Georgia Code, Volume 07, 2013 Supplement

2013·21.1 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2013 Supplement
Including Acts ofthe 2013 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®
Charlottesville, Virginia
Copyright © 2007—2013
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-0-8205-7181-2
5012730
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2013 Regular Session ofthe General Assembly.
Annotations ofJudicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 29, 2013. 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 29, 2013.
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, Proof ofFacts.
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 2013 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2013 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.
—
Law reviews. 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; defining 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 and how presented
subsequenttotheoriginalcom- and heard; when defenses
plaint and other papers. waived; stay ofdiscovery.
2013 Supp.
T.9, C.ll CIVIL PRACTICE 9-11-1
Article 5 Article 8
Depositions and Discovery
Provisional and Final Remedies
Sec. and Special Proceedings
9-11-29.1. When depositions and other
discovery material must be Sec.
filed with court; custodian un- 9-11-67.1. Settlement offers and agree-
til filing; retention of deposi- ments for personal injury,
tionsandotherdiscoverymate- bodily injury, and death from
rials. motor vehicle; payment meth-
9-11-34. Production of documents and ods.
things and entry upon land for
inspection and other purposes; Article 10
applicability to nonparties;
Forms
confidentiality.
9-11-34.1. Civil actions for evidence
9-11-133. Forms meeting requirements
seized in criminal proceedings.
for civil case filing and disposi-
Article 6
tion.
Trials
9-11-44. Official records [Repealed].
—
Lawreviews. Forarticle, "Georgia's jects ofLitigation to be Brought on by the
New Evidence Code: After the Celebra- New Legislation," see 64 Mercer L. Rev. 1
tion, a Serious Review ofAnticipated Sub- (2012).
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 counsel failed to file a notice of appeal
Workers'compensation. afterbeinginstructed bythe inmate to do
O.C.G.A. § 9-ll-15(c) has not been in- so. Holland v. Martin, 281 Ga. 190, 637
corporated into the Georgia Workers' S.E.2d 23 (2006). —
Compensation Act, O.C.G.A. § 34-9-1 et In rem quiet title actions. Default
seq. McLendonv.AdvertisingThatWorks, judgment against ov^ners in a quiet title
292 Ga. App. 677, 665 S.E.2d 370 (—2008). action based on their failure to answer
Habeas corpus proceeding. Ha- was improper because, once the in rem
beas court's order denying an inmate's proceeding was instituted, the trial court
verified petition, which asserted that trial was required, pursuant to O.C.G.A.
counsel rendered ineffective assistance, § 23-3-63, to submit the matter to a spe-
w^asreversed, asthe allegations contained cial master, and a special master was
in said petition served as sufficient evi- never appointed such that service could
dence to support the inmate's claim that haveproperlybeencompletedpursuantto
2013 Supp.
9-11-1 CIVIL PRACTICE ACT 9-11-3
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
withrespectto aninrem quiettitle action would have been due; hence, the trial
against all the world, the Civil Practice court did not err in denying a wife's mo-
Act, O.C.G.A. § 9-11-1 et. seq., was inap- tionto set saidjudgmentaside. Hammack
plicable. WoodruffV. Morgan County, 284 V. Hammack, 281 Ga. 202, 635 S.E.2d 752
Ga. 651, 670 S.E.2d 415 (2008). (2006).
Civil procedure rules not adequate Cited in Ga. Pines Cmty. Serv. Bd. v.
substitute for substantive constitu- Summerlin, 282 Ga. 339, 647 S.E.2d 566
tional rights of in—personam forfei- (2007).
ture proceedings. In an in personam Courts to Which ChapterApplicable
forfeiture proceeding, pursuant to the
Racketeer Influenced and Corrupt Orga- Special master's a—ward in condem-
nizations Act, O.C.G.A. § 16-14-7(m), a nation proceeding. Trial court prop-
trial court erred by finding that the civil erly refused to dismiss a landowner's ap-
procedural rules set forth in the Georgia peal on grounds that it failed to express
Civil Practice Act, O.C.G.A. § 9-11-1 et dissatisfaction with the compensation
seq., were an adequate substitute for the awarded by the special master, as it pro-
substantive constitutional rights towhich vided the utilitywith sufficient notice un-
the property owners were entitled. As a der the Civil Practice Act, O.C.G.A.
result, the Supreme CourtofGeorgiaheld § 9-11-1 et seq., that the landowner was
that § 16-14-7(m) was unconstitutional objecting to the valuation given on the
becauseitdeprivedinpersonamforfeiture property; moreover, inlightoftheinterest
defendants of the safeguards of criminal that the utility acquired in the property,
procedure guaranteed by the United and the purposes for which it intended to
States and Georgia Constitutions. Ciscov. use that property, consequential damages
State, 285 Ga. 656, 680 S.E.2d 831 (2009—). potentially represented a significant por-
Construction with other law. tion of the compensation the landowner
Upon reading the rules within the Civil could recover. Ga. Power Co. v. Stowers,
Practice Act in para materia with Ga. 282 Ga. App. 695, 639 S.E.2d 605 (2006).
