Staggs v. Wang, 75008

• Decision Date: 30 November 1987
• Docket Number: No. 75008,75008
• Citation: 363 S.E.2d 808,185 Ga.App. 310
• Parties: STAGGS et al. v. WANG.
• Court: Georgia Court of Appeals

Page 808

363 S.E.2d 808

185 Ga.App. 310

STAGGS et al. v. WANG.

No. 75008.

Court of Appeals of Georgia.

Nov. 30, 1987.

Rehearing Denied Dec. 15, 1987.

Joab L. Kunin, Atlanta, for appellants.

Alfred B. Adams III, Frank O. Brown, Jr., Atlanta, for appellee.

BENHAM, Judge.

Appellants, three sisters formerly employed by the Presidential Hotel, filed suit against appellee Wang individually and against several entities doing business as the Presidential Hotel. In the suit filed on December 11, 1984, appellants alleged Wang had sexually harassed them; had fraudulently induced them into employment contracts; had failed to pay them the wages they had earned; had used his position to forestall their complaints; and, when appellant Staggs agreed not to pursue a workers' compensation claim, had promised but failed to pay her the medical expenses she had incurred as a result of a work-related injury. Appellee was not served with process until May 16, 1986, and he filed a motion for summary judgment on the ground that appellants' complaint was barred by the doctrine of laches. The trial court agreed, and granted appellee's motion as to all claims in the action pending against him. Appellants then commenced this appeal.

1. Appellee's motion to dismiss the appeal is denied. See OCGA § 5-6-48.

2. The trial court characterized appellants' lawsuit against appellee as one seeking compensation for personal injuries and applied the two-year period of limitation found in OCGA § 9-3-33. Each appellant agreed that the actions which were the basis of her claims against appellee occurred while she was employed at the hotel. The parties stipulated that appellant Staggs was last employed by the hotel in February 1984; appellant Leech on May 9, 1982; and appellant Blizzard on February 5, 1984. Thus, any personal injury claim that appellee Leech had was time barred when appellants' complaint was filed on December 11, 1984. While the personal injury statute of limitation had not expired as to Blizzard or Staggs when the complaint was filed, appellee was not served until May 16, 1986, several months after the period of limitation had expired as to the personal injury claims of Blizzard and Staggs.

"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. [Cits.] ... '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 he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible" ' ... [T]he 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. [Cits.]" Freemon v. Dubroca, 177 Ga.App. 745 (2), 341 S.E.2d 276 (1986).

The record is devoid of any effort by appellants to show the exercise of due diligence. The record does contain appellee's affidavit in which he swore that since November 30, 1983, over a year before appellants filed suit, he had resided at the address where he was served on May 16, 1986. The record also contains an excerpt from the deposition of appellant Blizzard, taken one week after the complaint in this lawsuit was filed, in which her attorney noted that the lawsuit had been filed and that if ongoing negotiations were unfruitful, process would be served. "Considering the factual posture, we cannot say as a matter of law that the trial court abused its discretion in holding that plaintiffs did not exercise due diligence in attempting to perfect timely service on defendant in the personal injury ... claim." Early v. Orr, 135 Ga.App. 887, 888, 219 S.E.2d 622 (1975).

3. Appellants contend the trial court erred in denying a motion for continuance and a "motion for discovery." The motions were filed November 17, 1986, the day on which appellants also filed a brief in opposition to appellee's motion for summary judgment. The...