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White v. Jones

Plaintiffs who failed to serve defendant for more than three months after she made a limited appearance to assert inadequate service did not exercise due diligence in serving her outside the limitation period.

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On April 11, 1997, a collision occurred between a vehicle operated by Crystal White and a vehicle operated by Gwendolyn Ruth Jones. On April 9, 1999, Crystal White, Malcolm White, and Marcus White brought this action against Jones. On May 7, Jones made a limited appearance and answered, denying the Whites’ allegations as to her county of residence and address. Jones also asserted affirmative defenses, including lack of jurisdiction, insufficiency of process, insufficiency of service of process, the statute of limitation, and laches. On July 1, Jones still had not been served, and she moved to dismiss the complaint for insufficiency of service of process. The Whites responded, acknowledging that they had not yet succeeded in serving Jones.1 On August 9, the trial court granted Jones’s motion and dismissed the complaint, concluding that the Whites were guilty of laches in failing to serve Jones in a timely fashion or to exercise due diligence in attempting to serve her. Because we find that the trial court did not abuse its discretion in dismissing the complaint, we affirm.

1. On appeal, the Whites raise for the first time the argument that the statute of limitation should not apply to Malcolm and Marcus White because they are minors. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” Citation and punctuation omitted. Padilla v. Melendez, 228 Ga. App. 460, 461 1 491 SE2d 905 1997. In contrast to our decision in Mitchell v. Hamilton, 228 Ga. App. 850, 852 3 493 SE2d 41 1997, in which we concluded that the issue of the application of the statute of limitation to an unemancipated minor was raised in the trial court, although only at oral argument, here the record contains not the slightest indication that the Whites ever raised this issue below.

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