Robinson v. Boyd

• Decision Date: 18 October 2010
• Docket Number: No. S10G0084.,S10G0084.
• Citation: 288 Ga. 53,10 FCDR 3330,701 S.E.2d 165
• Parties: ROBINSON et al. v. BOYD.
• Court: Georgia Supreme Court

701 S.E.2d 165
288 Ga. 53
10 FCDR 3330

ROBINSON et al.
v.
BOYD.

No. S10G0084.

Supreme Court of Georgia.

Oct. 18, 2010.

701 S.E.2d 166

Duncan & Adair, George E. Duncan, Jr., Jennifer C. Adair, Atlanta, for appellants.

William J. Mueller, Atlanta, for appellee.

NAHMIAS, Justice.

288 Ga. 53

The principal issue in this appeal is the application of our decision in Hobbs v. Arthur, 264 Ga. 359, 444 S.E.2d 322 (1994), where we held that, "inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61(a) must be measured

288 Ga. 54

from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action." 264 Ga. at 360-361, 444 S.E.2d 322. In this case, the plaintiff waited almost two years to file a complaint for personal injury and property damage arising out of a truck accident and almost five more years to serve the complaint on the defendants. Before the defendants had a chance to respond, the plaintiff voluntarily dismissed the complaint and filed a renewal action under OCGA § 9-2-61(a),¹ and the complaint in the new action was then

701 S.E.2d 167

timely served on the defendants. The defendants filed a motion for summary judgment based on the delay in service of the complaint in the original action, which the trial court granted. The Court of Appeals reversed but invited us to reconsider our decision in Hobbs in light of the lengthy delay involved in this case. Boyd v. Robinson, 299 Ga.App. 795, 683 S.E.2d 862 (2009). We granted the defendants' petition for certiorari and now affirm.

1. Viewed in the light most favorable to the plaintiff as the party opposing summary judgment, the facts are as follows. On February 22, 2000, in Gwinnett County, Georgia, Gary Robinson backed the tractor-trailer he was driving for Eckerd Corporation several times into the cab of a parked tractor-trailer that Allen Boyd, Jr., was driving. Boyd took photos of the damage with a camera provided by his employer for documenting accidents, and the police responded and filed a report. Robinson provided Boyd with the following handwritten explanation: "While try[ing] to pull into [a] parking area for trucks, as I started in, the back of [the] trailer swung around ... and caught the right side mirror, hood, [and] fender of another truck that was parked." (Punctuation supplied.) Boyd alleges that he suffered serious injuries as a result of the collision, which were worsened by a second accident on July 3, 2000, when a City of Baton Rouge police cruiser rammed into his car while he was stopped at a red light. In 2001, Boyd and his wife filed a lawsuit in Louisiana to recover for his injuries from the Baton Rouge incident, which they settled in 2003 for $300,000.

Boyd waited until February 22, 2002, the last day before the expiration of the two-year statute of limitation, to file a complaint in

288 Ga. 55

Cobb County Superior Court based on the Georgia accident, naming Robinson and Eckerd as defendants. Boyd made no attempt to serve the defendants for nearly five years. Almost seven years after the accident, and almost five years after filing, Boyd perfected service of the complaint; he then promptly filed voluntary dismissals as to each defendant pursuant to OCGA § 9-11-41(a)(1)(A). Slightly less than six months later, Boyd filed a renewal action in Fulton County Superior Court under OCGA § 9-2-61(a), which was served on Robinson and Eckerd a week later.

Robinson and Eckerd filed for summary judgment based on waiver, estoppel, and Boyd's failure to exercise due diligence in perfecting service of process in the original action. They also sought partial summary judgment to preclude Boyd from raising claims for damages or injuries resulting from or arising after the second accident because of representations he made in the Louisiana lawsuit and his alleged spoliation of evidence by failing to preserve all photographs of the Georgia accident and one deposition in the Louisiana case, as well as the unavailability of some medical records. Boyd disputed those defenses.

The trial court entered summary judgment in favor of Robinson and Eckerd, finding that "this action is barred by the doctrine of laches, as Plaintiff's five-year delay in pursuing this action has prejudiced the Defendants' ability to prepare this case and violated their due process rights." Boyd appealed. The Court of Appeals reversed, agreeing with Boyd that Hobbs controlled while at the same time urging us to overrule that decision. See Boyd, 299 Ga.App. at 796, 683 S.E.2d 862. The Court of Appeals has also held that laches could not be used to grant summary judgment in this action at law, because "the equitable doctrine of laches does not apply to legal actions." Id. at 797, 683 S.E.2d 862 (citing VATACS Group v. HomeSide Lending, 281 Ga. 50, 51, 635 S.E.2d 758 (2006)).

2. The General Assembly has enacted statutes of limitation restricting the time a plaintiff has to file a lawsuit-in this case, two years. See OCGA § 9-3-33 ("Actions for injuries to the person shall be brought within two years after the...