Rosser v. Lynn et al. (9/7/22)
by Diana Moore
Holding: The Court of Appeals vacated the trial court’s judgment and remanded the case with direction after the trial court failed to make an initial determination on the record as to whether the Plaintiff exercised due diligence in serving the Defendant by publication.
- “Although a plaintiff must file his complaint within the applicable period of limitation, the law allows the same to be served beyond that applicable period. If the timely filing of the pleading is followed by timely service perfected as authorized by law, the subsequent service will relate back to the initial filing even though the statute of limitation has run in the interim. In other words, if the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.”
- “When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised. Once the plaintiff becomes aware of a problem with service, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service. In determining whether a plaintiff exercised the greatest possible diligence, we focus on the plaintiff’s actions, not the defendants. The fact that a defendant may be hard to find does not justify a lack of effort on the part of the plaintiff.”
- “Georgia permits service by publication under certain circumstances found in O.C.G.A. § 9-11-4(f)(1)(A). It is the duty of the court to determine whether the movant has exercised due diligence in pursuing every reasonable available channel of information. Though the trial court makes this determination initially, this Court must independently review whether the search for the absentee part[ies] was legally adequate.”
Fed. Express Crop v. Denny (10/6/22)
by Chelsea Cooke
Holding: Court of Appeals reversed an order that set aside default judgment based on insufficient service as to one out of three defendants while the remaining two defendants default judgments were granted. The court held that the invisible judgment rule applied, and that the default should have been set aside for all three defendants instead of just one.
- “In Georgia, a judgment rendered against two or more joint tortfeasors is single and indivisible, at least to the extent that the damages awarded therein are a joint liability of the defendants and are not apportioned among them. When a court sets aside such a judgment as to some, but not all, of the defendants, the indivisible nature of the judgment sometimes requires that it also be set aside as to the other defendants.”
- “One circumstance in which a judgment must be set aside as to all of the defendants, we have explained before, is when fewer than all of the defendants are released from an indivisible judgment for reasons other than on the merits, as shown by the evidence in the case, such as lack of venue or lack of service.”
- “The indivisible judgment rule is applicable where some of the defendants, against whom a judgment has been rendered, are released therefrom for reasons other than on the merits, such as lack of service.”
- “The single judgment rendered against all three defendants here was joint and indivisible, with no apportionment of damages among them.”
Heritage Roof Truss, Inc. v. Leeper (10/31/22)
by Kayla Rocker
Holding: Court of Appeals reversed a trial court’s denial of defendant’s motion to dismiss an amended complaint for failure to name a correct party, holding that plaintiffs did not show that defendant “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it.]” OCGA § 9-1115(c). Where a plaintiff knew of a defendant’s involvement in a transaction prior to the expiration of a limitation period, but either “failed to timely appreciate” a defendant’s potential liability or “deliberately delayed” adding him as a defendant, the provision of OCGA § 9-11-15 (c) (2) was not satisfied.
- OCGA § 9-11-15 (c) provides: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”
- “An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
- “There are thus “three criteria” to be met in order for an amended complaint to relate back: when (1) the claim “arises out of the same facts and circumstances”; (2) the proposed party “has received sufficient notice before the running of the applicable statute so as to avoid prejudice” to its defense; and (3) that party “knew or should have known” that but for a mistake, “the action would have been brought against him.””
- “Service of a subpoena to a person who is not a party cannot alone constitute notice that the person is or should have been named as a party for purposes of OCGA § 9-11-15 (c).”