Georgia Code, Volume 07, 2012 Supplement

2012·18.3 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
Including Acts ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial Staff ofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume
7
2006 Edition
Title 9. Civil Practice (Chapters 11-15)
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
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Copyright © 1994—2012
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-0-8205-7181-2
5012729
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
Annotations ofJudicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 30, 2012. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgia Annotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 30, 2012.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal ofInternational and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal ofIntellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2012 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
TITLE 9
CIVIL PRACTICE
VOLUME
6
Chap.
2. Actions Generally, 9-2-1 through 9-2-63.
6. Extraordinary Writs, 9-6-1 through 9-6-66.
9. Arbitration, 9-9-1 through 9-9-133.
10. Civil Practice and Procedure Generally, 9-10-1 through
9-10-204.
VOLUME
7
11. Civil Practice Act, 9-11-1 through 9-11-133.
12. Verdict and Judgment, 9-12-1 through 9-12-138.
14. Habeas Corpus, 9-14-1 through 9-14-53.
—
Lawreviews. For article, "The Fed- Realism as a Jurisprudence of Law Re-
eral Rules of Civil Procedure and Legal form," see 44 Ga. L. Rev. 433 (2010).
CHAPTER
11
CIVIL PRACTICE ACT
Article 2 Sec.
Commencement ofAction and 9-11-6. Time.
Service Article 3
Pleadings and Motions
Sec.
9-11-4. Process. 9-11-9.1. Affidavit to accompany charge
9-11-4.1. Certified process servers; pro- ofprofessional malpractice.
cedure for becoming a certified 9-11-9.2. Medical authorization forms;
process server; denning crime review of protected health in-
of impersonating a process formation.
server; punishment; sunset. 9-11-12. Answer, defenses, and objec-
9-11-5. Service and filing ofpleadings tions; when andhow presented
subsequenttotheoriginalcom- and heard; when defenses
plaint and other papers. waived; stay ofdiscovery.
2012 Supp.
T.9, C.ll CIVIL PRACTICE 9-11-1
Article 5 Sec.
Depositions and Discovery 9-11-34.1. Civil actions for evidence
seized in criminal proceedings.
Sec.
9-11-29.1. When depositions and other Article 10
discovery material must be Forms
filed with court; custodian un-
til filing; retention of deposi- 9-11-133. Forms meeting requirements
tionsandotherdiscoverymate- for civil case filing and disposi-
rials. tion.
ARTICLE
1
SCOPE OF RULES AND FORM OF ACTION
9-11-1. Scope of chapter; construction.
JUDICIAL DECISIONS
Analysis
General Consideration
Courts to Which ChapterApplicable
General Consideration withrespecttoaninremquiettitle action
against all the world, the Civil Practice
Workers' compensation.
Act, O.C.G.A. § 9-11-1 et. seq., was inap-
O.C.G.A. § 9-ll-15(c) has not been in- plicable. Woodruffv. Morgan County, 284
corporated into the Georgia Workers'
Ga. 651, 670 S.E.2d 415 (2008).
Compensation Act, O.C.G.A. § 34-9-1 et Civil procedure rules not adequate
seq. McLendonv.AdvertisingThatWorks, substitute for substantive constitu-
29H2aGbae.aAsppc.o6r7p7u,s66p5roSc.eE.e2ddin3g7.0 (—200H8a).- tional rights of in—personam forfei-
ture proceedings. In an in personam
beas court's order denying an inmate's
forfeiture proceeding, pursuant to the
verified petition, which asserted thattrial Racketeer Influenced and Corrupt Orga-
counsel rendered ineffective assistance,
wasreversed, astheallegationscontained nizations Act, O.C.G.A. § 16-14-7(m), a
trial court erred by finding that the civil
in said petition served as sufficient evi-
procedural rules set forth in the Georgia
dence to support the inmate's claim that
counsel failed to file a notice of appeal Civil Practice Act, O.C.G.A. § 9-11-1 et
afterbeinginstructed bythe inmate to do seq., were an adequate substitute for the
so. Rolland v. Martin, 281 Ga. 190, 637 substantive constitutional rights to which
S.IE.n2rde2m3 q(2u0i0e6t).title actions. —Default trehseulptr,otpheertSyuporwenmeersCowuerrteofenGteiotlregdi.aAhselad
judgment against owners in a quiet title that § 16-14-7(m) was unconstitutional
action based on their failure to answer becauseitdeprivedinpersonamforfeiture
was improper because, once the in rem defendants of the safeguards of criminal
proceeding was instituted, the trial court procedure guaranteed by the United
was required, pursuant to O.C.G.A. States and Georgia Constitutions. Ciscov.