RESEARCH REFERENCES
Am. Jur. Pleading and Practice
—
Forms. 1 Am. Jur. Pleading and Prac-
tice Forms,Accord and Satisfaction, § 33.
ARTICLE
2
COMMENCEMENT OF ACTION AND SERVICE
—
Law reviews. For annual survey on
trial practice and procedure, see 61 Mer-
cer L. Rev. 363 (2009).
9-11-3. Commenceinent 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).
2013 Supp.
9-11-3 CIVIL PRACTICE 9-11-4
eJUDICIAL DECISIONS
Filing must be followed by service. Trial court did not err in dismissing an
Despite the fact that the Court ofAp- officer's claims against an entity on the
pealsofGeorgiacouldnotdiscernwhether groundthatthe claims were filed inviola-
apersonalinjuryactionfiledbyahusband tion ofan automatic bankruptcy stay pro-
and wife against a driver was dismissed vided by 11 U.S.C. § 362 because, when
because the statute oflimitation had ex- the original complaint was filed, that en-
pired or because the husband and wife titywas a debtorin bankruptcy; the auto-
were not diligent in attempting service, matic stay was in effect at the time the
action was commenced, rendering the
the trial court did not abuse its discretion
in dismissing the action because the claims against the entity void ab initio.
Odion V Varon, 312 Ga. App. 242, 718
driver had never been personally served
S.E.2d 23 (2011), cert, denied, No.
with the complaint priorto the expiration S12C0399, 2012 Ga. LEXIS 561 (Ga.
of the statute of limitation. Nyass v. 2012).
Tilahun, 281 Ga.App. 542, 636 S.E.2d 714 Failure t—o file civil case filing form
(2006). — not fatal. Putative biological father's
Timeliness of service. Trial court failure to pay a filing fee and file a civil
properly dismissed a plaintiff's personal case filing form required by O.C.G.A.
injury action filed against defendant on § 9-ll-3(b) was not fatal to the father's
insufficient service ofprocess grounds, as: legitimation claim because the clerk,
(1) plaintiffdidlittleto pursue service; (2) when asked by the father, did not require
plaintiff inappropriately shifted the bur- payment of a filing fee, and the father's
denofsaidsearchonthecourt; and(3)the attorney merely followed the procedure
factthat defendant servedinterrogatories suggested by the clerk. Brewton v. Poss,
and a request for production did not 316 Ga. App. 704, 728 S.E.2d 837 (2012)—.
amount to a waiver ofan insufficient ser- Laches finding against plaintiff.
vice of process defense. Kelley v. Lymon, In a personal injury suit, although plain-
279 Ga. App. 849, 632 S.E.2d 734 (2006). tiff passenger attempted to serve defen-
Bankruptcy trustee's late service on a dant driver only once prior to the expira-
driver did not relate back to the filing of tion of the statute of limitation, upon
the personal injury complaint where the encounteringdifficultylocatingthedriver,
trustee failed to show that the trustee the passenger's response was delayed at
reasonably and diligently insured that best, notwithstanding the imminent run-
service was made as quickly as possible ning ofthe statute oflimitation, and the
afterthe drivermadethetrustee aware of passenger did not even try to serve the
the driver's true residence. Webster v. driver until after the statute had run;
Western Express, Inc., No. 5:05-CV-350 thus, under the circumstances, the trial
(WDO), 2007 U.S. Dist. LEXIS 70011 court properly found the passenger guilty
(M.D. Ga. Sept. 21, 2007). oflaches. Pattersonv. Lopez, 279 Ga.App.
Because a plaintiff did not satisfy the 840, 632 S.E.2d 736 (2006).
plaintiff's burden of showing that the Cited in Kirkland v Tamplin, 283 Ga.
plaintiff exercised due diligence in per- App. 596, 642 S.E.2d 125 (2007); Fox v
fecting service of process on the defen- City of Gumming, 289 Ga. App. 803, 658
dant, the trial court abused the court's S.E.2d 408 (2008); Rooks v. Tenet Health
discretion in denying the defendant's mo- Sys. GB, Inc., 292 Ga. App. 477, 664
tion to dismiss. Jones v. Brown, 299 Ga. S.E.2d861 (2008); BatesvilleCasketCo.v.
App. 418, 683 S.E.2d 76 (2009). Watkins Mortuary Inc., 293 Ga.App. 854,
Action commenced as offilingdate. 668 S.E.2d 476 (2008).
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
2013 Supp.
9-11-4 CIVIL PRACTICE ACT 9-11-4
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;
(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 by the 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 ofreceiving the
summons and complaint; but failure to make service withinthe five-day
period will not invalidate a later service.
(d) Waiver of service.
(1) Adefendant who 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 subject to service underparagraph (1) or (2) ofsubsection
(e) ofthis Code section; and
2013 Supp. 5
9-11-4 CIVIL PRACTICE 9-11-4
(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 of a 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;
(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 after that date ifthe
6 2013 Supp.