Alexander v. Searcy

• Decision Date: 04 June 1992
• Docket Number: No. A92A0563,A92A0563
• Citation: 419 S.E.2d 738,204 Ga.App. 454
• Parties: ALEXANDER v. SEARCY.
• Court: Georgia Court of Appeals

Page 738

419 S.E.2d 738

204 Ga.App. 454

ALEXANDER v. SEARCY.

No. A92A0563.

Court of Appeals of Georgia.

June 4, 1992.

Simpson & Gray, Joseph I. Carter, Tifton, for appellant.

Hege & Associates, David R. Hege, Tifton, Sam J. Gardner, Jr., Moultrie, for appellee.

SOGNIER, Chief Judge.

Danny Lee Searcy filed suit on December 15, 1989 in Tift County against James Alexander, seeking damages for injuries arising out of an automobile accident that occurred on December 18, 1987. Alexander did not file an answer but instead made a special appearance on November 12, 1990 and moved the trial court to dismiss Searcy's complaint for insufficiency of service of process. Alexander submitted an affidavit with his motion in which he averred that he resides in Colquitt County and that he has been employed as the minister of a Colquitt County church since the date of the accident. The trial court denied Alexander's motion to dismiss and certified that its order was subject to immediate review pursuant to OCGA § 5-6-34(b). We thereafter granted Alexander's application for interlocutory review. Id.

At the hearing on appellant's motion to dismiss, counsel for appellant pointed out to the trial court that the sheriff's entry of service reflected appellant's work address at his church in Moultrie (Colquitt County), that appellant had not been served as of the date of the hearing (held over two months after the motion to dismiss had been filed), and that appellee had known appellant's correct address of employment for 353 days without serving him. Counsel for appellee responded that "the facts stated [by appellant's counsel] are correct," and acknowledged that "[i]t would have been easy to file [the complaint] in Colquitt County and serve [appellant], I was receiving notice that he'd moved [from Tift County] but I didn't do it." The reason proffered by appellee's counsel was that he was "lulled" by on-going negotiations with appellant's automobile insurance carrier into believing appellee's claim would be settled without going to trial. The record uncontrovertedly shows that no evidence of fraud was adduced by appellee in regard to the representations made by appellant's insurer. Instead, the specific examples given by appellee's counsel all involved requests by appellant's insurer that appellee provide it with certain additional medical documentation of his injuries; none of the conversations related by appellee's counsel to the court included express representations by appellant's insurer that appellant had waived service. Appellee's counsel stated that the last conference he had with appellant's insurer occurred after the complaint was filed but before appellant filed his motion to dismiss. The record reflects that appellee moved to transfer the case to the county of appellant's residence, Colquitt County, on December 17, 1990, the date of the hearing.

Appellant contends the trial court abused its discretion by finding that appellee "acted in a reasonable and diligent manner to [e]nsure process as quickly as possible, any delay in service of process by [appellee] upon [appellant] was excusable, and [appellant] was not prejudiced by any delay in service of process." "Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute 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. 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." (Punctuation and citations omitted.) Brown v. Bailey, 180 Ga.App. 555, 557(1), 349 S.E.2d 792 (1986).

The evidence before the trial court demonstrated that appellee took no steps whatsoever to perfect service on appellant after the running of the statute of limitation even though appellee uncontrovertedly knew where appellant could be personally served. There is no question that appellant personally did not waive service, such as by filing an answer or making a general appearance. See generally Bigley v. Lawrence, 149 Ga.App. 249, 250, 253 S.E.2d 870 (1979). Thus, we must determine whether the trial court abused its discretion by concluding that appellee's failure to have process served on appellant was excused by appellee's reliance on the conduct of appellant's insurance company in representing to appellee's counsel or otherwise inducing his counsel into believing that appellee's claim would be settled without suit. We do not agree with the trial court that this constituted a reasonable excuse as a matter of law.

It is uncontroverted that appellant's automobile liability insurance carrier was not a party to the personal injury suit filed by appellee. Thus, the case sub judice is not analogous to the situations in cases such as Brown v. Nationwide...