Beauparlant v. Aiken

• Decision Date: 25 January 2022
• Docket Number: A21A1255
• Citation: 362 Ga.App. 341,868 S.E.2d 482
• Parties: BEAUPARLANT v. AIKEN et al.
• Court: Georgia Court of Appeals

362 Ga.App. 341

868 S.E.2d 482

BEAUPARLANT

v.AIKEN et al.

A21A1255

Court of Appeals of Georgia.

January 25, 2022

Colin Andrew Barron, Norcross, for Appellant.

Kimberly Cofer Butler, Kristin Anne Massee, for Appellee.

Pipkin, Judge.

The trial court granted a motion to dismiss filed by Appellee Tara Freyermuth Aiken after concluding that Appellant Deborah Beauparlant filed her complaint shortly before the expiration of the statute of limitation but that she thereafter failed to use reasonable diligence to perfect service after the limitation period had run.¹ We agree with Appellant that the trial court failed to properly consider the various orders issued as part of the Statewide Judicial Emergency and, consequently, erroneously calculated the applicable statute of limitation. Accordingly, we reverse the judgment of the trial court.

While the grant of a motion to dismiss for untimely service is generally reviewed for abuse of discretion, see, e.g., Baxley v. Baldwin , 279 Ga. App. 480, 482 (3), 631 S.E.2d 506 (2006), this appeal requires us to review the undisputed facts to determine the applicable statute of limitation; this is a question of law that we review de novo. See Harrison v. McAfee , 338 Ga. App. 393, 395 (2), 788 S.E.2d 872 (2016).

On June 11, 2018, Appellant was driving through a private parking lot in Pooler, Georgia, when she collided with a vehicle driven by Appellee; Appellant claims that, as a result of the collision, she "sustain[ed] multiple injuries to her body, requiring extensive and subsequent medical treatment." Appellant filed the instant action on June 2, 2020, and served Appellee with the complaint on August 9, 2020.

On October 8, 2020, Appellee answered and moved to dismiss,² arguing that Appellant failed "to timely serve [Appellee] within the applicable statute of limitation." In her supporting brief, Appellee averred that the complaint was filed just days before the expiration of the statute of limitation but that Appellant failed to exercise due diligence in perfecting service after the limitation period had run; according to Appellee, Appellant was guilty of laches and the complaint was due to be dismissed. Appellee also argued that Appellant's action was not saved by the various tolling provisions included in the orders issued by the Chief Justice of the Georgia Supreme Court as part of the Statewide Judicial Emergency. In response, Appellant argued that the applicable statute of limitation had, in fact, been tolled and that, even if it had not, she had acted in a reasonably diligent manner in attempting to serve Appellee; Appellant also asserted that Appellee's motion to dismiss was frivolous and moved the trial court to award attorney fees under OCGA § 51-7-81. The trial court adopted Appellee's position and granted the motion,³ giving rise to this appeal.

Generally speaking, "actions for injuries to the person shall be brought within two years after the right of action accrues." OCGA § 9-3-33. However, "the mere filing of a complaint does not commence a suit; instead, the plaintiff must file the complaint and effect proper timely service as required by law." Crane v. Lazaro , 281 Ga App. 127, 128 (1), 635 S.E.2d 319 (2006). The question here is whether Appellant filed and served her complaint within the applicable statute of limitation.

The statute of limitations in this case would have expired on June 11, 2020. However, on March 14, 2020 – before the expiration of the relevant statute of limitation and before Appellant filed her action – the Chief Justice of the Georgia Supreme Court issued an Order Declaring a Statewide Judicial Emergency as a consequence of "the continued transmission of Coronavirus/COVID-19 throughout the State and the potential infection of those who work in or are required to appear in our courts." As we have explained before, that first

emergency order suspended or tolled, during the period of [that] order, "any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any ... statute of limitation." The emergency order subsequently [was] extended several times. In his third emergency order issued on June 12, 2020, the Chief Justice reimposed deadlines imposed on litigants by statutes, rules, regulations, and court orders [effective July 14, 2020,] with certain exceptions and conditions , including that "[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run , shall be

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