BRASILE v. Beck
312 Ga. App. 77
Ga. Ct. App.2011Background
- Brasile injured in auto accident on October 22, 2006.
- Brasile filed a complaint against Beck and Fox in Peach County on September 28, 2008.
- Service attempts failed; order for service by publication issued October 29, 2008.
- Brasile dismissed the Peach County action in May 2009 after expiration of the statute of limitations when service by publication was known to be ineffective for establishing personal service.
- Brasile filed a renewal action on August 5, 2009 in Chatham County State Court and personally served Beck and Fox.
- The case was transferred to Crawford County Superior Court; Beck and Fox moved to dismiss for failure to personally serve the original action; summary judgment followed after a late conversion of the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in converting the motion to dismiss into summary judgment | Brasile contends conversion caused prejudice. | Beck and Fox argue proper procedure permits conversion. | No reversible error; no prejudice shown. |
| Whether failure to personally serve in the original action voids the renewal action | Brasile asserts renewal allowed despite lack of service in original action. | Beck and Fox maintain original action void due to insufficient service, nullifying renewal. | Renewal action void; service by publication does not suffice for personal judgment. |
Key Cases Cited
- Hudson v. Mehaffey, 239 Ga.App. 705, 706, 521 S.E.2d 838 (1999) (valid renewal requires a valid prior action with personal service)
- Williams v. Hunter, 291 Ga.App. 731, 732, 662 S.E.2d 810 (2008) (service by publication not sufficient for judgment)
- Costello v. Bothers, 278 Ga.App. 750, 752(2), 629 S.E.2d 599 (2006) (service by publication cannot substitute for personal service)
- Hawkins v. Wilbanks, 248 Ga.App. 264, 265, 546 S.E.2d 33 (2001) (similar principle on void original actions when service incomplete)
- Hobbs v. Arthur, 264 Ga. 359, 444 S.E.2d 322 (1994) (distinguishes cases where personal service occurred)
- Poteate v. Rally Mfg., 260 Ga.App. 34, 35(1), 579 S.E.2d 44 (2003) (conversion of motion to dismiss to summary judgment addressed)
- Jones v. Ward, 201 Ga.App. 757, 758-759(1), 412 S.E.2d 576 (1991) (adequate notice and opportunity to respond to motion)