Aftеr dismissing her first lawsuit, Karen M. Bellamy filed this renewal suit seeking compensation for personal injuries, but she did not secure service on the defendant, Kimberly F. Long, until over a year later, after expiration of the statute of limitation. The trial court denied Long’s motion to dismiss, or in the alternative, for summary judgment in which Long argued that the limitation period had expired and Bellamy had not exercised due diligence in perfecting service. The case was tried before a jury, which returned a verdict in *264 favor of Bellamy. We conclude that as a matter of law Bellamy failed to diligently serve Long and, therefore, reverse.
This case arises out of an automobile collision that occurred on November 20, 2002. Because the statute of limitation for personal injury actions is two years, OCGA § 9-3-33, the limitation period for a negligence suit arising out of the collision was set to expire on November 20, 2004, unless otherwise tolled.
Bellamy filed her negligence suit against Long in January 2004 and perfected service upon Long the following month. On June 23, 2005, Bellamy voluntarily dismissed her first lawsuit without prejudice, and shortly thereafter, on June 30, 2005, she filed the instant renewal action, but failed to serve Long with the summons and renewed complaint. Long answered and raised the defenses of, among other things, insufficient service of process and expiration of the statute of limitation.
Two months later, Long filed a motion to dismiss, or in the alternative, for summary judgment on the same grounds. According to Long, the renewal action had to be dismissed because the limitation period had expired and service still had not been perfected. 1 In response, Bellamy filed a motion for service by publication, asserting in an accompanying affidavit from her attorney that numerous attempts had been made to locate Long but that she was evading service. On January 3, 2006, thе trial court granted Bellamy’s motion for service by publication. The trial court also denied Long’s motion for summary judgment, ruling that “valid personal service may yet be made which would relate back so as to toll the statute of limitation if proper diligence is shown.”
On July 28, 2006, Long was personally served with the summons аnd renewed complaint, after which Long filed a renewed motion to dismiss, or in the alternative, for summary judgment. Long asserted that the renewal action had to be dismissed because Bellamy had failed to exercise due diligence in perfecting service and that, as a result, the limitation period hаd not been tolled. Bellamy initially did not file a response brief, but later submitted the affidavits of her attorney and a private investigator to support her claim of due *265 diligence. Following oral argument of the parties at a pretrial hearing, the trial court denied the renewed motion. The case proceeded to trial, the jury returned a verdict in favor of Bellamy, and judgment was entered accordingly. This appeal followed.
1. In her first enumeration of error, Long maintains that, as a matter of law, Bellamy failed to come forward with sufficient evidence to prove due diligence in pеrfecting service of the summons and renewed complaint after expiration of the statute of limitation. Consequently, Long argues that the trial court should have granted her renewed motion to dismiss, or in the alternative, for summary judgment on the grounds of insufficient service of process and expiration of the statute of limitation.
(a) As a threshold matter, we must consider whether, as Bellamy contends, Long waived her insufficient service of process and statute of limitation defenses because the defenses were not listed in the pretrial order.
2
A pretrial order “limits the issues for trial to those not disposеd of by admissions or agreements of counsel.” OCGA § 9-11-16 (b). The general rule is that any issue omitted from the pretrial order is waived. See
Long v. Marion,
Here, the trial court entertained and ruled upon the merits of Long’s renewed motion raising the insufficient service of process and statute of limitation defenses
after
the trial court had entеred the pretrial order that failed to list those defenses. And, at the pretrial hearing on the renewed motion, Bellamy did not express any surprise or object to the raising of the defenses. Instead, Bellamy argued against the grant of the renewed motion based solely on the merits and submitted affidavits in support of her position. In truth, the issue of waiver was not raised at all until the appeal of this case.
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Under these circumstances, the pretrial order was impliedly amended to include the defenses in question. See OCGA § 9-11-15 (b);
Bowers,
(b) We likewise disagree with Bellamy’s contention that Long waived any defense predicated on the delay in service of process by appearing and participating in the trial on the merits. It is true that a defendant waives an otherwise valid objection to service of process if he or she “substantially participated in litigation on the merits
before
raising the objection for decision by the court.” (Emphasis supplied.)
