HALL v. MUNGAI (2026)

Courtney Hall and Delisha Ross filed this personal injury action against Bryan Mungai, alleging that they were injured in an automobile collision. They appeal from the order granting Mungai's motion to dismiss for insufficiency of service of process. They argue that they perfected service; that the trial court erred by considering Mungai's untimely motion to dismiss; that the trial court erred by denying their motion for service by publication; and that they exercised the requisite diligence in attempting to serve Mungai. We hold that the plaintiffs have not shown reversible trial court error. So we affirm.

1. Background

The record shows that the parties were involved in an automobile collision on December 21, 2022. Mungai entered a plea of nolo contendere for following too closely on February 16, 2023. The plaintiffs filed their action on October 24, 2024.

On October 28 and 29, 2024, the plaintiffs attempted to serve Mungai at the Buford, Georgia address listed for him in their complaint. No one answered the door either time. The process server made another attempt at that address on November 2, 2024. In the affidavit of non-service, the process server testified that the tenant, who had resided there for four months, said that Mungai did not live there and that the tenant did not know him.

The plaintiffs hired a private investigator to conduct a skip trace to identify Mungai's address. A process server attempted to serve Mungai on November 18, 2024, at an address on Piedmont Avenue in Atlanta. The process server testified in an affidavit of non-service that the leasing manager informed him that Mungai did not live at that address.

The plaintiffs hired another private investigator who conducted a skip trace and identified a different address in Buford, Georgia. A process server attempted to serve Mungai at that address on December 11 and 13, 2024, but no one answered the door. He tried again on December 14, 2024, but, according to the affidavit of non-service, the resident said that Mungai, her former boyfriend, did not live there and that she had no information about his current address.

On January 27, 2025, Mungai filed a special appearance answer, raising the insufficiency of service of process as a defense. (The record does not show whether Mungai filed the special appearance answer himself or whether it was filed on his behalf by another person or entity, such as an insurance company.)

The statute of limitation ran on February 16, 2025, two years and one day after Mungai entered his plea of nolo contendere. OCGA § 9-3-99. See generally Harrison v. McAfee, 338 Ga. App. 393, 398(2)(b), 788 S.E.2d 872 (2016); McNeil v. McCollum, 276 Ga. App. 882, 886(1), 625 S.E.2d 10 (2005). The plaintiffs then were required to exercise the greatest possible diligence in serving Mungai. Van Omen v. Lopresti, 357 Ga. App. 9, 849 S.E.2d 758 (2020).

On February 21, 22, and 23, 2025, a process server attempted to serve Mungai at the same Piedmont Avenue address in Atlanta where service had been attempted on November 18, 2024, and where the leasing manager had informed the process server that Mungai did not live. In the affidavit of non-service, the process server noted “no access to building.” But see OCGA § 9-11-4(f)(4)(B) (requiring that access to gated and secured communities be granted to process servers).

The process server returned to that address on February 24, 2025, and left the summons, complaint, and discovery documents with a “Leasing Agent who refused to provide her name,” according to the affidavit of service. The record contains no evidence of any further attempts at personal service, and it contains no evidence that Mungai ever has been personally served.

On March 14, 2025, about six weeks after Mungai filed his special appearance answer, the plaintiffs filed a motion to allow service by publication on the grounds “that after diligent search, defendant cannot be found within the State of Georgia after the exercise of due diligence or that he conceals himself to avoid service[.]” The trial court denied that motion ten days later, holding that the plaintiffs did not show that Mungai had actual knowledge of the lawsuit nor that he was evading service by concealing himself.

Mungai then moved to dismiss the complaint, the trial court granted the motion, and the plaintiffs filed this appeal.

2. Service under OCGA § 9-11-4(e)(7)

The plaintiffs argue that the trial court erred in dismissing the complaint because they perfected service when the process server left the summons and complaint with a person of suitable age and discretion. We disagree.

Service may be made “by leaving copies [of the summons and complaint] at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein[.]” OCGA § 9-11-4(e)(7). The plaintiffs argue that Mungai was served when the process server left “the complaint and summons with [Mungai's] landlord, who is obviously of suitable age and discretion” at the Piedmont Avenue address. As there is no evidence in the record concerning a landlord, the plaintiffs apparently mean the “Leasing Agent who refused to provide her name” with whom the process server left the documents on February 24, 2025.

Assuming that location was Mungai's residence (in spite of the leasing manager having informed the process server in November 2024 that Mungai did not live at that address), the plaintiffs have pointed to no evidence that the unidentified person with whom the process server left the documents “resid[ed] therein” as required for service under OCGA § 9-11-4(e)(7). “In the absence of any evidence that service was made upon a resident of [Mungai's] dwelling or usual place of abode, we must conclude that service was improper. ․” Guerrero v. Guerrero, 296 Ga. 432, 434(1), 768 S.E.2d 451 (2015).

