Tara R. Kelley sued Garrett Lymon, Jr., for personal injuries sustained in a June 2001 automobile accident. The suit was filed one month before the two-year statute of limitation expired. See OCGA § 9-3-33. Lymon raised the defense of insufficient service of process in his answer. Fifteen months after the statute of limitation expired, Lymon still had not been served, and the trial court dismissed Kelley’s complaint. Kelley appeals, arguing that the trial court should not have dismissed her complaint and should have granted her motion to compel Lymon’s deposition. We discern no error and affirm.
Kelley filed a complaint against Lymon in May 2003 and attempted to serve him at an Atlanta address on June 5, 2003. The sheriff was unable to serve Lymon, who had moved without leaving forwarding information. Lymon answered that Kelley’s complaint should be dismissed due to insufficient service of process. Lymon served interrogatories and a request for production of documents on *850 Kelley, but he consistently stood by his defense of insufficient service. Kelley hired a private investigator/skip tracer to locate Lymon, but he did not find him.
In July 2003, after the statute of limitation had expired, Kelley noticed Lymon’s deposition. Lymon filed a motion for a protective order, arguing that he could not be made to sit for a deposition when he had not been served with the lawsuit against him. In August 2003, the trial court granted Lymon’s motion for a protective order. Thereafter, Kelley served additional discovery on Lymon’s counsel, to which Lymon did not respond. In October 2003, Kelley filed a “Motion for Order to Take Defendant’s Deposition,” arguing that the deposition was necessary as a means of locating Lymon. Lymon opposed the motion, arguing once again that he had not been served with the complaint.
Almost two weeks later, Kelley filed a motion to compel responses to her discovery. Lymon responded that he still had not been served. Kelley then filed a clarification to her motion to compel, arguing that the trial court should compel Lymon’s deposition so that she could learn his whereabouts and effect service on him.
In September 2004, following a hearing on Kelley’s motions two weeks earlier, the trial court denied Kelley’s motions and dismissed her complaint for insufficient service. Kelley appeals.
1. Kelley contends that the trial court erred in dismissing her complaint due to insufficient service. We disagree.
A trial court’s finding of insufficient service of process must be upheld on appeal absent a showing of an abuse of discretion.
Franchell v. Clark,
The record reveals that Kelley did little to attempt to serve Lymon after her initial efforts to find him through a private investigator failed. Indeed, instead of diligently pursuing service herself, Kelley sought to have the trial court compel Lymon’s deposition,
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thereby forcing Lymon to come to her, which would allow her to effect proper service upon him. Kelley’s attempt to shift the burden of her search onto the trial court was inappropriate, and in no way would constitute reasonable diligence, let alone the “greatest possible diligence” on her part, to serve Lymon. See
Wilson v. Ortiz,
2. In light of our holding in Division 1 that the trial court properly dismissed Kelley’s complaint, her remaining enumeration is moot.
Judgment affirmed.
Notes
Contrary to Kelley’s argument, the fact that Lymon served interrogatories and a request for production of documents on her did not constitute waiver of Lymon’s defense of insufficient service. “[P]articipation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service.” (Citation and punctuation omitted.)
Hardy v. Lucio,