Allen v. Kahn

• Citation: 499 S.E.2d 164,231 Ga. App. 438
• Decision Date: 20 March 1998
• Docket Number: No. A97A2184.,A97A2184.
• Parties: ALLEN et al. v. KAHN et al.
• Court: United States Court of Appeals (Georgia)

499 S.E.2d 164

231 Ga. App. 438

ALLEN et al. v. KAHN et al.

No. A97A2184.

Court of Appeals of Georgia.

March 20, 1998.

Certiorari Denied June 26, 1998.

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, Forsyth, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., Atlanta, for appellees.

BLACKBURN, Judge.

Plaintiffs appeal the trial court's grant of defendants' motions to dismiss their claim due to improper service and process. For the reasons discussed below, we reverse.

Following an automobile accident on December 14, 1993, Marla Beth Shadburn was treated at Southern Regional Medical Center for her injuries. It is undisputed that plaintiffs subsequently filed a medical malpractice claim with regard to Shadburn's treatment against Southern Regional, Dr. William C. Land, Jr., Dr. Imtiaz A. Khan, Dr. Majed Zakaria, and Dr. Willie Cochran, Jr., on December 8, 1995, six days prior to the running of the statute of limitation on the claim. On December 11, 1995, plaintiffs attempted to serve the defendants by leaving process with Mary Wakem, a receptionist at Southern Regional. Each of the defendants subsequently filed a motion to dismiss based on insufficiency of service and process, contending that Wakem was not authorized to accept service for any of the defendants. Plaintiffs then had the defendants served again outside the statute of limitation. On the second service, Dr. Zakaria was personally served in the original action on March 19, 1996, Dr. Cochran was personally served on March 14, 1996, and Dr. Land was personally served on April 2, 1996. Substituted service was made on Dr. Kahn at his most notorious place of abode through delivery of process to his roommate on March 18, 1996, and Southern Regional was served through its registered agent on March 15, 1996. The validity of the second service was never disputed.

The trial court had not ruled on or held a hearing on defendants' motion to dismiss, as of April 3, 1996, when plaintiffs voluntarily dismissed their original action. Relying on the renewal statute, OCGA § 9-2-61, plaintiffs filed a second action on August 23, 1996. All defendants were served in the renewal action within the six-month renewal period.

The issue before us is whether the renewal statute was available to the plaintiffs in this case, where the defendants were not legally served until after the expiration of the statute of limitation, but plaintiffs dismissed their complaint before the original trial court ruled on the reasonableness of such service.

Our Supreme Court has squarely addressed this issue, and we are required to follow its holding. See Hobbs v. Arthur, 264 Ga. 359, 444 S.E.2d 322 (1994). It has held that the renewal statute remains available to a plaintiff where, as here, the original action is filed prior to the running of the statute of limitation and proper service is not perfected on a defendant until after the expiration of such statute, provided that the plaintiff voluntarily dismisses the original action before the trial court rules that the case should be dismissed for lack of diligence in perfecting service, in which case the original action becomes void. Id. at 360, 444 S.E.2d 322. In Hobbs, two different suits were found to be subject to the renewal statute, and in both of them, service was not attempted until after the statute of limitation had run. In such a case, where the issue is the reasonableness of the service on defendant, outside the statute of limitation, of a timely-filed action, the original action is not void, but is merely voidable and, therefore, subject to renewal. Our Supreme Court has held that such issue cannot be raised in the renewal action. "[A]ny delay in service in a valid first action is not available as an affirmative defense in the renewal action." Id. at 360-361, 444 S.E.2d 322.

It is a different circumstance where the issue is the authority of the person served to receive service, or other failures to follow statutory requirements as to service. Such circumstances address the validity of the service, rather than its reasonableness, as addressed in Hobbs. In such a situation, the fact that there has been one invalid service on the defendants does not necessarily preclude a subsequent, valid service, outside the statute of limitation, which relates back to the timely-filed complaint.

The courts generally apply a diligence standard to plaintiffs who timely file their complaints but serve the defendants after the statute of limitation has run to determine whether late service relates back to the date of filing. See Morse v. Flint River Community Hosp., 215 Ga.App. 224, 450 S.E.2d 253 (1994).

