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Carter v. McKnight3/7/2003
On October 30, 2000, Joe Manuel, Jr., and James Carter sued Janet McKnight for damages allegedly arising out of a March 5, 1997 collision between Manuel's truck and McKnight's automobile. Manuel asserted a property damage claim, and Carter, who was a passenger in Manuel's truck, sought recovery for personal injuries. Over one year later, on January 3, 2002, McKnight filed a "Special Appearance Answer and Defenses" and a summary judgment motion, asserting that she had never been served with process and that all claims were barred by the applicable statutes of limitation. The trial court granted McKnight's motion, and finding no error, we affirm.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." The record reveals that the plaintiffs originally raised their claims against McKnight in a suit that was dismissed on May 1, 2000. Although we do not know the date of that original suit, it apparently was filed inside the four year limitation period for property damage claims and the two year period for personal injury claims. This case is a renewal of that original action, timely filed within six months of the May 1, 2000 dismissal.
On November 1, 2000, a sheriff's deputy attempted to serve the renewal complaint on McKnight at a Glynn County address provided by the plaintiffs. The deputy was unable to locate or serve McKnight, and he indicated on the Entry of Service form that McKnight had "relocated to the Atlanta area." The record contains no evidence of proper service.
In response to McKnight's summary judgment motion, the plaintiffs' counsel filed an affidavit regarding his efforts to serve the complaint. According to counsel, he tried unsuccessfully to locate McKnight in Glynn County on several occasions and discovered that she remained a registered voter there. After learning that she might be in Atlanta, he made "arrangements . . . immediately . . . to have the Sheriff of the County serve [McKnight] and the fee for service was sent to the Sheriff, along with process." The affidavit does not reference a particular county or address in Atlanta, and it does not state that McKnight was ever actually served. Nevertheless, counsel asserted that " iligen efforts were made in having [McKnight] served with process."
The trial court disagreed, finding that the plaintiffs failed to exercise diligence in serving McKnight and were guilty of latches. It thus concluded that the applicable statutes of limitation, which expired after the complaint was filed, barred their claims. "`The determination of whether the plaintiff [were] guilty of laches in failing to exercise due diligence in perfecting service . . . is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse.'"
1. Initially, the plaintiffs argue that McKnight is not entitled to summary judgment because she did not file an affidavit or other admissible evidence to support her assertion that she was never served with process. But McKnight was not required to produce evidence or disprove the plaintiffs' claims. On the contrary, "a defendant meets summary judgment burden by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the [plaintiffs'] case." McKnight satisfied this burden by raising the lack of service and pointing to evidence that the Glynn County Sheriff's Office was unable to serve her.
2. A renewal suit filed pursuant to OCGA ยง 9
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