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Jones v. Lopez-Herrera

Evidence supported the trial court's dismissal of the complaint for failure to perfect service of process.

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This appeal follows the dismissal of a complaint for failure to perfect service of process. For the reasons set forth infra , we affirm. The record shows that appellant, Inyianie Jones, originally filed a complaint for damages, arising out of an October 24, 2007 car accident, against appellee, J. Soledad Lopez-Herrera, on June 30, 2008. The action was dismissed on or about August 30, 2009, for failure to prosecute and was then refiled on August 31, 2009. At the time of refiling and again in September 2009, Ms. Jones filed a motion to serve Mr. Lopez-Herrera by way of a court-appointed process server, claiming that he had willfully avoided service of process in the previously dismissed action.1 Thereafter, Ms. Jones claims that Mr. Lopez-Herrera was personally served by the court-appointed process server at 5715 Hammond Drive, Norcross, Georgia 30071 on October 27, 2009, citing an affidavit of service signed by the process server and filed with the trial court.

Mr. Lopez-Herrera denies having been served with a copy of the complaint, and he filed a special answer, reserving all defenses arising from service, process and jurisdiction, and alleging that Ms. Jones’s complaint should be dismissed for failure of service.2 Mr. Lopez-Herrera then filed a motion to dismiss, in which he argued that he had not been properly served. In support of his motion, he filed an affidavit averring that he had not been served by the process server and did not reside at the service address.

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