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Service. DeKalb Superior Court. Before Judge Wheeler, Senior Judge.
Kelly Leach sued Cirilo Monroy in DeKalb County Superior Court alleging she was injured in an automobile accident in DeKalb County caused by Monroy. After Leach was unable to locate Monroy for personal service, Leach served Monroy by publication pursuant to a court order, then served the complaint on her uninsured motorist carrier pursuant to OCGA 33-7-11. Leach appeals from the trial court's subsequent order dismissing the action on the basis that Leach failed to act diligently in obtaining personal service on Monroy.
Leach filed the complaint against Monroy on February 12, 1998, seeking damages for personal injuries arising out of the automobile accident which occurred on February 26, 1996. On February 23, 1998, the sheriff filed a return of service showing that Monroy could not be found within the jurisdiction of the court. On February 25, 1998, Leach filed a motion seeking service by publication along with an affidavit in support of the motion stating that Monroy could not be found. On February 25, 1998, one day before the expiration of the two-year personal injury statute of limitation (OCGA 9-3-33), the trial court granted the motion, ordered that Monroy be served by publication, and Monroy was subsequently served by publication. On March 12, 1998, the sheriff filed a return of service showing that on February 17, 1998, Leach's uninsured motorist carrier was timely served pursuant to OCGA 33-7-11 (d). On April 21, 1998, Monroy filed an answer through his attorney raising the defenses of lack of personal jurisdiction, insufficient service of process, laches, and expiration of the statute of limitation.
Although service by publication was not sufficient to confer in personam jurisdiction over Monroy, the order granting service by publication was, in effect, an ex parte finding that Leach had exercised due diligence in attempting to locate and personally serve Monroy. Douglas v. Woon, 205 Ga. App. 355, 356 (422 SE2d 61) (1992). It thus served as an ex parte finding that Leach had carried her burden of proving she had exercised diligence sufficient to justify service by publication under OCGA 33-7-11 (e) as a basis for a nominal judgment against Monroy and recovery from the uninsured motorist carrier. Id.; Bailey v. Lawrence, 235 Ga. App. 73, 76 (508 SE2d 450) (1998); Wentworth v. Fireman's Fund &c. Ins. Cos., 147 Ga. App. 854, 855 (250 SE2d 543) (1978); Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990).
Monroy's motion contested the trial court's prior ex parte finding of diligence. In granting the motion and dismissing the case on the basis that Leach failed to exercise diligence in locating and serving Monroy, the trial court, in effect, voided its prior order allowing service by publication, and concluded that the record failed to show Leach had carried the burden of establishing diligence. Norman v. Daniels, 142 Ga. App. 456, 460 (236 SE2d 121) (1977). Due diligence "is a question of fact which addresses itself in the first instance to the discretion of the trial court." Id. at 460. We find no abuse of discretion in the trial court's conclusions. Based on the trial court's finding, there was no basis for service by publication pursuant to OCGA 33-7-11 (e), and no basis for personal service on Monroy after the statute of limitation had expired. Accordingly, the trial court did not err in dismissing the entire action.
MCMURRAY, Presiding Judge, concurring specially.
I am authorized to state that Judge Ruffin joins in this opinion.
Shur, McDuffie, Brockman & Leveille, Michael L. Morgan, Chambers, Mabry, McClelland & Brooks, James S. Anderson, for appellee.
Scott Walters, Jr., for appellant.
Thursday May 21 02:45 EDT

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