Duffy v. Lyles, A06A1377.

• Decision Date: 30 August 2006
• Docket Number: No. A06A1377.,A06A1377.
• Citation: 636 S.E.2d 91,281 Ga. App. 377
• Parties: DUFFY et al. v. LYLES.
• Court: Georgia Court of Appeals

281 Ga. App. 377

636 S.E.2d 91

DUFFY et al. v. LYLES.

No. A06A1377.

Court of Appeals of Georgia.

August 30, 2006.

Matthew G. Moffett, Wayne S. Melnick, Gray, Rust, St. Armand Moffett & Brieske, Atlanta, for appellants.

Charles H. Richards, Jr., Richards & Dalton, Atlanta, for appellee.

MILLER, Judge.

Raquell Lyles sued Christopher and Michelle Duffy for personal injuries arising out of a November 20, 2001 automobile collision. The Duffys appeal the trial court's order denying their motion to dismiss Lyles' complaint. Since the record shows that Lyles failed to carry her burden of demonstrating that she exercised reasonable diligence in perfecting service on the Duffys, we reverse.

Lyles filed her complaint on November 5, 2003, only fourteen days prior to the expiration of the two-year statute of limitation. OCGA § 9-3-33. A Fulton County marshal attempted service of the complaint on November 17, 2003, but was unsuccessful because the Duffys had moved from Fulton County to Cobb County. The Duffys were finally served with the complaint on May 11, 2004, approximately six months after the expiration of the statute of limitation. OCGA § 9-3-33.

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.

(Citation omitted; emphasis in original.) Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 903(5), 627 S.E.2d 821 (2006).

Once a plaintiff receives notice of a problem with service of the complaint, some cases hold that the plaintiff must exercise not only reasonable diligence, but the "greatest possible diligence" in perfecting service. See Carter v. McKnight, 260 Ga.App. 105, 107(2), 578 S.E.2d 901 (2003) (greatest possible diligence required after unsuccessful service attempt alerted plaintiffs to a service problem); Carmody v. Hill, 248 Ga.App. 437, 438, 546 S.E.2d 545 (2001) (greatest possible diligence required from time plaintiff became aware of a problem with the address given to the sheriff); Sykes v. Springer, 220 Ga.App. 388, 390(2), 469 S.E.2d 472 (1996) (greatest possible diligence required from the time plaintiff received notice from the sheriff's department of a problem with service). Other cases have found that the "greatest possible diligence" standard should only be required where the defense has raised service as a defense. See Feinour v. Ricker Co., 269 Ga.App. 508, 510, 604 S.E.2d 588 (2004). We need not resolve this conflict here, however, because the record fails to show that Lyles exercised either reasonable diligence or the greatest possible diligence in attempting service.

The plaintiff has the burden of showing diligence in attempting to effect service, which must be supported by specific dates and details. Zeigler v. Hambrick, 257 Ga.App. 356, 357(2), 571 S.E.2d 418 (2002). "Since the burden is on [Lyles] to show reasonable diligence, she cannot simply state in conclusory fashion that reasonable and diligent efforts were made." Devoe v. Callis, 212 Ga.App. 618, 620(1), 442 S.E.2d 765 (1994). Regardless of whether Lyles' counsel informed her of her obligation to timely perfect service, this Court is required to strictly apply the service requirements "because notice is the very bedrock of due process." (Citation omitted.) McRae v. White, 269 Ga.App. 455, 458, 604 S.E.2d 291 (2004); see also Robinette v. Johnston, 637 F.Supp. 922 (M.D.Ga.1986) (being unaware of importance of service of process is not an adequate justification for delay).

Lyles argues that she acted in a diligent manner to serve the Duffys, but the record does not support this assertion. "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." (Citation omitted.) Devoe, supra, 212 Ga.App. at 619(1), 442 S.E.2d 765. Lyles contends that after the Fulton County marshal was unable to effect service, she attempted to ascertain the Duffys' forwarding address through the United States Postal Service. This contention is not supported in the record by affidavit or documentary evidence, nor did Lyles provide the trial court with "any specific dates or describe the nature of the investigatory effort, or otherwise [provide] any factual detail which would show a diligent attempt to locate the [Duffys]." Early v. Orr, 135 Ga.App. 887, 888, 219 S.E.2d 622 (1975).

Lyles further contends that after her attempts to locate the Duffys through the Postal Service were unsuccessful, she hired a private company to perform a "skip trace" to locate them. However, Lyles failed to provide the trial...