 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lee v. Kim10/17/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
In this personal-injury action filed two days before the applicable statute of limitation was to run, plaintiff Won Suk Lee appeals the dismissal of his complaint where the only basis for the court's ruling was that the sheriff's office did not serve the complaint and summons until thirteen days after the complaint was filed. We agree with Lee that such alone did not show laches on his part; therefore, we reverse the judgment.
Lee sued Don Kim for injuries arising out of Kim's dog's biting Lee on March 10, 2003. Lee filed the suit in Gwinnett County on March 8, 2005, two days before the two-year statute of limitation was to run. See OCGA § 9-3-33. Both in the complaint and in the return of service form given the sheriff, Lee correctly listed Kim's address in Gwinnett County. Though the sheriff's office received the service papers on March 9, a deputy did not serve the summons and complaint until March 21, 13 days after the complaint was filed and 11 days after the statute of limitation had run.
Kim moved to dismiss the complaint on the ground that to relate back to the date of filing for statute-of-limitation purposes, the complaint had to be served on Kim within five days of filing. Cf. OCGA § 9-11-4 (c). The trial court agreed, finding that service 13 days after the filing of the complaint and 11 days after the running of the statute of limitation constituted laches on the part of Lee. Lee appeals the dismissal order.
Jackson v. Nguyen sets forth the relevant principles of law: The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse.
(Citations and punctuation omitted.)
Finding an abuse of discretion, Jackson reversed a dismissal order under facts virtually identical to those of the case at bar. Filing his personal-injury action five days before the running of the two-year statute of limitation, the Jackson plaintiff supplied the sheriff's office with the correct address of the defendant with the filing of the complaint. Id. at 599. The sheriff did not serve the papers until twenty-two days later, or seventeen days after expiration of the two- year statute of limitation. Id. Quoting Bennett v. Matt Gay Chevrolet Oldsmobile, Jackson held that " plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers." (Punctuation omitted.) Id. at 600. Jackson explained: "As in Bennett, supra at 350 (1), plaintiffs provided the sheriff's office with the proper address of defendant for service of process on the date the complaint was timely filed. Thus, the record affirmatively shows the plaintiffs did all that was initially required of them." (Punctuation omitted.
Page 1 2 3 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|