350 Ga. App. 361
Ga. Ct. App.2019Background
- In June 2015 a motor-vehicle collision in Ware County, GA involved defendant Robert Lee Henderson and plaintiff Marion Jerome James; James sued Henderson in October 2016 for negligence, alleging Henderson resided at 2847 South Lakeview Drive.
- The sheriff attempted personal service at the Lakeview address but returned service non est, noting the house was vacant and Henderson could not be found in the county.
- James sought and obtained court authorization to serve Henderson by publication, supported by a single-paragraph affidavit asserting Henderson had departed the county/state and that James had made a diligent search (contacting friends/relatives) without success.
- James also provided a courtesy copy of pleadings to Henderson’s insurer, GEICO, which (though not a party) filed an answer asserting lack of personal jurisdiction and insufficient service; GEICO later moved to dismiss on Henderson’s behalf after the statute of limitations expired.
- Additional location efforts (internet/Facebook searches, calls to addresses found in other records, certified mail to the Lakeview address) failed to establish Henderson’s whereabouts or actual notice of the suit.
- The trial court denied GEICO’s motion, finding James had exercised due diligence and that Henderson willfully secreted himself to avoid service; the Court of Appeals granted discretionary review and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication conferred in personam jurisdiction over Henderson in a tort action | James argued he made due diligence efforts and the court’s authorization and publication were sufficient to obtain jurisdiction | GEICO/Henderson argued publication alone was constitutionally inadequate to provide fair notice and thus did not support personal jurisdiction | Reversed: publication insufficient; no in personam jurisdiction because Henderson was alleged to have departed the state and there is no evidence he had actual knowledge of the suit |
Key Cases Cited
- Reynolds v. Reynolds, 296 Ga. 461 (2015) (due process requires service reasonably certain to give actual notice)
- Melton v. Johnson, 242 Ga. 400 (1978) (narrow exception: resident present in forum who willfully hides may be bound by publication)
- Southeastern Sec. Ins. Co. v. Lowe, 242 Ga. App. 535 (2000) (general rule: publication does not confer personal jurisdiction in tort actions)
- Barnes v. Continental Ins. Co., 231 Ga. 246 (1973) (without personal service, in personam jurisdiction generally does not attach)
- Baxley v. Baldwin, 279 Ga. App. 480 (2006) (publication generally insufficient to support money judgment against tortfeasor)
- Ragan v. Mallow, 319 Ga. App. 443 (2012) (application of Melton exception requires case-by-case, fact-intensive showing)
- Wyatt v. House, 287 Ga. App. 739 (2007) (cited in context of jurisdictional sufficiency challenges)