Facts
On September 8, 2020, Ansley Clanton and Willie Taylor were involved in a motor vehicle accident. On July 26, 2021, Clanton filed suit against Taylor and began her effort to serve Taylor. In addition to serving Taylor, Clanton also served the suit on her uninsured motorist carrier. On October 19, 2021, Taylor filed a special appearance and alleged several defenses including that service was insufficient.
Following Taylor’s special appearance, on November 3, 2021, Clanton filed a motion for the appointment of a special process server, which was granted. Clanton’s process server contacted Taylor in December of 2021 about service. Taylor advised the process server that he lived in Indiana and provided the process server with his Indiana address. Despite this information, Clanton’s process server attempted to serve Taylor at an apartment in Thomaston, Georgia. After several unsuccessful attempts, in December of 2022, the apartment complex informed the process server that Taylor had moved to Indiana in 2020 and gave the process server Taylor’s Indiana address. The process server also contacted Taylor’s daughter, who confirmed Taylor’s move to Indiana.
Clanton then moved to appoint an Indiana-based process server, which the court granted. Clanton made one unsuccessful attempt to serve Taylor at his Indiana address.
One year later, on January 23, 2023, Clanton filed a motion for service by publication. Her uninsured motorist carrier opposed the motion and moved for the case to be dismissed because of Clanton’s lack of diligent service and the expiration of the statute of limitations. The trial court held a hearing on the motion. The trial court denied Clanton’s motion for service by publication and granted the uninsured motorist carrier’s motion to dismiss. Clanton appealed.
Issues & Holding
The issue in this case was whether it was proper to deny Clanton’s motion for service by publication under the theory of latches. The court held that, yes, the trial court did properly deny the motion.
Reasoning
The Georgia Court of Appeals agreed that the dismissal of Clanton’s claim was proper. Relying on Rodriguez v. State Farm, the Court noted that when a defendant has raised a service defense and the statute of limitation has expired, a plaintiff has a higher duty to show that the “greatest possible diligence” was followed for proper and timely service. 366 Ga. App. 65, 67 (2022). The Court had serious concerns that, despite having information that Taylor lived in Indiana, Clanton waited a year before trying to serve him there. Further, the Court pointed out that Clanton attempted to serve Taylor three times in Georgia when she knew Taylor resided in Indiana, but only attempted service in Indiana once.
The Court of Appeals noted that the determination of whether a plaintiff is guilty of latches in failing to exercise the appropriate level of diligence in obtaining service after the statute of limitations has expired is within the trial court’s discretion. Based on the facts before it, the Court reasoned that the trial court did not abuse its discretion in finding that Clanton did not show the greatest possible diligence in her service attempts of Taylor. As a result, the Court of Appeals affirmed the trial court’s denial of the motion for service by publication and granted the uninsured motorist carrier’s motion to dismiss.
Conclusion
Clanton embodies the adage: work smart, not hard. Be smart about service. Who you select as a process server matters – make sure to do your research and vet your process server. You need to be able to communicate with your process server and your process server needs to be relaying information to you so that both you and the process server can collaborate to make effective choices when it comes to serving the Defendant.
The fatal flaw for Clanton was either that her process server was not listening to the information the Defendant was telling them, or the attorney was not checking in or not giving direction to the process server, which led to wasted time and effort serving the wrong address.
Further, if you are nearing the statute of limitation, be mindful of the higher standard of “greatest possible diligence” once the statute runs. Prepare to show the court how your service efforts meet the higher standard. In meeting the higher standard, Clanton teaches us that a high number of attempts alone does not meet the “greatest possible diligence” standard, but that the quality of your attempts also goes to the showing of diligence.
Citation: Clanton v. Taylor, et. al., No. A23A1244 (Ga. Ct. App. January 23, 2024)
