Lawrence v. Noltimier

• Decision Date: 23 June 1994
• Docket Number: No. A94A0635,A94A0635
• Citation: 213 Ga.App. 628,445 S.E.2d 378
• Parties: LAWRENCE v. NOLTIMIER.
• Court: Georgia Court of Appeals

Page 378

445 S.E.2d 378

213 Ga.App. 628

LAWRENCE v. NOLTIMIER.

No. A94A0635.

Court of Appeals of Georgia.

June 23, 1994.

J.L. Jordan, College Park, for appellant.

Fain, Major & Wiley, Thomas E. Brennan, Atlanta, for appellee.

SMITH, Judge.

Hazel Lawrence filed a personal injury action against Laurie Bonta Noltimier and another on October 21, 1992, for injuries sustained as the result of a traffic collision that occurred on October 22, 1990. The applicable statute of limitation is two years. OCGA § 9-3-33. Noltimier was not served until April 6, 1993, 166 days after the statute of limitation had expired. The trial court granted Noltimier's motion for summary judgment (with supporting affidavit), which relied solely on the applicability of OCGA § 9-3-33, and Lawrence appeals.

"The mere filing of a petition is not the commencement of a suit unless timely service is perfected as required by law and the named defendant is duly brought into court; and the mere filing of a suit will not of itself toll the statute of limitations in a case. The principle of law controlling our decision in this case is well-settled: Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that [s]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 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 [s]he were, of course [s]he would be barred, but if [s]he acted in a reasonably diligent manner then [s]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 limitations is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse." (Citations and punctuation omitted.) Freemon v. Dubroca, 177 Ga.App. 745, 746(2), 341 S.E.2d 276 (1986).

The sole question before us is therefore whether the court's discretion was "actually abused and cannot be supported as a matter of law. [Cit.]" Varricchio v. Johnson, 188 Ga.App. 144, 146, 372 S.E.2d 455 (1988). Lawrence has failed to make this showing. Although she emphasizes that Noltimier gave an incorrect address to police at the accident scene in October 1990, she admits she did not even initiate a search for Noltimier until after "the return of no service" over two years later.

Lawrence then hired an investigative agency, which she contends "conducted a wide ranging investigation throughout the Atlanta-Metro-area ... over an extended period of time spanning November 2, 1992 through December 29, 1992," when Noltimier was finally located. Although Lawrence has presented a thorough list of activities she instructed the search firm to undertake, she does not demonstrate as a matter of law that the search firm undertook those activities with due diligence. Lawrence's counsel filed an affidavit claiming that there were eight days "especially" during this period when the search was actually conducted, but does not specify what activities were conducted on each of those dates. The mere fact that such a list was amassed proves nothing. "Due diligence requires action, not words," Traver v. McKnight, 208 Ga.App. 278, 279, 430 S.E.2d 164 (1993), and a showing of diligence naturally requires specificity in making the required showing of the actions in fact undertaken to locate the missing defendant. Lawrence's counsel states...