Devoe v. Callis, A93A1964

• Decision Date: 11 February 1994
• Docket Number: No. A93A1964,A93A1964
• Parties: DEVOE v. CALLIS.
• Court: Georgia Court of Appeals

Page 765

442 S.E.2d 765

212 Ga.App. 618

DEVOE v. CALLIS.

No. A93A1964.

Court of Appeals of Georgia.

Feb. 11, 1994.

Reconsideration Dismissed March 8, 1994.

Reconsideration Denied March 29, 1994.

Henley & Associates, Fredrick J. Henley, Jr., Atlanta, for appellant.

Sharon Ware & Associates, Lynn D. Heath, Tucker, for appellee.

SMITH, Judge.

This personal injury action arises out of a collision between a car driven by plaintiff Devoe and a parked vehicle owned by defendant Callis. The collision occurred on January 30, 1990. This action was filed on January 29, 1992, one day before expiration of the relevant statute of limitation. See OCGA § 9-3-33. While no return of service appears on the record, Callis states by affidavit that he was served on April 20, 1992, eighty-one days after the statute of limitation expired. The trial court granted Callis's motion for summary judgment on the basis of Devoe's failure to act diligently to locate and serve Callis after expiration of the statute of limitation, and Devoe appeals.

1. "OCGA § 9-11-4(c) provides in pertinent part: 'When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.' This proviso applies as well to service made outside the state pursuant to the Long Arm Statute. In any case, the correct test (is) whether the plaintiff showed 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 ... the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches.... The plaintiff has the burden of showing lack of fault. Ordinarily, 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 limitations is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse." (Citations and punctuation omitted.) Hossain v. Tohme, 205 Ga.App. 538, 539-540(1), 423 S.E.2d 4 (1992).

Under the facts of this case, Devoe has not demonstrated that she exercised due diligence as a matter of law. In June 1991, approximately eight months before Devoe filed this action, Callis moved to Morristown, Tennessee because of a job change. There is no indication from the record that he moved to conceal himself or to avoid service. The burden is on the plaintiff to ascertain a defendant's residence, and that obligation does not arise only upon expiration of the statute of limitation. See Walker v. Hoover, 191 Ga.App. 859, 861, 383 S.E.2d 208 (1989). Although Devoe's counsel states by affidavit that he was retained only a short time before the statute of limitation expired and could not verify Callis's address before filing this action, the record shows no further steps by Devoe to verify Callis's address until March 3, 1992, when Devoe retained a private investigator. ¹ Even after a "non-est" return was entered by the Fulton County Marshal on February 12, 1992, indicating that Callis could not be located, the record shows no action for 20 days. Once a plaintiff is put on notice of a problem with service, she is required to exercise " 'the greatest possible diligence to ensure proper and timely service.' [Cit.]" Walker v. Hoover, supra, 191 Ga.App. at 861, 383 S.E.2d 208. After the private investigator discovered that Callis had moved, there was an additional delay of nine days before Devoe contacted a process server. The record shows no contact between Devoe and the process server from counsel's letter of March 25 until a telephone call on April 16, 1992. Callis ultimately was served on April 20, 1992, four days later.

Although Devoe's counsel contends that "correspondence and other means of communication, phone calls, etc. were initiated by my staff in a reasonable and diligent effort to locate this defendant," Devoe does not identify the individuals involved or " 'give specific dates or details reflecting a diligent attempt to locate [Callis].' [Cit.]" Cason v. Williams, 207 Ga.App. 550, 552, 428 S.E.2d 444 (1993). Since the burden is on Devoe to show reasonable diligence, she cannot simply state in conclusory fashion that reasonable and diligent efforts were made. Id.

Eighty-one days elapsed between...