3. Motion to dismiss

The plaintiffs argue that the trial court erred in considering Mungai's motion to dismiss because it was untimely. They argue that because Mungai raised his insufficiency of service of process defense in his special appearance answer, he had to file his motion to dismiss at the same time. They have not shown reversible error.

The plaintiffs base their argument on Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 220 S.E.2d 86 (1975). Hayes does not support their argument. In that case, the court held that under Code Ann. § 81A-112 (the virtually identical predecessor to OCGA § 9-11-12, see Wallis v. Trustees, Sugar Hill United Methodist Church, 252 Ga. 51, 52, 310 S.E.2d 915 (1984)), a defendant's motion to dismiss raising 12(b) defenses, filed after the filing of the answer raising those same defenses, was untimely. Hayes, 136 Ga. App. at 98-99, 220 S.E.2d 86. The court pointed to the language in 12(b) that a motion raising a 12(b) defense shall be made before or at the time of pleading. Id. at 99, 220 S.E.2d 86. See OCGA § 9-11-12(b). The court explained that “when the choice is made to make the enumerated defenses of [now-OCGA § 9-11-12(b)] by answer, a motion to dismiss on the same grounds cannot thereafter be brought but that the proper procedure is application for a preliminary hearing under [now OCGA § 9-11-12(d)].” Hayes, 136 Ga. App. at 100, 220 S.E.2d 86.

Nonetheless, relying on the rule that the substance of a pleading determines its nature, the Hayes court held that “the motion to dismiss in fact served every function of an application for preliminary hearing of a [now-OCGA § 9-11-12(b)] defense. ․” Hayes, 136 Ga. App. at 101, 220 S.E.2d 86. So the court reversed the trial court's order denying the defendant's motion to dismiss on the ground that it was untimely. Id. at 98, 220 S.E.2d 86 (syllabus of the court), 101.

Under this reasoning, the trial court did not err by considering Mungai's motion to dismiss.

4. Service by publication

The plaintiffs argue that the trial court erred by denying their motion for service by publication. They have not shown reversible error.

We review the trial court's decision for an abuse of discretion. Rosser v. Lynn, 365 Ga. App. 301, 878 S.E.2d 262 (2022). OCGA § 9-11-4(f)(1)(A) provides:

When the person on whom service is to be made ․ cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons. ․

The plaintiffs argue that the trial court erred in denying their motion, because the court did not consider whether they were entitled to service by publication under the ground that Mungai “cannot, after due diligence, be found within the state.” Id. But the plaintiffs misconstrue the trial court's order. The trial court denied the motion for service by publication on the ground that under the facts of this case, such service would not be sufficient to acquire personal jurisdiction over Mungai. We find no error in this holding.

In general, service by publication does not confer personal jurisdiction over a defendant. Ragan v. Mallow, 319 Ga. App. 443, 446(2), 744 S.E.2d 337 (2012). However,

[i]f the defendant is a resident who is actually present within the jurisdiction of the court, has actual knowledge of the suit, and wilfully secrets himself in order to frustrate all reasonable efforts to effect personal service, then the service by publication affords sufficient due process and confers personal jurisdiction over the defendant.

Id. at 446-47(2), 744 S.E.2d 337 (quotation marks omitted). See Melton v. Johnson, 242 Ga. 400, 402-03, 249 S.E.2d 82 (1978). The trial court implicitly held that the plaintiffs could not avail themselves of this exception to obtain personal jurisdiction over Mungai, and therefore service by publication was unavailable, because they “did not offer facts to establish that [Mungai] has actual knowledge of this lawsuit, nor that he is evading service, by concealing himself, as required by OCGA § 9-11-4.” So it denied the motion for service by publication.