§ 23-3-63, to submit the matter to a spe- State, 285 Ga. 656, 680 S.E.2d 831 (2009—).
cial master, and a special master was Construction with other law.
never appointed such that service could Upon reading the rules within the Civil
haveproperlybeencompletedpursuantto Practice Act in para materia with Ga.
the Quiet TitleAct, O.C.G.A. § 23-3-60 et Unif. Super. Ct. R. 24.6(B), the trial court
seq.; since the Quiet Title Act provided was authorized to grant a divorce well
specific rules of practice and procedure after 30 days from the time an answer
2012 Supp.
9-11-1 CIVIL PRACTICE ACT 9-11-3
would have been due; hence, the trial dissatisfaction with the compensation
court did not err in denying a wife's mo- awarded by the special master, as it pro-
tionto setsaidjudgmentaside. Hammack vided the utilitywith sufficient notice un-
v. Hammack, 281 Ga. 202, 635 S.E.2d 752 der the Civil Practice Act, O.C.G.A.
(2006). § 9-11-1 et seq., that the landowner was
Cited in Ga. Pines Cmty. Serv. Bd. v. objecting to the valuation given on the
Summerlin, 282 Ga. 339, 647 S.E.2d 566 property; moreover, inlightoftheinterest
(2007). that the utility acquired in the property,
Courts to Which ChapterApplicable and the purposes for which it intended to
use that property, consequential damages
Special master's award in condem- potentially represented a significant por-
—
nation proceeding. Trial court prop- tion of the compensation the landowner
erly refused to dismiss a landowner's ap- could recover. Ga. Power Co. v. Stowers,
peal on grounds that it failed to express 282 Ga. App. 695, 639 S.E.2d 605 (2006).
RESEARCH REFERENCES
Am. J—ur. Pleading and Practice
Forms. 1 Am. Jur. Pleading and Prac-
tice Forms,Accord and Satisfaction, § 33.
ARTICLE 2
COMMENCEMENT OF ACTION AND SERVICE
—
Lawreviews. For annual surveyon
trial practice and procedure, see 61 Mer-
cer L. Rev. 363 (2009).
9-11-3. Commencement of action; filing of civil case filing form.
—
Law reviews. For annual survey of
trial practice and procedure, see 58 Mer-
cer L. Rev. 405 (2006).
JUDICIAL DECISIONS
Filing must be followed by service. injury action filed against defendant on
Despite the fact that the Court ofAp- insufficient service ofprocess grounds, as:
pealsofGeorgiacouldnotdiscernwhether (1) plaintiffdidlittle to pursue service; (2)
apersonalinjuryactionfiledbyahusband plaintiff inappropriately shifted the bur-
and wife against a driver was dismissed denofsaidsearchonthecourt; and(3)the
because the statute oflimitation had ex- factthat defendant servedinterrogatories
pired or because the husband and wife and a request for production did not
were not diligent in attempting service, amount to a waiver ofan insufficient ser-
the trial court did not abuse its discretion vice of process defense. Kelley v. Lymon,
in dismissing the action because the 279 Ga. App. 849, 632 S.E.2d 734 (2006).
driver had never been personally served Bankruptcy trustee's late service on a
withthe complaint priorto the expiration driver did not relate back to the filing of
of the statute of limitation. Nyass v. the personal injury complaint where the
Tilahun, 281 Ga.App. 542, 636 S.E.2d 714 trustee failed to show that the trustee
(2006). — reasonably and diligently insured that
Timeliness of service. Trial court service was made as quickly as possible
properly dismissed a plaintiff's personal afterthedrivermadethetrustee awareof
2012 Supp.
9-11-3 CIVIL PRACTICE 9-11-4
—
the driver's true residence. Webster v. Laches finding against plaintiff.
Western Express, Inc., No. 5:05-CV-350 In a personal injury suit, although plain-
(WDO), 2007 U.S. Dist. LEXIS 70011 tiff passenger attempted to serve defen-
(M.D. Ga. Sept. 21, 2007). dant driver only once prior to the expira-
Because a plaintiff did not satisfy the tion of the statute of limitation, upon
plaintiff's burden of showing that the encounteringdifficultylocatingthedriver,
plaintiff exercised due diligence in per- the passenger's response was delayed at
fecting service of process on the defen- best, notwithstanding the imminent run-
dant, the trial court abused the court's ning ofthe statute oflimitation, and the
discretion in denying the defendant's mo-
passenger did not even try to serve the
tion to dismiss. Jones v. Brown, 299 Ga. driver until after the statute had run;
App. 418, 683 S.E.2d 76 (2009).
Action commenced as offilingdate. thus, under the circumstances, the trial
court properly found the passenger guilty
Trial court did not err in dismissing an
officer's claims against an entity on the oflaches. Pattersonv. Lopez, 279 Ga.App.
groundthatthe claims were filed inviola- 840, 632 S.E.2d 736 (2006).
tion ofan automatic bankruptcy stay pro- Cited in Kirkland v. Tamplin, 283 Ga.
vided by 11 U.S.C. § 362 because, when App. 596, 642 S.E.2d 125 (2007); Fox v.
the original complaint was filed, that en- City of Cumming, 289 Ga. App. 803, 658
titywas a debtorinbankruptcy; the auto- S.E.2d 408 (2008); Rooks v. Tenet Health
matic stay was in effect at the time the Sys. GB, Inc., 292 Ga. App. 477, 664
action was commenced, rendering the S.E.2d861 (2008);BatesvilleCasketCo.v.
claims against the entity void ab initio. Watkins Mortuary, Inc., 293 Ga.App. 854,
Odion v. Varon, 312 Ga. App. 242, 718 668 S.E.2d 476 (2008).
