January 29, 2025. The Georgia Court of Appeals affirmed the Dismissal of a case involving the Non Resident Motorist Act in Fulton County.
This case arose out of an automobile collision that occurred on December 16, 2019. The Plaintiff filed her Complaint for injuries on December 21, 2021. The Defendant was a resident of Ohio at the time of the accident thus service needed to be effected on him out of state.
The Georgia Non Resident Motorist Act requires service of process upon a nonresident to be made by serving a copy of the complaint on the Secretary of State, along with a copy of the affidavit of service to be submitted to the court. That service is sufficient as long as notice of the service and a copy of the complaint are sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant and the return receipt also filed with the Court.
In this case, Plaintiff filed a Certificate of Acknowledgment with the Georgia Secretary of State on February 16, 2022. Plaintiff attached to that certificate a record of an attempt at service which indicated “Return to Sender, Attempted- Not Known. Unable to Forward.” Plaintiff then sought the appointment of a Special Process Server who attempted personal service at that same address. The current resident confirmed to the process server that the Defendant did not reside there. Plaintiff then filed a second certificate purporting to effect service under the Nonresident Motorist Act based upon that attempt.
In the original case and the appeal, Mr. Makarenko argued that in order to effect service under the Non-Resident Motorist Act, the certified mail must be sent to an address known to be where the defendant resides pursuant to Guerrero v. Tallez, 242 Ga. App. 354 (2000) and other precedent. In his brief, he argued that the law required that the statute must be strictly complied with.
On January 28, 2025, the Court of Appeals affirmed the dismissal without opinion stating that:
(1) No reversible error of law appears, and an opinion would have no precedential value; and
(2) The judgment of the trial court adequately explains the decision.
The Court of Appeals Case is A24A1321 and the Order from the Court of Appeals can be found here.
The original case is Esther Tella v. Troy Davis, State Court of Fulton County, CAFN 21-EV-7202.
Read more about Partner Nik Makarenko here.