Harris v. Johns, No. A05A0445.

• Decision Date: 18 April 2005
• Docket Number: No. A05A0445.
• Citation: 618 S.E.2d 1,274 Ga. App. 553
• Parties: HARRIS v. JOHNS.
• Court: Georgia Court of Appeals

274 Ga. App. 553

Page 1

618 S.E.2d 1

HARRIS v. JOHNS.

No. A05A0445.

Court of Appeals of Georgia.

April 18, 2005.

Reconsideration Denied July 22, 2005.

Deming, Parker, Hoffman, Green & Campbell, Covington, James R. Green, Jr., Norcross, Beverly R. Adams, Alpharette, Catherine C. Semler, for appellant.

Robert W. Browning, Gilliland, Ratz & Browning, Atlanta, for appellee.

ADAMS, Judge.

On March 5, 2004, plaintiff Charles E. Harris filed a complaint against Jeremy Johns and others seeking to recover for personal injuries he allegedly received in an automobile accident that occurred on March 14, 2002. Johns was not served with the complaint until April 30, 2004. He subsequently filed a motion to dismiss or, in the alternative, motion for summary judgment based upon Harris's failure to serve him within the statute of limitation. The trial court granted summary judgment to Johns, and this appeal followed.

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.

Carmody v. Hill, 248 Ga.App. 437, 437-438, 546 S.E.2d 545 (2001).

The record shows the following facts pertinent to this appeal: Johns was a long distance truck driver, a fact that was known to Harris at the time of the accident. Johns was a resident of Tennessee, and his home address was in Lawrence County Tennessee. This address was known to Harris at the time of the accident and at the time the complaint was filed.

The Lawrence County Sheriff's Department received the summons, complaint and discovery requests from Harris's counsel on March 12, 2004, just two days prior to the expiration of the statute of limitation. Plaintiff's counsel contacted the sheriff's office on March 19 and March 26 and was informed that service had been attempted but not made. Johns filed an answer on April 6, 2004, before he was served, raising the defenses of, inter alia, insufficiency of service of process and asserting that the complaint was barred by the running of the statute of limitation. On April 8, Harris's attorney initiated another inquiry into the status of service. According to her affidavit, at some point subsequent to this inquiry she also asked a paralegal to contact the sheriff's office and request that the documents be returned so that a private process service could be used. However, there is nothing to indicate that this contact was in fact made, and on April 30, 2004, Johns was served by a Tennessee sheriff's deputy.

Where the plaintiff files an action within the period of limitation, but does not serve the action within five days or within the period of limitation, as in this case, "(the) 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." Once the plaintiff becomes aware of a problem with service, however, his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.

(Citations, punctuation and footnote omitted.) Carmody v. Hill, 248 Ga.App. at 438, 546 S.E.2d 545.

In granting summary judgment to Johns, the trial court found that Harris first became aware of a problem with service on March 19, when his attorney learned the deputies had been unsuccessful in serving Johns. Harris contends this was error, and the trial court should have applied the heightened "greatest possible diligence" standard only from the time Johns filed his answer raising a problem with service. Although numerous opinions have agreed with Judge Pope's special concurrence in Wade v. Whalen, 232 Ga.App. 765, 772-773, 504 S.E.2d 456 (1998) (Pope, J., concurring specially) (physical precedent only) that the greatest possible diligence standard should be applied only from the point a defendant has raised a service defense, e.g., Feinour v. Ricker Co., 269 Ga.App. 508, 510, 604 S.E.2d 588 (2004); Ingraham v. Marr, 246 Ga.App. 445, 447, 540 S.E.2d 652 (2000); Davis v. Bushnell, 245 Ga.App. 221, 537 S.E.2d 477 (2000); Parker v. Shreve, 244 Ga.App. 350, 352, 535 S.E.2d 332 (2000), this Court has also found that other circumstances may provide the requisite notice to plaintiff of a...