S.E.2d 23 (2011).
9-11-4. Process.
—
(a) Summons Issuance. Upon the filing of the complaint, the
clerk shall forthwith issue a summons and deliver it for service. Upon
request of the plaintiff, separate or additional summons shall issue
against any defendants.
—
(b) Summons Form. The summons shall be signed by the clerk;
contain the name ofthe court and county and the names ofthe parties;
be directed to the defendant; state the name and address of the
plaintiffs attorney, if any, otherwise the plaintiffs address; and state
the time within which this chapter requires the defendant to appear
and file appropriate defensive pleadings with the clerk ofthe court, and
shall notify the defendant that in case ofthe defendant's failure to do so
judgment by default will be rendered against him or her for the relief
demanded in the complaint.
—
(c) Summons By whom served. Process shall be served by:
(1) The sheriffofthe county where the action is brought or where
the defendant is found or by such sheriffs deputy;
(2) The marshal or sheriffofthe court or by such official's deputy;
(3) Any citizen of the United States specially appointed by the
court for that purpose;
2012 Supp.
9-11-4 CIVIL PRACTICEACT 9-11-4
(4) A person who is not a party, not younger than 18 years ofage,
and has been appointed by the court to serve process or as a
permanent process server; or
(5) Acertified process server as provided in Code Section 9-11-4.1.
Where the service ofprocess is made outside ofthe United States, after
an order of publication, it may be served either by any citizen of the
United States or by any resident of the country, territory, colony, or
province who is specially appointed bythe court for that purpose. When
service is to be made within this state, the person making such service
shall make the service within five days from the time of receiving the
summons and complaint; butfailure to make service within the five-day
period will not invalidate a later service.
(d) Waiver of service.
(1) Adefendantwho waives service ofa summons does not thereby
waive any objection to the venue or to the jurisdiction of the court
over the person ofthe defendant.
(2) Upon receipt of notice of an action in the manner provided in
this subsection, the following defendants have a duty to avoid
unnecessary costs of serving the summons:
A
(A) corporation or association that:
(i) Is subjectto service underparagraph (1) or (2) ofsubsection
(e) ofthis Code section; and
(ii) Receives notice of such action by an agent other than the
Secretary of State; and
A
(B) natural person who:
(i) Is not a minor; and
(ii) Has not beenjudicially declared to be ofunsound mind or
incapable ofconducting his or her own affairs.
(3) To avoid costs, the plaintiffmay notify such a defendant ofthe
commencement of the action and request that the defendant waive
service ofa summons. The notice and request shall:
(A) Be in writing and shall be addressed directly to the defen-
dant, if an individual, or else to an officer or managing or general
agent or other agent authorized by appointment to receive service
ofprocess for a defendant subject to service under paragraph (1) or
(2) of subsection (e) ofthis Code section;
(B) Be dispatched through first-class mail or other reliable
means;
2012 Supp. 5
9-11-4 CIVIL PRACTICE 9-11-4
(C) Be accompanied by a copy ofthe complaint and shall identify
the court in which it has been filed;
(D) Make reference to this Code section and shall inform the
defendant, by means ofthe text prescribed in subsection (1) ofthis
Code section, of the consequences of compliance and of failure to
comply with the request;
(E) Set forth the date on which the request is sent;
(F) Allow the defendant a reasonable time to return the waiver,
which shall be at least 30 days from the date on which the request
is sent, or 60 days from that date if the defendant is addressed
outside anyjudicial district ofthe United States; and
(G) Provide the defendant with an extra copy ofthe notice and
request, as well as a prepaid means ofcompliance in writing.
(4) Ifa defendant located within the United States that is subject
to service inside or outside the state under this Code section fails to
comply with a request for a waiver made by a plaintifflocated within
the United States, the court shall impose the costs subsequently
incurred in effecting service on the defendant unless good cause for
the failure is shown.
A
(5) defendant that, before being served with process, returns a
waiver so requested in a timely manner is not required to serve an
answer to the complaint until 60 days after the date on which the
request forwaiver ofservice was sent, or 90 days afterthat date ifthe
defendant was addressed outside any judicial district of the United
States.
(6) When the plaintifffiles a waiver ofservice with the court, the
action shall proceed, except as provided in paragraph (5) of this
subsection, as if a summons and complaint had been served at the
time offiling the waiver, and no proofof service shall be required.
(7) The costs to be imposed on a defendant under paragraph (4) of
this subsection forfailure to complywith a request to waive service of
summons shall include the costs subsequently incurred in effecting
service, togetherwith the costs, including a reasonable attorney's fee,
of any motion required to collect the costs of service.
—
(e) Summons Personal service. Except for cases in which the
defendant has waived service, the summons and complaint shall be
served together. The plaintiff shall furnish the clerk ofthe court with
such copies as are necessary. Service shall be made by delivering a copy
ofthe summons attached to a copy ofthe complaint as follows:
(1) Ifthe action is against a corporation incorporated or domesti-
cated under the laws ofthis state or a foreign corporation authorized
6 2012 Supp.