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McNeil v. McCollum11/14/2005
orney or had any contact with the attorney prior to the expiration of the statute of limitation. In fact, one of the owners of Casual Carrier testified by deposition that Casual Carrier's first contact with the attorney occurred on November 25, 2003, two days before the statute of limitation expired. There is no evidence that, prior to the expiration of the statute of limitation, McNeil received notice of the institution of the suit by being served with the complaint, or by otherwise learning from the other parties or their common attorney that the suit had been filed. Because McCollum had the burden to show compliance with the notice requirements of OCGA § 9-11-15 (c), and he failed to produce evidence that McNeil had the required notice, McNeil was entitled to point to the absence of evidence of the required notice to support his motion seeking dismissal of the suit based on the expiration of the statute of limitation.
3. Appellants contend that the trial court should have dismissed Casual Carrier because McCollum failed to exercise due diligence in serving Casual Carrier after the statute expired. Pursuant to OCGA § 9- 11-12 (h) (1) (B), " defense of . . . insufficiency of process or insufficiency of service of process is waived . . . f it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed." Casual Carrier did not raise this affirmative defense in its answer. In a footnote in their answer, appellants state: " lthough McNeil, Casual Carrier and Empire have not been properly served or are not otherwise properly before the Court, they will collectively be referred to herein as `these defendants.' By making such reference, `these defendants' do not submit to the jurisdiction and venue of this Court." This footnote is not sufficient to affirmatively assert the service defenses as they must be expressly raised. Because Casual Carrier did not properly raise these defenses, they are waived and cannot be considered on appeal. The fact that appellants raised the defenses in an amended pleading does not warrant a different result because they "may not be pleaded by amendment to an original pleading." Accordingly, this error fails.
Judgment affirmed in part and reversed in part. Phipps, J., concurs. Andrews, P. J., concurring specially.
Andrews, Presiding Judge, concurring specially.
I concur in the judgment and in divisions 1 and 2 of the majority opinion, but not in division 3. This appeal was taken from the trial court's denial of the Appellants' motion seeking dismissal on the basis that the statute of limitation barred McCollum from amending the complaint to substitute them for the John Doe defendants because McCollum could not show compliance with the provisions of OCGA § 9-11-15 (c). It is not necessary to separately address whether the Appellants properly raised the defense of lack of diligence in perfecting service of process after the statute of limitation expired. The controlling issue is not whether McCollum acted diligently in perfecting service after the expiration of the limitation period, but whether, prior to the expiration of the statute of limitation, the Appellants "received such notice of the institution of the action that [they] will not be prejudiced in maintaining [their] defense on the merits," as provided by OCGA § 9-11-15 (c). Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (380 SE2d 78) (1989).
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