the complaint, concluding that the Whites were guilty of laches in failing to serve Jones in a timely fashion or to exercise due diligence in attempting to serve her.

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