Walker v. Bord
| Decision Date | 06 March 1997 |
| Docket Number | No. A96A2198,A96A2198 |
| Citation | 225 Ga.App. 242,483 S.E.2d 675 |
| Parties | , 97 FCDR 1286 WALKER v. BORD. |
| Court | Georgia Court of Appeals |
Burdine & Brown, Thomas F. Brown, II, William H. Clerke, IV, Atlanta, for appellant.
Bovis, Kyle & Burch, Timothy A. Hickey, Jr., Atlanta, for appellee.
Henry Walker sued Eric Bord for injuries he allegedly sustained in an automobile accident which occurred on September 15, 1993. Walker filed his complaint on September 8, 1995, one week before the relevant statute of limitation expired. See OCGA § 9-3-33. Bord was personally served with the complaint on December 13, 1995, and thereafter answered and moved the court to dismiss the complaint on the ground that he was not served within the applicable statute of limitation. The trial court found that Walker "failed to exercise due diligence to serve [Bord] in a timely manner as required by law" and granted the motion to dismiss. Walker appeals the trial court's order, and we affirm.
"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 limitations is a matter within the trial court's discretion and will not be disturbed on appeal absent abuse." (Citations and punctuation omitted.) Sykes v. Springer, 220 Ga.App. 388, 390(1), 469 S.E.2d 472 (1996).
The record in this case shows no abuse. Specifically, the record shows that in the fall of 1994, approximately one year before Walker filed this action, Bord moved from Atlanta, Georgia to Maryland to open a business. Bord stated in an affidavit that when he discontinued his telephone service in Atlanta, he instructed the telephone company to "have a tape-recorded message respond to any calls to [his] old number and inform the caller of [his] new telephone number." Bord also left his forwarding address with the United States Post Office in Atlanta and "routinely received mail in Maryland that had been forwarded from [his] former Atlanta address."
When Walker filed his complaint, he attempted to serve Bord at his former Atlanta address provided on the Motor Vehicle Accident Report. On September 18, 1995, the marshall returned the entry of service to Walker's counsel showing that service was not perfected because Bord had moved. On September 28, 1995, Walker's counsel sent Bord's insurance company, USAA Property & Casualty Insurance ("USAA"), a document entitled "REQUEST FOR PRODUCTION OF INFORMATION TO A NON-PARTY." The document requested that USAA provide Walker with information concerning Bord's address. 1 On October 26, 1995, prior to receiving a response from USAA, Walker requested that Bord's counsel accept service on behalf of Bord. Counsel denied the request because he had no such authority. On October 31, 1995, USAA informed Walker in a letter that it would not comply with his request for Bord's address information. A local marshall served Bord at his Maryland residence 43 days later.
(Citations and punctuation omitted.) Starr v. Wimbush, 201 Ga.App. 280, 281(2), 410 S.E.2d 776 (1991).
We find several problems with Walker's efforts in this case. First, we do not agree with Walker that he "had no reason to doubt the accuracy" of the information contained in the Motor Vehicle Accident Report. Walker had the burden to ascertain Bord's residence, and the information upon which he relied was almost two years old. See Devoe v. Callis, 212 Ga.App. 618, 619(1), 442 S.E.2d 765 (1994). The expiration of the statute of limitation was looming. Under the circumstances, diligence would seem to dictate that Walker take at least some action to insure that the information was not stale.
Second, when Walker realized there was "a problem with service, he was obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service." (Citations and punctuation omitted.) Sykes, supra at 390(2), 469 S.E.2d 472. Yet Walker did nothing for ten days...
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