A Georgia driver appealed the trial court’s order granting the defendant’s “motion to dismiss for failure to perfect service” and dismissing the complaint with prejudice. The question was not whether the defendant received proper notice i.e., was he properly told about the lawsuit, but rather did the plaintiff have to file the affidavit by a certain date.
Background
The parties were involved in a motor vehicle accident on June 28, 2022. About 16 months later, the plaintiff filed suit seeking damages for personal injuries arising out of the accident. On November 16, 2023, the defendant filed a special appearance and answer to the complaint. After the transfer of the case to Carroll County, the plaintiff’s counsel mailed a copy of the summons, complaint, and a sheriff’s entry of service form to the Carroll County Sheriff’s Office. A sheriff’s deputy personally served the defendant with a copy of the complaint and summons. The plaintiff’s counsel received the completed sheriff’s entry of service form that showed that personal service was made on the defendant at his residence on February 15, 2024.
The defendant filed an answer to the plaintiff’s complaint and denied liability. He asserted a number of affirmative defenses, including insufficiency of service of process. Four months later, the defendant filed a motion to dismiss “for failure to perfect service of process,” arguing that because the statute of limitations expired on June 28, 2024, and the plaintiff hadn’t perfected service of process upon the defendant, the complaint should be dismissed with prejudice. The plaintiff filed his opposition and also filed the sheriff’s entry of service showing that the defendant was personally served. The trial court granted the motion and dismissed the defendant’s complaint with prejudice, holding that service can be perfected when a proper service agent delivers the complaint and the summons to the defendant, and service is filed with the clerk. A Sheriff’s Deputy was sent to the defendant’s address and recorded that the defendant was served via personal service. However, these operations weren’t e-filed with the Clerk until well beyond the statute of limitations. The trial court found that the plaintiff didn’t show that in the month in between the motion to dismiss and the filing of proof of service the greatest possible diligence exercised in seeking to perfect service.
Upon the plaintiff’s motion for reconsideration of that order, the trial court held that it’s the filing of the proof of service that initiates an action against a defendant and that without a filed proof of service, there’s no “live action.” As such, the trial court ruled that because service wasn’t made valid until the filing of proof of service on August 16, 2024 — a date after the two-year statute of limitations had run — the plaintiff was required to have exercised the “greatest possible diligence” in filing the proof of service once the defendant filed the motion to dismiss. While acknowledging that the plaintiff had 30 days to respond to the defendant’s motion to dismiss, the court nonetheless determined that he didn’t demonstrate the requisite diligence in filing the proof of service. As a result, service on the defendant wouldn’t relate back to the date of the filing of the complaint and the action was time-barred.
On appeal, the plaintiff argued that the trial court erred in treating the filing of proof of service as an integral element of service itself, concluding that an action against a defendant “does not begin” until the plaintiff files a return of service with the court, and thus holding that the plaintiff’s complaint should be dismissed for insufficiency of process. Notably, the defendant — in his arguments before both the trial court and the Court of Appeals—didn’t contest the sufficiency upon whom service was made, or whether it was proper. In fact, the defendant affirmatively conceded that service in Carroll County was effectuated four months before the statute of limitations ran.
The Trial Court Erred in Treating the Filing of Proof of Service as an Element of Service Itself
Judge J. Wade Padgett wrote in his opinion for the appellate panel that under O.C.G.A. § 9-11-4(e), service of process occurs when a person of the type identified in § 9-11-4(c) personally provides the summons and complaint to the defendant, leaves the summons and complaint at the defendant’s dwelling with a person of suitable age and discretion who also resides at the dwelling, or delivers the summons and complaint to an agent authorized by appointment or by law to receive service of process on behalf of the defendant. There are no other requirements for accomplishing “service of process” on an individual defendant, located in the state, in a negligence action such as this one, other than that which is set forth in § 9-11-4(e)(7).
Separate and apart from accomplishing this formal delivery of the summons and complaint to a defendant, O.C.G.A. § 9-11-4(h) provides:
The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date. If the proof of service is not filed within five business days, the time for the party served to answer the process shall not begin to run until such proof of service is filed. . . . Failure to make proof of service shall not affect the validity of the service.
Judge Padgett found that the trial court conflated service of process under § 9-11-4(e) with the filing of proof of service, and therefore incorrectly expanded the definition of “service of process” or what it means to accomplish service of process, in a way that contravenes the plain language of O.C.G.A. § 9-11-4(h). Georgia case law reinforces the clear instruction of § 9-11-4(h) that proof of service isn’t part of the act of service and shouldn’t affect its validity.
Because the plain language of O.C.G.A. § 9-11-4 makes clear that the filing of proof of service isn’t part of service itself and because the defendant conceded that service was made on him four months before the statute of limitations would have run, which provided the trial court with jurisdiction, the plaintiff’s action was “brought within two years after the right of action accrue[d],” in compliance with O.C.G.A. § 9-3-33. The act of filing proof of service — which explicitly doesn’t affect the validity of service — at a date beyond which the statute of limitations would have run, had suit not been filed and service been made in a timely fashion, didn’t retroactively void service that complied with § 9-11-4 (e)(7) and divest the trial court of authority to hear the case.
The Court of Appeals likewise agreed that the trial court erred in concluding that, where a plaintiff does not file proof of service within five business days of service, the action against the defendant doesn’t begin until the plaintiff files proof of service with the court pursuant to O.C.G.A. § 9-11-4(h).
The Trial Court Erred in Dismissing the Plaintiff’s Complaint for Insufficiency of Service of Process
Where, as in this case, the defendant conceded that valid service was made four months before the statute would have run, that concession eliminated the need for any proof at all that service was sufficient and dismissal not warranted.
Even if the defendant hadn’t conceded valid service within the statute and instead planned to contest compliance with O.C.G.A. § 9-11-4 (e) (7), Judge Padgett said that he bore the burden of showing improper service, and once the return came before the court as evidence, the return was prima facie proof “as to the facts recited therein.” This could only be set aside by clear and convincing evidence that those facts were untrue. So, for the defendant to carry his burden of showing improper service, he was required to present evidence that the summons and complaint weren’t provided to him in the manner prescribed by O.C.G.A. § 9-11-4(e)(7)—not simply to point to the fact that a proof of service hadn’t been filed. Again, a failure to file such proof expressly doesn’t affect the validity of service and, that proof can be supplied or filed before the court enters an order or judgment. Here, the particular date when the plaintiff filed proof of service didn’t change the facts stated on the sheriff’s entry form — namely, that personal service on the defendant was made more than four months before the statute of limitations would have expired. As such, the trial court erred in granting the defendant’s motion to dismiss for insufficiency of service of process.
Finally, the Court of Appeals addressed the trial court’s application of a “diligence” standard for the filing of the proof of service and its further determination of whether that filing would “relate back” to the filing of the complaint. The trial court’s reliance on case law considering when service will relate back to the time of the filing of the complaint was not appropriate. The issue of “diligence” in effecting service and the related determination of whether service will relate back is limited to the unique circumstances where the complaint is filed near the expiration of the statute of limitations and service is effected after the statute has expired, such that the latter will relate back and protect the action from being time-barred. Here, both the proof of service and the defendant’s own admission established that service was effected well before the statute ran. Hence, there was nothing to which service needed to “relate back.”
The judgment was reversed. Perry v. Peterson, 2025 Ga. App. LEXIS 333, 2025 LX 305940 (Ga. App. July 31, 2025).
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