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga.App. 778, 216 S.E.2d 360 (1975); McCane v. Sowinski, 143 Ga.App. 724, 240 S.E.2d 132 (1977); OCGA § 9-11-4.

In Dinkins v. Dependable Courier Svc., the case consolidated with Hobbs, supra, the "[p]laintiff ... dismissed [her] first personal injury action against defendant ... after the latter filed a motion [to dismiss] asserting the affirmative defense [ ] of improper service, but prior to a ruling on the motion. Although service had been perfected, it had been accomplished long after the expiration of the statute of limitation. [Plaintiff] timely refiled [her] suit under OCGA § 9-2-61(a) and served [defendant]." Id. at 361, 444 S.E.2d 322. Our Supreme Court held that the trial court properly denied defendant's motion for summary judgment which was premised on laches and the expiration of the statute of limitation defenses with respect to the original action. Id. at 362, 444 S.E.2d 322.

The Supreme Court specifically precluded consideration of the issue of the reasonableness of the service in the original action in the renewal action. It limits consideration of the reasonableness of service to that obtained in the renewal action. Hobbs, does not however, preclude consideration of the failure to properly serve a person authorized to receive service in either the original or the renewal action, unless waived by the party entitled to assert such defense.

The fact that the plaintiff dismisses its action prior to the trial court's ruling on a defendant's motion to dismiss for failure to serve one authorized to receive service in the original action, does not preclude such defendant from raising this issue in the renewal action. If such failure is shown, there was no valid service in the original action and it was void, not merely voidable, and the renewal action should be dismissed.

In the present case, the defendants mistakenly contend that, since they were not properly served in the original malpractice action until the statute of limitation had expired, the original action is invalid and not subject to renewal. Defendants rely on Brooks v. Young, 220 Ga.App. 47, 467 S.E.2d 230 (1996); Ludi v. Van Metre, 221 Ga.App. 479, 471 S.E.2d 913 (1996); and Driver v. Nunnallee, 226 Ga.App. 563, 487 S.E.2d 122 (1997) as authority for their position.

In summary, in Brooks, the minor defendant Brooks was served within the statute of limitation by plaintiff Young, but her minority was not recognized, and her parents were not served, there being no guardian. The following sequence of events then occurred: Brooks attained majority; the statute of limitation expired; Brooks filed a motion to dismiss based on the invalid service upon her as a minor; Young re-served Brooks as an adult; prior to the court ruling on defendant's motion to dismiss, Young voluntarily dismissed the action; Young then refiled the action under the renewal statute and served Brooks; Brooks refiled her motion to dismiss which the trial court denied; and on Brooks' appeal, this Court reversed the trial court's ruling. This Court held: "No valid prior suit existed that Young could renew, because service was not perfected on Brooks within the applicable statute of limitation." (Emphasis supplied.)

In the Brooks opinion however, this Court ignored the second valid service on December 19, 1994 after the defendant had attained adulthood on March 14, 1994. The statute of limitation expired on November 13, 1994, approximately one month prior to the second service. Then, on January 18, 1995, the plaintiff dismissed the action prior to any ruling on service in the original action and refiled pursuant to the renewal statute on January 27, 1995. On these facts, Brooks incorrectly held that the plaintiff's original action was void and not subject to renewal. Brooks states, in part, "[a]lthough Brooks was served the second time on December 19, 1994, after she reached majority, this service fell outside the limitation period." Id. However, Georgia law does not require that service be perfected within the statute of limitation on a timely-filed action. See OCGA § 9-11-4; Childs v. Catlin, supra; McCane v. Sowinski, supra.

Brooks therefore clearly involved the issue of the timeliness of the second service in the original action. Such issue could not be raised in the renewal action under our Supreme Court's holding in Hobbs. This is clear from the quotation from Hobbs contained in Brooks. The Brooks court stated "the focus of Hobbs [is] diligence in serving a renewed complaint. The Supreme Court stated in that case that diligence in a renewal action must be measured from the time of filing the renewed suit and added that delay in service in a valid first action is not available as an affirmative defense in the renewal action." (Punctuation omitted; emphasis supplied.) Brooks, supra. While diligence in serving a renewed complaint was certainly integral to the holding in Brooks, it was no more so than that case's pivotal distinction between void and voidable cases with...