Van Omen v. Lopresti

• Decision Date: 06 October 2020
• Docket Number: A20A1277
• Court: Georgia Court of Appeals
• Parties: VAN OMEN v. LOPRESTI.

357 Ga.App. 9

849 S.E.2d 758

VAN OMEN

v.LOPRESTI.

A20A1277

Court of Appeals of Georgia.

October 6, 2020

Certiorari Denied May 3, 2021

Edward J. Dovin Ficken, for Appellant.

Joshua Stephen Ruplin, Marietta, Christopher A. Brookhart, for Appellee.

McFadden, Chief Judge.

Kyle Lee Van Omen appeals the dismissal of his personal injury action against Irina Teresa Lopresti. Van Omen argues that the trial court wrongly applied the greatest-possible-diligence standard when dismissing his action for failure to serve. Resolving a conflict in our law, we hold that if the statute of limitation has run, a plaintiff must exercise the greatest possible diligence to ensure proper and timely service from the time a defendant raises an issue with service in court. Until then, the plaintiff must exercise reasonable diligence to serve the defendant. We overrule cases to the contrary. Nevertheless, we hold that Van Omen failed to show that he exercised even reasonable diligence at any time. So we affirm.¹

1. Factual background.

The record shows that the parties were involved in an automobile collision on July 16, 2017. Van Omen filed this action against Lopresti on June 21, 2019, 25 days before the statute of limitation ran on July 16, 2019. See OCGA § 9-3-33 ; Infinite Energy v. Pardue , 310 Ga. App. 355, 362 (4), 713 S.E.2d 456 (2011). A deputy sheriff's return of service non est inventus, indicating that "multiple attempts made w/o service," was filed on August 13, 2019.

Nothing more happened until October 11, 2019, when Lopresti filed a special appearance answer, raising service defenses, and a motion to dismiss on the ground that the statute of limitation had run and she had not been served. The trial court granted the motion to dismiss, finding that Van Omen had not acted with the greatest possible diligence to ensure service. The court found that Lopresti still had not been served as of December 5, 2019, the date of the order. Van Omen filed this appeal, arguing that the trial court applied the wrong standard.

2. Applicable standard of diligence.

Although a plaintiff must file his complaint "within the applicable period of limitation[ ], the law allows the same to be served beyond that applicable period. If the timely filing of the pleading is followed by timely service perfected as authorized by law, the subsequent service will relate back to the initial filing even though the statute of limitation[ ] has run in the interim." Ga. Farm Bureau Mut. Ins. Co. v. Kilgore , 265 Ga. 836, 837, 462 S.E.2d 713 (1995). In other words, "[i]f the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation." Giles v. State Farm Mut. Ins. Co. , 330 Ga. App. 314, 317 (2), 765 S.E.2d 413 (2014) (citation and punctuation omitted).

The rule that service can relate back to the filing of a complaint so as to avoid the statute of limitation predates the Civil Practice Act. See Giles , 330 Ga. App. at 315-316 (1), 765 S.E.2d 413. But the rule has continued under the Civil Practice Act. That rule has been harmonized with the direction in the provision of the Act governing service of process upon the filing of a complaint, now OCGA § 9-11-4 (c), which directs that "the person making such service shall make the service within five days from the time of receiving the summons and complaint[.]" That five-day period has been held to be a safe harbor provision. "[I]f service is made within the five-day grace period allowed by OCGA § 9-11-4 (c), it relates back to the date the complaint was filed as a matter of law." Giles , 330 Ga. App. at 317-318 (2), 765 S.E.2d 413.

Even if service is made beyond the five-day grace period, however, service can relate back to the filing of the complaint so as to avoid the bar of the statute of limitation: "[w]here a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c), the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service." Moody v. Gilliam , 281 Ga. App. 819, 820, 637 S.E.2d 759 (2006) (citation and punctuation omitted). "When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised." Strickland v. Home Depot , 234 Ga. App. 545, 546, 507 S.E.2d 783 (1998) (citation and punctuation omitted).

A line of our cases beginning in 1987 holds that once a plaintiff becomes aware of a problem with service, the diligence that is due becomes "the greatest possible diligence." Roberts v. Bienert , 183 Ga. App. 751, 752 (1), 360 S.E.2d 25 (1987). In 2006, our Supreme Court adopted that holding. Swain v. Thompson , 281 Ga. 30, 32 (2), 635 S.E.2d 779 (2006).