Exum v. Melton,
(c) We now turn to the substance of Long’s defenses of insufficient service of process and expiration of the statute of limitation.
OCGA § 9-2-61 (a) provides that a plaintiff may refile an action she previously dismissed within the original applicable statute of limitation or within six months after the dismissal, whichever is later. A renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Diligence in perfecting service in a renewal action must be measured from the time of filing the renewed suit. Because service of the renewal action in this case was not perfected within the six-month renewal period, [Bellamy] [had] the burden of showing that she acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.
(Punctuation and footnote omitted.)
Magsalin v. Chace,
In arguing that the trial court acted within its discretion in finding that she exercised due diligence in perfecting service, Bellamy points out that during the course of the proceedings, the trial court entered an order granting her motion to servе Long by publication.
Even though service by publication is insufficient to confer in personam jurisdiction over [a] defendant, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. Thus, as of the date of the order granting the request for service by publicatiоn, the trial court found [that Bellamy] had been diligent in the attempt to locate [Long],
(Citations and punctuation omitted.)
Smith v. Johnson,
Having reviewed the record in this casе, we conclude that Bellamy failed to demonstrate that she acted with the greatest possible diligence in perfecting service upon Long after entry of the order for service by publication. In an effort to prove such diligence, Bellamy relied upon the affidavits of her attorney and a private investigator who was hired to locate Long. As a matter of law, however, neither affidavit was sufficient to prove the required level of diligence.
In his affidavit, Bellamy’s attorney averred that following entry of the order for service by publication, he retained the services of a
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рrivate investigator, who “undertook an exhaustive search” for Long, resulting in Long being located and served. Other than these summary statements, the affidavit provided no additional details concerning what specific efforts were made by the investigator as part of the search to locate Lоng. But “[a] plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.” (Citation and punctuation omitted.)
McGhee v. Jones,
Likewise, in his affidavit, the private investigator averred that he was hired by Bellamy to locate Long, and that
[t]he investigation conducted by [his] office involved numerous hours and included checking [Longj’s previous residence, as well as contacting various administrative and law enforcement agencies, housing authorities, homeless shelters and social services, Department of Corrections, the Parolе Board and various probation offices.
The investigator’s affidavit did not provide any additional information concerning the specifics of the investigation conducted beyond this general statement. Nor did it contain any dates or a chronology to show that the investigator’s efforts to locаte Long were persistent over the seven-month period following entry of the order for service by publication.
An affidavit submitted in an effort to show diligence must provide specific dates and details, not simply generalized, summary statements. If the affidavit fails to provide specific dates ,or a chronology of the plaintiffs efforts to effect service, the trial court is placed in the position of being unable to determine whether the plaintiff acted diligently or instead delayed or abandoned his efforts at some point in the litigation.
(Citations omitted.)
Montague v. Godfrey,
“[T]his Court is required to strictly apply the service requirements because notice is the very bedrock of due process.” (Citations and punctuation omitted.)
Duffy v. Lyles,
2. Based on our conclusion in Division 1, we need not address Long’s remaining enumerations of error.
Judgment reversed and case remanded with instruction.
Notes
Although Long styled her motion simply as a motion for summary judgment, her motion was in fact a motion to dismiss, or in the alternative, for summary judgment. See
Roberts v. Bienert,
After the pretrial order entered in the case was misplaced by the clerk of court, the parties hotly disputed which pretrial order had bеen entered and whether the order that was finally entered had listed the insufficient service of process and statute of limitation defenses. As a result, this appeal initially was remanded for a hearing pursuant to OCGA § 5-6-41 (f) to resolve the differences between the parties and make the record conform to the truth. The trial court thereafter conducted an evidentiary hearing and entered an order resolving which pretrial order had been entered in the case, namely, the one that did not list the defenses.
Our case law appears to conflict over whether the plaintiff must exercise the greatest possible diligence from the point at which the defendant raises a service defense, or only from the point that she first has notice of a problem with service. See
Duffy v. Lyles,