Related to the trial court's conclusion, the plaintiffs argue that they indeed showed that Mungai was evading service. Their attorney's affidavit filed in support of the motion for service by publication, however, “simply reflects that efforts to locate [Mungai] ha[d] been unsuccessful, and a finding that a defendant is concealing [him]self to avoid service requires more than evidence that the defendant simply cannot be located or has moved to a new location.” Montague v. Godfrey, 289 Ga. App. 552, 556-57(2), 657 S.E.2d 630 (2008) (physical precedent only), overruled in part on other grounds by Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 317-21(2) & 319(2) n. 2, 765 S.E.2d 413 (2014). “In the case at bar, we cannot conclude that the trial court abused its discretion in ․ concluding that [the plaintiffs] had failed to sustain [their] burden of proving that [Mungai] wilfully concealed himself to frustrate all reasonable attempts at personal service.” Green v. Cimafranca, 288 Ga. App. 16, 20(2), 653 S.E.2d 782 (2007), overruled in part on other grounds by Giles, 330 Ga. App. at 317-21(2) & 319(2), 765 S.E.2d 413. See Griffin v. Stewart, 362 Ga. App. 669, 672(1)(a), 870 S.E.2d 3 (2022) (service by publication did not confer personal jurisdiction over defendant because evidence that plaintiff attempted to serve him six times at multiple different addresses at which he did not reside was insufficient to show that he evaded service). Cf. Melton, 242 Ga. at 401, 249 S.E.2d 82 (defendant continuously, wilfully, and deliberately attempted to avoid service, including by speaking with plaintiffs’ attorney over the phone about the lawsuit, but declining to allow himself to be served, saying he had no assets in his name and was judgment-proof); Cascade Parc Prop. Owners Ass'n v. Clark, 336 Ga. App. 94, 96, 783 S.E.2d 692 (2016) (trial court erred in denying motion for service by publication when “defendant ․ knew service of the lawsuit was being attempted [but] evaded the process server by remaining behind a locked door”).

5. Sufficiency of service

The plaintiffs argue that the trial court erred in finding that they failed to exercise the greatest possible diligence in attempting to serve Mungai. “A trial court's finding of insufficient service of process must be upheld on appeal absent a showing of an abuse of discretion.” Kelley v. Lymon, 279 Ga. App. 849, 850, 632 S.E.2d 734 (2006). The plaintiffs have not shown an abuse of discretion.

The plaintiffs provided no explanation at all for the more-than-two-month gap between the unsuccessful service attempt on December 14, 2024, and the unsuccessful attempts in February 2025. “[U]nexplained lapses in attempting service indicate a failure to pursue service in a reasonably diligent manner.” Williams v. Patterson, 306 Ga. App. 624, 627(1), 703 S.E.2d 74 (2010) (quotation marks omitted).

And the record shows that the only attempts at personal service that they made once the greatest-possible-diligence standard was triggered were the four attempts in February 2025 to serve Mungai at the same Piedmont Avenue address in Atlanta where service had been attempted on November 18, 2024, when the leasing manager had informed the process server that Mungai did not live at that address.

There is nothing in the record explaining why the plaintiffs attempted service at this same address when they had been informed months before that Mungai did not live there.¹ “A plaintiff must provide specific dates or details to show diligence and cannot rely on conclusory statements.” Harlem v. Williams, 326 Ga. App. 526, 528, 757 S.E.2d 149 (2014), overruled in part on other grounds in Giles, 330 Ga. App. at 317-21(2) & 319(2) n. 2, 765 S.E.2d 413 (plaintiff failed to exercise required level of diligence when there was an unexplained lapse of two months after return of service was filed, and plaintiff hired private process server after motion to dismiss was filed).

And the February 2025 service attempts were the last attempts at personal service; the record contains no evidence of any further attempts at personal service, not even in the almost two-month period between Mungai's filing of the motion to dismiss and the trial court's order granting the motion. Nor does the record contain any explanation for this gap.

The plaintiffs’ assertion that they hired skip tracers does not in itself show diligence, either. “[T]he simple assertion that [they] used ․ skip tracer[s] is insufficient to show due diligence without providing specific details or dates to show diligence.” Styles v. Spyke Ten, LLC, 342 Ga. App. 122, 126, 802 S.E.2d 369 (2017). Finally, the record contains no evidence that Mungai has been personally served.

Under these facts, we cannot say that the trial court abused his discretion in determining that the plaintiffs failed to exercise the required diligence to serve Mungai. See Lipscomb v. Davis, 335 Ga. App. 880, 880-81, 783 S.E.2d 398 (2016) (plaintiff made only a few scattered attempts at serving the defendant over the course of nearly four months, including only a single attempt at service after the defendant filed a special answer triggering the greatest-possible-diligence standard); Williams, 306 Ga. App. at 627, 703 S.E.2d 74 (although plaintiff made reasonable attempts to serve defendant for several months after filing his renewal action, gaps in attempts at service, including time after defendant had filed motion to dismiss based on lack of service, meant that plaintiff failed to show the requisite service, even though plaintiff alleged without evidence that defendant was evading service and even though defendant was eventually served).

Judgment affirmed.

FOOTNOTES

1.   In their appellate brief, the plaintiffs state that they conducted yet a third skip trace that again led them to this address. They do not provide a record citation supporting the claim of a third skip trace, and we have found no evidence of such in the record.

McFadden, Presiding Judge.

Watkins and Padgett, JJ., concur.