Patterson v. Johnson, A97A0208

• Citation: 226 Ga.App. 396,486 S.E.2d 660
• Decision Date: 09 May 1997
• Docket Number: No. A97A0208,A97A0208
• Parties: , 97 FCDR 1932 PATTERSON v. JOHNSON et al.
• Court: United States Court of Appeals (Georgia)

Page 660

486 S.E.2d 660

226 Ga.App. 396, 97 FCDR 1932

PATTERSON v. JOHNSON et al.

No. A97A0208.

Court of Appeals of Georgia.

May 9, 1997.

Certiorari Denied Oct. 10, 1997.

Sharon W. Ware & Associates, Reynolds E. Pitts, Jr., Atlanta, for appellant.

Erck, Dever & Merlin, Hayes M. Dever, Atlanta, Douglas M. Robinson, Athens, for appellees.

BIRDSONG, Presiding Judge.

Following the grant of an interlocutory appeal, John West Patterson appeals the denial of his motion to dismiss the complaint of Karen L. Johnson and Lorenzo L. Johnson because of lack of service of process and laches. He contends the trial court erred by applying a due diligence standard rather than the greatest possible diligence standard when considering whether the Johnsons had perfected service and also abused its discretion in not dismissing the complaint against him.

On March 1, 1994, the Johnsons were involved in a motor vehicle collision with a vehicle driven by Patterson but owned by Thomas Dragoone. Patterson's driver's license, which he presented to the police officer investigating the collision, showed the same address as Dragoone's. When the Johnsons filed suit against both Dragoone and Patterson on August 18, 1995, service was attempted on both at Dragoone's residence with Dragoone's wife receiving the service.

Patterson answered the complaint on September 18, 1995, and asserted insufficient service of process as a defense. On November 22, 1995, Patterson responded to discovery from the Johnsons seeking the basis for his assertion of that defense by stating that he did not reside at the Dragoone's house when service was attempted. In the same discovery response he provided his current and correct address.

On March 22, 1996, Patterson moved to dismiss the action, or in the alternative for summary judgment, asserting that the Johnsons' claim was now barred by the statute of limitation because service was never perfected upon him. Subsequently, on April 13, 1996, 44 days after the statute of limitation expired on March 1, 1996, the Johnsons served Patterson with process.

In response to this motion, the Johnsons contended that they had exercised reasonable diligence in perfecting service upon Patterson because they attempted to serve him at the address he gave the investigating officer at the time of the collision and because they were not able to depose Patterson before the period of limitation expired. After finding that the Johnsons "acted reasonably and diligently in effecting service of process" upon Patterson, the trial court denied the motion to dismiss.

Later, Dragoone was granted summary judgment because the trial court found that the family purpose doctrine was inapplicable. He is not a party to this appeal. Held:

"Where service is made, as here, after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute, but only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible. The plaintiff also has the burden of showing lack of fault. Slater v. Blount, 200 Ga.App. 470, 472, 408 S.E.2d 433 (1991)." Sykes v. Springer, etc., 220 Ga.App. 388, 389, 469 S.E.2d 472. "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...