Ragan v. Mallow
319 Ga. App. 443
| Ga. Ct. App. | 2012Background
- Ragan sues Mallow for injuries from a June 24, 2008 car wreck; service was not personal, but by publication was sought after failed attempts.
- Defendant answered June 28, 2010 raising insufficient service, lack of personal jurisdiction, and statute of limitations defenses.
- Plaintiff obtained a new address via private investigator; service on the second address failed; defendant moved to dismiss for lack of personal jurisdiction.
- Plaintiff sought service by publication; hearing in April 2011; defendant contends no concealment, plaintiff emphasizes notice and waiver of defenses.
- Trial court granted service by publication in Aug. 2011 but later dismissed the case for lack of personal jurisdiction without addressing concealment, diligence, or alternative service methods.
- Appellate court vacates the dismissal, overrules prior cases limiting publication-based jurisdiction, and remands for determination of concealment, diligence, and proper publication under OCGA 9-11-4(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant waived defenses | Ragan argues waiver occurred via medical-narrative notice | Mallow contends defenses were not waived | No waiver by filing the notice; defenses preserved by answer |
| Can service by publication confer personal jurisdiction when defendant conceals himself | Concealment and actual notice justify publication service | Publication alone not sufficient | Publication can confer jurisdiction if concealment shown and publication proper |
| Did the trial court properly decide bad-faith evasion and diligence | Court should determine bad faith and diligent attempts | Not necessary if publication used | Remand to determine bad faith, diligence, and validity of service by publication |
| Was publication service properly conducted under OCGA 9-11-4(f) | Affidavits show attempts to locate and concealment | Service must meet statutory criteria and not rely on publication alone | Remand to ensure compliance with statutes and publishment requirements |
Key Cases Cited
- Moreno v. Naylor, 305 Ga. App. 504 (Ga. App. 2010) (holding service by publication alone may be insufficient; overruled in part)
- Melton v. Johnson, 242 Ga. 400 (Ga. 1978) (wilful concealment can permit publication service and confer jurisdiction)
- Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123 (Ga. App. 2012) (evading service can support publication if proper publication follows)
- Green v. Cimafranca, 288 Ga. App. 16 (Ga. App. 2007) (no abuse where plaintiff failed to prove wilful concealment to frustrate service)
- Baxley v. Baldwin, 279 Ga. App. 480 (Ga. App. 2006) (facts did not show wilful concealment; publication insufficient for jurisdiction)
- Southeastern Security Ins. Co. v. Lowe, 242 Ga. App. 535 (Ga. App. 2000) (service by publication insufficient absent willful evasion)