Wade v. Whalen

Decision Date04 June 1998
Docket NumberNo. A98A0068.,A98A0068.
Citation232 Ga. App. 765,504 S.E.2d 456
PartiesWADE v. WHALEN.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr., Dalton, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., David A. Forehand, Jr., Cordele, for appellant.

Sistrunk & Associates, Atlanta, Carla R. Johnson, Philadelphia, PA, Alston & Bird, Theodore E.G. Pound, Whitehurst & Riexinger, Elaine W. Whitehurst, Stephen P. Riexinger, Atlanta, for appellee.

BEASLEY, Judge.

Charles Wade sued Dr. Thomas Whalen for medical malpractice arising out of the doctor's participation in surgery on Wade's mother. She died on August 12, 1992, allegedly as a result of the malpractice. Wade filed suit on August 10,1994, two days before the running of the statute of limitation.1 Wade did not serve process on Dr. Whalen until eight months later on April 10, 1995. Dr. Whalen moved for summary judgment, asserting expiration of the time limitation. The court denied the motion and its renewal, but ultimately it did grant summary judgment. The issue is whether the trial court abused its discretion in finding Wade did not show diligent service of process.

1. "Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff. The correct test must be whether the plaintiff showed that 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 he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The plaintiff has the burden of showing lack of fault.... The question on appeal is whether the trial court abused its discretion in concluding that there was [not] due diligence by plaintiff in seeking to perfect service. To reverse the trial court, we would have to say as a matter of law that the trial court abused its discretion." 2

"The special duty the plaintiff bears to exercise reasonable diligence in serving a complaint for which the statute of limitations has expired, is too well established to dissertate. [Cits.] The thing that can never be lost in sight is that the plaintiff's cause of action was dead. It could not be revived unless the plaintiff used due diligence to perfect service, which diligence must be examined in light of the particular fact that the cause of action had expired."3

Diligence means "caution or case; persevering application devoted and painstaking application to accomplish an undertaking: assiduity." Webster's Third New International Dictionary. It embraces the concept of persistence. We must remember that when measuring diligence with respect to service of process, it is in the context of notifying a defendant of suit beyond the time the law ordinarily allows for the bringing of such a suit. It is the plaintiff's grace period.

This "special" duty of due diligence is elevated to an even higher duty of the greatest possible diligence once plaintiff becomes aware there is a problem with service. If the sheriff returns the summons after failed attempts, plaintiff becomes "`obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.' [Cit.]"4 At that point "reasonable diligence" is insufficient.5 The same elevated duty arises when defendant's answer challenges service.6

On August 11 Wade sent the summons and complaint to the sheriff to serve Dr. Whalen at a residence in Cobb County, Georgia. Dr. Whalen had moved to Irving, Texas, seven months earlier. The sheriff returned the service form to Wade by August 30 and indicated the doctor had moved. Wade sent the complaint via certified mail, return receipt requested, to the Cobb County address. It was forwarded to Dr. Whalen in Irving where he signed the postcard evidencing receipt. When Wade received the postcard, he sent another copy of the summons and complaint to the Cobb County sheriff and requested service be reattempted.

On October 12 Wade received Dr. Whalen's answer, which raised the defenses of defective service and statute of limitation and which denied he resided at the Cobb County address. Wade hired a private investigator on October 18, who informed Wade the next day of the doctor's address in Irving. A week later Wade served interrogatories asking for the doctor's current home address and place of employment.

Sometime between November 10 and 17 the Cobb County sheriff returned to Wade the service form showing unsuccessful service. Wade forwarded process to a Texas constable in Irving on the latter date. On December 1 Wade received Dr. Whalen's interrogatory responses which confirmed the Irving address and specified a work address. Two weeks later Dr. Whalen moved to a new residence in Dallas and on December 31 completed his work assignment for that employer. Service was unsuccessful at either the Irving address or the work address, and on January 12 Wade received the summons and complaint back from the Texas constable.

Several weeks later (February 3) Wade sent a letter to Dr. Whalen asking him to acknowledge service. The doctor moved for summary judgment on February 15 and served an affidavit listing his new address in Dallas. Wade forwarded the summons and complaint on March 14 to a Dallas constable, who in turn phoned Dr. Whalen on April 3 and 4 and set an appointment and served him on April 10.

During the eight months between the filing of the complaint and service of process, Wade was directly responsible for four significant delays. First, between August 30 and October 17 (47 days) Wade made no substantive effort to determine Dr. Whalen's correct address even though (i) by August 30 the Cobb County sheriff had returned the service form indicating Dr. Whalen had moved and (ii) on October 12 Wade had received the doctor's answer asserting defective service and denying the Cobb County address.7

Second, from October 19 through November 16 (28 days) Wade was aware from his own investigator that the doctor had moved to Irving, but did not forward the process papers to an Irving constable until November 17.8

Third, from January 12 through February 2 (21 days) Wade did nothing to pursue service even though on January 12 he received the summons and complaint back from the Irving constable.9

Fourth, from February 16 through March 13 (25 days) Wade did nothing to pursue service even though (i) he was aware of Dr. Whalen's new Dallas address and (ii) Dr. Whalen sought summary judgment based on ineffective service.10

Wade made at least three errors contributing to the delay in service. First, he provided the Cobb County sheriff with an address that was seven months outdated, even though Dr. Whalen's forwarding address was available from the post office. "The burden is on the plaintiff to ascertain a defendant's residence, and that obligation does not arise only upon expiration of the statute of limitation. [Cit.]"11 Plaintiff is obligated to ascertain this information before filing suit.12

Second, Wade sent a certified letter to the Cobb County address "in an attempt to see if the United States Post Office would disclose a new address." He did not check the box on the certified letter form (for an additional fee) to receive the addressee's forwarding address. The letter was forwarded to Whalen's Irving address where he signed the postcard that was returned to Wade. Not having been requested nor paid to do so, the postal service did not alert Wade to the Irving address. Wade's conclusion that this meant Dr. Whalen still lived at the Cobb County address was simply his own mistake that delayed discovery of the correct address.

Third, Wade misled the Irving constable by telling him Dr. Whalen traveled frequently to Atlanta and that he should try to serve him on a weekend. Dr. Whalen testified without contradiction that he traveled infrequently to Atlanta and never on a business day. The weekends were the least likely time for him to be home.

Based on Wade's delays and missteps, the court did not abuse its discretion in finding Wade did not show the greatest possible diligence.

2. Citing OCGA § 9-11-26(e)(2)(B), Wade contends Dr. Whalen was obligated to supplement his interrogatory responses to indicate that two weeks after serving them he moved to the new Dallas address. Regardless of whether the statute applies to this interrogatory response and whether Dr Whalen's February affidavit was a "seasonable" amendment under the statute, the two-month period between Dr. Whalen's relocation and the affidavit overlaps only one of the four significant delays caused by Wade and does not excuse any of his three additional errors. Adequate other evidence grounded the court's finding.

3. Citing Starr v. Wimbush,13 Wade argues that the first two orders of the court denying the motion for summary judgment and specifically finding ample evidence of reasonable diligence precluded a contrary later finding. The first order was entered on March 24, 1995 (before service was effected), and the second order was entered on September 21, 1995 (after service was effected).

In Starr the trial court had ordered service by publication in a ruling expressly finding defendant could not be found after due diligence.14 Defendant was personally served two months later, during which time several additional steps were taken to locate him. Because the attempted service by publication was ineffective, and because service had not been perfected until eight months after the statute of limitation had run, defendant moved to dismiss. The court granted the motion, finding plaintiff...

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