Rickey Simmons v. Cooper Turner ( 2023 )

FIFTH DIVISION
MCFADDEN, P. J.,
BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
December 8, 2023
In the Court of Appeals of Georgia
A23A1328. SIMMONS v. TURNER.
BROWN, Judge.
Rickey Simmons appeals from the trial court’s dismissal of his renewal suit
against Cooper Turner. Simmons contends that the trial court erred in finding that he
failed to properly serve Turner and Turner’s parent with a copy of the summons and
complaint in Simmons’ original action and in finding that the original action was void
instead of voidable. We find no error and affirm.
“We review the trial court’s ruling on a motion to dismiss under the de novo
standard of review.” (Citation and punctuation omitted.) Durland v. Colotl, 359 Ga.
App. 170, 172 (1) (855 SE2d 83) (2021). The record shows that Simmons and Turner
were involved in a car accident on August 29, 2019, when Turner was 16 years old.
Simmons filed suit against Turner on April 3, 2020, while Turner was still a minor.
At the time, Turner was unmarried and residing with his parents. The sheriff’s
affidavit of service states that Turner was “notorious[ly]” served “by leaving a copy
of the action and summons at his most notorious place of abode. . . . Delivered same
into hands of Mark Turner.”1 Turner filed an answer by special appearance asserting
a lack of personal jurisdiction due to improper service along with a motion to dismiss.
On December 29, 2021, the statute of limitation expired.2 In April 2022, Simmons
filed the affidavit of a special process server stating that the process server had
“personally served Cooper Turner” with a “Witness Subpoena.” On May 13, 2022,
Simmons voluntarily dismissed his suit.
On May 26, 2022, Simmons filed a renewal suit against Turner “based upon
substantially the same causes of action.” Turner acknowledged service and filed an
1
Although not clear based on the record, Simmons alleges that Mark Turner is
Cooper Turner’s father.
2
The statute of limitation in this case would have expired on August 29, 2021.
See OCGA § 9-3-33 (establishing a two-year statute of limitation for actions for
personal injuries). However, as a result of the tolling provisions in the statewide
judicial emergency orders issued by the Supreme Court of Georgia in response to the
COVID-19 pandemic, the statute of limitation expired on December 29, 2021. See
Garrison v. State, 368 Ga. App. 819, 822-824 (1) (b) (890 SE2d 869) (2023);
Beauparlant v. Aiken, 362 Ga. App. 341, 343 (868 SE2d 482) (2022).
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answer asserting various defenses including statute of limitation, lack of personal
jurisdiction, and failure to state a claim. Turner simultaneously filed a motion to
dismiss Simmons’ complaint on the basis that Simmons failed to properly serve the
original complaint prior to his voluntary dismissal. A hearing was held, but the
transcript is not part of the appellate record.
The trial court granted Turner’s motion to dismiss, finding that Turner was
never personally served with the complaint and summons in the original action.
Specifically, in the first attempt, a copy of the complaint and summons was given to
Mark Turner, and in the second attempt, Turner was served with a witness subpoena
according to the affidavit of service. The trial court further found that Simmons failed
to perfect service on Turner’s parent. Simmons appeals from the dismissal.
OCGA § 9-2-61 (a) provides for the renewal of a suit as follows:
When any case has been commenced . . . within the applicable statute of
limitations and the plaintiff discontinues or dismisses the same, it may be
recommenced . . . either within the original applicable period of
limitations or within six months after the discontinuance or dismissal,
whichever is later . . .; provided, however, if the dismissal or
discontinuance occurs after the expiration of the applicable period of
limitation, this privilege of renewal shall be exercised only once.
3
But, “a suit is incapable of renewal if service was never perfected in the original suit
[and] Georgia law is indisputably clear on this issue.” (Citation and punctuation
omitted.) McWilliams v. Parker, 362 Ga. App. 147, 148-149 (867 SE2d 151) (2021).
Accord Alston v. Owners Ins. Co., 361 Ga. App. 146, 148-149 (863 SE2d 397) (2021).
This is because “[t]he original suit is void if service was never perfected, since the
filing of a complaint without perfecting service does not constitute a pending suit.”
Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). See also Thorburn Co. v.
Allied Media of Ga., 237 Ga. App. 800, 802 (1) (516 SE2d 833) (1999) (“If service is
never perfected and is not waived, the court does not acquire jurisdiction over the
defendant and the suit is void, since the filing of a complaint without perfecting
service does not constitute a pending suit.”) (citations and punctuation omitted).
