Violanda Moreno filed the underlying personal injury lawsuit against Loretta Diane Naylor six days before the expiration of the two-year statute of limitation,1 but did not serve process on her until almost four months after the statute of limitation had run, and then only by publication. The trial court granted Naylor’s motion to dismiss on the ground that Moreno had not acted with the required diligence in effecting service. Moreno appeals, arguing i the exercise of due diligence as foreclosing dismissal, and ii due diligence as established by the trial court’s order permitting service by publication. Finding no abuse of discretion upon the dismissal of the underlying action, we affirm. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. Footnote and punctuation omitted. Green v. Cimafranca , 288 Ga. App. 16, 17-18 1 653 SE2d 782 2007. The record shows that Moreno sued Naylor on November 14, 2008 for personal injuries suffered in a November 20, 2006 automobile accident. Moreno alleged that in turning left, Naylor had negligently failed to yield at an intersection causing her vehicle to collide with the vehicle in which Moreno was a passenger. Moreno, through counsel, employed a private process service company owned by David Batzle to serve Naylor. Jenner Arnold, an associate in Batzle’s company and not a process server qualified to serve process in the trial court, thereafter attempted to serve process on Naylor at her Powder Springs residence on eight different occasions and at different times between November 15, 2008 and November 22, 2008. In her affidavit of diligence, Arnold noted that “no one was home, the T.V. was on, no cars in drive .” On December 1, 2008, Moreno was first put on notice that Naylor had not been served within the two-year statute of limitation when Batzle informed Moreno’s attorney that service had not been perfected at that time. Moreno allowed two and a half months to elapse between the last service attempt at Naylor’s residence and the filing of her motion service by publication. During that period of time Batzle lost contact with Arnold, and apart from multiple phone calls to Batzle seeking an update as to Batzle’s efforts to locate Arnold and personal searches for Arnold at a new address undertaken on the internet, Moreno’s attorney made no other attempt to serve Naylor.
Naylor filed her answer on January 12, 2009, again placing Moreno on notice that she had not been personally served, raised the affirmative defenses of insufficiency of process and insufficiency of service of process pursuant to OCGA § 9-11-12 b 4 and 5, respectively, and stated that she could be served at her residence where service had purportedly been attempted.
