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Parker v. Shreve6/7/2000
BA-013
Eileen Parker appeals the trial court's determination that her personal injury action was barred by the statute of limitations due to her lack of diligence in serving the complaint. For the reasons that follow, we reverse.
Parker filed a complaint against Helena Shreve on September 22, 1998, alleging she sustained personal injuries in automobile collision between the parties on November 7, 1996. The address Parker provided for service on Shreve was listed in the accident report and in the local telephone directory for that year, but on October 6, 1998, the marshal called Parker's counsel to say that Shreve was not at the address listed. The return of service indicated that, in July 1998, a new tenant had moved into the address listed for Shreve.
Using in-house sources, Parker sought a better address for Shreve to no avail, then hired a private investigator on November 5, 1998. On November 6, the investigator called with Shreve's new address on Ivy Court in Fulton County, and Parker filed a revised summons with the new address the same day. On Friday, November 13, 1998, a Fulton County marshal called Parker to say that Ivy Court was in DeKalb County.
Parker called the private investigator on Monday, November 16. The investigator was convinced the address was in Fulton, but agreed to check it again. The investigator called back the next day to explain that the street address was Ivy Chase, not Ivy Court, and that Ivy Chase was in Fulton County. Parker immediately called the Fulton County marshal's office with the correct street name and Shreve was served on November 19, 1998, 12 days after the statute of limitation expired.
Shreve moved to dismiss the action on the ground that no valid complaint existed because she was not served within the two-year statute of limitations. The trial court granted the motion and dismissed the complaint, finding that Parker
failed to exercise due diligence in getting the Defendant served as soon as reasonable. As a result, the plaintiff is guilty of laches, and the service will not relate back to the time of the filing of the Complaint for the purpose of tolling the statute of limitation.
We review for abuse of discretion the trial court's decision regarding whether or not the plaintiff was diligent in attempting service. Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986). If the trial court abuses that discretion, we must reverse its action. Jackson v. Nguyen, 225 Ga. App. 599, 601 (484 SE2d 337) (1997); Scoggins v. State Farm Mutual Automobile Ins. Co., 156 Ga. App. 408, 410-411 (274 SE2d 775) (1980).
When a complaint is filed within the applicable statute of limitations but service is perfected more than five days after the statute expires, the service relates back to the original filing only if the plaintiff shows "that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible." Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975).
Many cases cite the proposition that a finding of laches on plaintiff's part justifies dismissal when service is made after the statute of limitation expires, beginning with Hilton v. Maddox, Bishop &c;Inc., 125 Ga. App. 423 (188 SE2d 167) (1972). In considering whether service related back to the filing of the complaint when it was perfected more than two years and eight months after the complaint was filed, and more than eight months after the statute of limitation ran, the court in Hilton asked:
Then what effect does a belated service have, particularly where the delay is great, as here? It is laches, authorizing the c
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