In the present case, the parties disagree about the circumstances that trigger the higher duty, or, in other words, what is meant by "once the plaintiff becomes aware of a problem with service." Swain , 281 Ga. at 32 (2), 635 S.E.2d 779. Our cases are in conflict.

Numerous cases support Van Omen's position that the greatest-possible-diligence standard applies only from the time a defendant files a pleading raising a service issue. See, e.g., Lipscomb v. Davis , 335 Ga. App. 880, 880, 783 S.E.2d 398 (2016) ; Milani v. Pablo , 316 Ga. App. 287, 288 (1), 728 S.E.2d 883 (2012) ; Milton v. Goins , 309 Ga. App. 865, 865-866 (2), 711 S.E.2d 415 (2011), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 ; Carver v. Tift County Hosp. Auth. , 268 Ga. App. 153, 155, 601 S.E.2d 475 (2004), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 ; Ingraham v. Marr , 246 Ga. App. 445, 447, 540 S.E.2d 652 (2000) ; Patterson v. Johnson , 226 Ga. App. 396, 398, 486 S.E.2d 660 (1997), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 ; Robinson v. Stuck , 194 Ga. App. 311, 312 (1), 390 S.E.2d 603 (1990), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413.

A less numerous line of cases supports Lopresti's position that the greatest-possible-diligence standard applies from the time a plaintiff becomes aware of a problem with service such as from a sheriff's return of service non est. See, e.g., Williams v. Bragg , 260 Ga. App. 377, 379, 579 S.E.2d 800 (2003) (greatest possible diligence required after plaintiff learned from return of service that address was not in county where service had been attempted); Carter v. McKnight , 260 Ga. App. 105, 106-107 (2), 578 S.E.2d 901 (2003), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 (greatest possible diligence required after unsuccessful service attempt alerted plaintiffs to a service problem); Carmody v. Hill , 248 Ga. App. 437, 438, 546 S.E.2d 545 (2001), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 (greatest-possible-diligence standard applied from time plaintiff became aware of a problem with the address given to the sheriff); Sykes v. Springer , 220 Ga. App. 388, 390 (2), 469 S.E.2d 472 (1996) (greatest-possible-diligence standard applied from the time plaintiff received notice from the sheriff's department of a problem with service). See also Harris v. Johns , 274 Ga. App. 553, 554-555, 618 S.E.2d 1 (2005) (summarizing conflicting cases).

In his special concurrence to Wade v. Whalen , 232 Ga. App. 765, 772-773, 504 S.E.2d 456 (1998) (physical precedent only), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413, then-Presiding Judge Pope recognized the conflict in our cases and made a compelling argument for abandoning the greatest-possible-diligence standard "except in cases ... in which the issue of service of process is raised by the defendant's responsive pleadings." Wade , 232 Ga. App. at 773, 504 S.E.2d 456 (Pope, P. J., concurring specially). Presiding Judge Pope observed that

[t]he problem with employing the higher standard of "greatest possible diligence" after the plaintiff receives a return of service from the sheriff is that it creates an illogical distinction. Many plaintiffs are aware that there is a problem with service, despite the fact that the sheriff has not so indicated on a return of service. The notion of "due diligence" is predicated on plaintiff's awareness that, for some reason, a defendant has not been served. Imposing upon this group of plaintiffs this higher standard serves no useful purpose. To the contrary, in cases in which the statute of limitation has expired and the defendant has entered an appearance in court and raised a service defense, the higher standard should be imposed upon the plaintiff. At this stage, a court is involved and the "greatest possible diligence" must be exercised by the plaintiff to ensure proper and timely service.

Id. at 772-73, 504 S.E.2d 456 (Pope, P. J., concurring specially).

Since Wade , we have continued to acknowledge the conflict in our cases without endeavoring to resolve it. See, e.g. Montague v. Godfrey , 289 Ga. App. 552, 555 n. 4 (1), 657 S.E.2d 630 (2008) (physical precedent only), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 (noting conflict but declining to resolve it because plaintiff failed to exercise either reasonable diligence or the greatest possible diligence at any point); Duffy v. Lyles , 281 Ga. App. 377, 378, 636 S.E.2d 91 (2006), overruled in part on other grounds in Giles , 330 Ga. App. at 317-321 & n. 2 (2), 765 S.E.2d 413 (declining to resolve the conflict because the record failed to show that the plaintiff "exercised...