Accordingly, we must determine whether Simmons properly served Turner in the
original suit.
The provisions governing service on a minor are found in OCGA § 9-11-4 (e)
(3), which provides:
(e) . . . Service shall be made by delivering a copy of the summons
attached to a copy of the complaint as follows:
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(3) If against a minor, to the minor, personally, and also to such
minor’s father, mother, guardian, or duly appointed guardian ad litem
unless the minor is married, in which case service shall not be made on
the minor’s father, mother, or guardian[.]
“We generally construe the personal service requirements in OCGA § 9-11-4 (e) . .
. strictly because notice is central to due process.” (Citation and punctuation
omitted.) Crispin v. State of Ga., 360 Ga. App. 485, 488 (1) (861 SE2d 444) (2021).
The plain wording of the statute requires that the minor must be personally served as
well as the minor’s parent or guardian. See Trent v. Franco, 253 Ga. App. 104, 107 (1)
(a) (558 SE2d 66) (2001) (“the personal service required on a minor is separate and
distinct from the service required on her parent”). See also Lanier v. Foster, 133 Ga.
App. 149, 152-153 (2) (210 SE2d 326) (1974). Accordingly, Simmons’ first attempt to
serve Cooper was unsuccessful because the complaint and summons were given to
Mark Turner.
As to the second attempt, Simmons seems to contend that the affidavit of
service simply contained a scrivener’s error.3 But as the trial court noted in its order,
3
At times, Simmons’ brief is jumbled and even incoherent, making his
arguments somewhat unclear.
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“[w]hile Plaintiff asserts there is a ‘scrivener’s error’ in the Affidavit, no basis for
such claim has been presented.” Simmons could have filed an affidavit from the
process server in which he averred that this was indeed a scrivener’s error and that he
actually served Turner with a copy of the complaint and summons rather than a
witness subpoena. But Simmons did not do this or put forth any other evidence
contradicting the affidavit of service which shows that Turner was not properly served
with the complaint and summons on the second service attempt. Cf. CNL Ins. Am. v.
Moreland, 226 Ga. App. 57, 58 (485 SE2d 515) (1997) (“Factual assertions in briefs are
not evidence and may not support a ruling by this Court.”).
Simmons also contends that because he voluntarily dismissed the original suit
“prior to any substantial rulings by the trial court,” the original suit was voidable
instead of void. This argument lacks merit.
The privilege of dismissal and renewal does not apply to cases
decided on their merits or to void cases, but does allow renewal if the
previous action was merely voidable. The original suit is void if service
was never perfected, since the filing of a complaint without perfecting
service does not constitute a pending suit. A suit is also void and
incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial
determination that dismissal is authorized. However, unless and until the
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trial court enters an order dismissing a valid action, it is merely voidable
and not void.
(Citation and punctuation omitted.) Trent, 253 Ga. App. at 106-107 (1). See also
Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010) (“it is firmly established
that the renewal suit is deemed an action de novo, in which defenses to the original
action are inapplicable unless they would render the original action void and not just
voidable”). “[W]here the issue is the reasonableness of the service on defendant,
outside the statute of limitation, of a timely-filed action, the original action is not void,
but is merely voidable and, therefore, subject to renewal.” (Emphasis omitted.) Allen
v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998). In other words, so long as the
defendant is served before the original action is dismissed — even if after the running
of the statute of limitation — the original action is merely voidable and not void, and
a valid renewal suit may be filed. See Boyd v. Robinson, 299 Ga. App. 795, 796-797 (683
SE2d 862) (2009). But, here, Simmons never perfected service on Turner in the
original action.4 “As a result, when [Simmons] dismissed the original complaint
4
Simmons also enumerates as error the trial court’s finding that he failed to
properly serve Turner’s parent/guardian as required by OCGA § 9-11-4 (e) (3). Given
our conclusion that Simmons failed to serve Turner, we need not address this issue.
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without ever having served [Turner], the original action was not a ‘valid action’ to
which OCGA § 9-2-61 (a) applied. It necessarily follows that the trial court correctly
dismissed [Simmons’] renewal action, filed well after the statute of limitation
expired.” (Citations omitted.) Durland, 359 Ga. App. at 172 (1). See also McWilliams,
362 Ga. App. at 149 (affirming dismissal of the plaintiff’s renewal suit because plaintiff
failed to properly serve the defendant before original action was dismissed).
Judgment affirmed. McFadden, P. J., and Markle, J., concur.
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