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Patel v. Sanders

The plaintiffs failed to exercise due diligence in serving the defendants within the applicable 2-year statute of limitation.

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Suresh Patel and Manju Patel appeal from the trial court’s dismissal of their suit against Ylan Sanders and Toye Sanders, based on insufficient service of process and resulting lack of personal jurisdiction.1 State Farm Mutual Automobile Insurance Company, the Patels’ uninsured/underinsured motorist carrier, remains a defendant below. Finding no error, we affirm. On July 23, 2000, the Patels were injured in an auto accident on Interstate Highway 20, causing serious injuries to both. The car which struck their car was being driven by Ylan Sanders and owned by Toye Sanders, her mother. The complaint was filed on April 18, 2002. Because agents hired by plaintiffs’ counsel had been unable to locate and serve Ylan Sanders and Toye Sanders, an order for service by publication was sought and issued on July 10, 2002, and the notice was published on September 18 and 25 and October 2 and 9, 2002. The two-year statute of limitation expired on July 23, 2002.

Although an affidavit was filed by one of plaintiffs’ agents stating that he personally served Toye Sanders on July 19, 2002, in fact, that service was made upon Daryn Sanders, Toye Sanders’ ex-husband and Ylan Sanders’ father at Daryn’s place of employment. An answer was filed by Toye Sanders and Ylan Sanders on August 6, 2002, asserting lack of personal jurisdiction, insufficiency of service of process, and the statute of limitation. On August 22, a Motion to Dismiss or for Summary Judgment was filed by the Sanderses, supported by their affidavits that neither had been served nor had they attempted to conceal themselves or avoid service.

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