Chandler Humphries v. Sean P. Weekly
A21A0098
| Ga. Ct. App. | Jun 30, 2021Background:
- Aug 2017: Humphries was rear-ended by Weekly and suffered serious injuries.
- Feb 1, 2019: Humphries sued Weekly; initial sheriff attempts to serve in March 2019 failed.
- Humphries obtained a court-appointed process server, employed a private investigator (skip trace), and served Weekly’s UM carrier; multiple in-state service attempts failed.
- Evidence showed Weekly was out of state and apparently evading service (parents, defense counsel, direct contact, PI, insurance claims manager all indicated Weekly could not be located or was working out of state).
- Trial court denied Humphries’s motion for service by publication, then dismissed the action with prejudice for failure to perfect service; Humphries appealed.
- Court of Appeals vacated and remanded, directing the trial court to apply the correct standard, make factual findings and legal conclusions on service by publication, and then reconsider dismissal/tolling issues.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court applied correct due-diligence standard for service by publication under OCGA §33-7-11(e) | Humphries: due diligence requires showing defendant is out of state or avoiding service, not merely repeated service attempts | Weekly: Humphries failed to perfect service and did not show adequate diligence | Vacated and remanded: trial court must apply the correct standard (diligence in determining out-of-state status or evasion) and make findings of fact and conclusions of law |
| Whether dismissal with prejudice was proper given tolling under OCGA §9-3-94 for defendant’s absence/evading service | Humphries: statute of limitations tolled while Weekly was absent/evading service, so dismissal was premature | Weekly: statute had run (cites resolution of traffic citation/bond forfeiture) and tolling does not apply | Vacated and remanded: appellate court could not determine basis for dismissal; trial court must reassess tolling after resolving service issue |
| Trial court’s post-appeal reconsideration order | Humphries: trial court lacked jurisdiction to rule after notice of appeal | Weekly: (implicit) court may rule on reconsideration | Appellate court vacated the reconsideration order for lack of jurisdiction |
Key Cases Cited
- Smith v. Brooks, 354 Ga. App. 78 (Ga. Ct. App. 2020) (establishes that due diligence for service by publication requires diligence in determining the uninsured motorist is out of state or avoiding service)
- Cascade Parc Property Owners Assn. v. Clark, 336 Ga. App. 94 (Ga. Ct. App. 2016) (discusses review standard for service-related rulings)
- Luca v. State Farm Mut. Automobile Ins. Co., 281 Ga. App. 658 (Ga. Ct. App. 2006) (aligns with the requirement that diligence means demonstrating out-of-state status or evasion, not merely attempted service)
- Mughni v. Beyond Mgmt. Group, Inc., 349 Ga. App. 398 (Ga. Ct. App. 2019) (trial court lacks jurisdiction to rule on motions filed after a notice of appeal)