Wade v. Whalen

Pope, Presiding Judge,

concurring specially.

I concur in the opinion because the trial court did not abuse its discretion in finding that plaintiff Wade did not show due diligence in serving defendant Whalen. Nevertheless, I am concerned with the standard of “greatest possible diligence” in evaluating Wade’s attempts at service, and I recommend abandoning this standard except in instances in which the defendant has not been served and *771raises a service defense in his answer.

The standard of “greatest possible diligence” in the context of assessing a plaintiff’s attempts at service outside the statute of limitation was first used by this Court in Roberts v. Bienert, 183 Ga. App. 751 (1) (360 SE2d 25) (1987). In Roberts, this Court stated that while the plaintiffs were initially justified in relying on the marshal’s return of service, their receipt of the defendant’s responsive pleading to the complaint raising deficiency of service should have alerted them to the problem and inspired them, through counsel, to use the “greatest possible diligence to ensure proper and timely service.” Id. at 752.

Again in Garrett v. Godby, 189 Ga. App. 183 (375 SE2d 103) (1988), this Court used the standard of “greatest possible diligence” in explaining plaintiff’s duty to perfect service when the defendant had raised the defense of insufficiency of service in his responsive pleadings.

It was not until Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989), that the newly developed standard appeared in the context of a return of service before defensive pleadings were filed. In Walker, citing Roberts v. Bienert, this Court determined that the “receipt of the sheriff’s first return of service advising that the defendant could not be found within the court’s jurisdiction should have put her on notice and inspired her, through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” (Punctuation omitted.) Walker v. Hoover, 191 Ga. App. at 861. Since Walker, this Court repeatedly has used the elevated standard in the context of a plaintiff receiving a sheriff’s return of service indicating that there was a problem with service. The origin of the standard has been lost — even when defensive pleadings raising the defense of service have been filed, this Court has cited the return of service from the sheriff as the determinative point for using the “greatest possible diligence” standard. See, e.g., Mitchell v. Hamilton, 228 Ga. App. 850 (493 SE2d 41) (1997); Walker v. Bord, 225 Ga. App. 242 (483 SE2d 675) (1997); Sykes v. Springer, 220 Ga. App. 388 (469 SE2d 472) (1996); Devoe v. Callis, 212 Ga. App. 618 (442 SE2d 765) (1994); Nee v. Dixon, 199 Ga. App. 729 (405 SE2d 766) (1991); McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990). In fact, Patterson v. Johnson, 226 Ga. App. 396 (486 SE2d 660) (1997) and Robinson v. Stuck, 194 Ga. App. 311 (390 SE2d 603) (1990) appear to be the only decisions after Walker v. Hoover, 191 Ga. App. 859, employing the original rationale of the “greatest possible diligence,” in which the standard is triggered by the filing of responsive pleadings by defendant raising a service defense.

Meanwhile, despite this Court’s continual use of the “greatest possible diligence” standard, our Supreme Court has not used this *772higher standard in evaluating problems with service outside the statute of limitation. In Poloney v. Tambrands, Inc., 260 Ga. 850 (2) (399 SE2d 208) (1991), the Supreme Court affirmed the trial court’s finding that the plaintiffs were diligent in effecting service. In Poloney, the Court noted that the defendant had notice of the action, had filed defensive pleadings, and had begun participating in discovery before the plaintiffs perfected proper service. The Poloney Court stated that it would not disturb the trial court’s determination that “plaintiffs exercised due diligence in perfecting service. . . .” (Emphasis supplied.) Id. at 852.

More recently, in Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995), our Supreme Court again addressed the due diligence standard for service outside the statute of limitation. In that case, the sheriff had been unable to perfect service until two days after the statute of limitation expired because of the unavailability of a registered agent. The Court stated: “[i]n determining whether diligence was exercised, the focus is upon the plaintiff’s efforts after becoming aware that the process server failed to perfect service in accordance with the time limit provided in OCGA § 9-11-4 (c). DeLoach v. Hewes, 211 Ga. App. 321, 322 (439 SE2d 94) (1993).” (Emphasis supplied.) Id. at 837.

In addition to our Supreme Court’s failure to adopt this higher standard, my research indicates that this Court has not consistently applied the “greatest possible diligence” standard. For instance in Gordon v. Coles, 207 Ga. App. 889 (429 SE2d 297) (1993), a return of service showed that defendant had moved, and afterwards the plaintiff learned that defendant was living in Mexico. Despite an earlier return of service which showed that plaintiff was having problems serving the defendant, the Court used the standard of “due diligence.” Again in Hossain v. Tohme, 205 Ga. App. 538, 539 (1) (423 SE2d 4) (1992), despite the marshal’s entry of service reciting that defendant had moved, this Court used the standard of “due diligence.” See also Cantin v. Justice, 224 Ga. App. 195 (480 SE2d 250) (1997).

The 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 *773this stage, a court is involved and the “greatest possible diligence” must be exercised by the plaintiff to ensure proper and timely service.

Decided June 4, 1998 Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., David A. Forehand, Jr., for appellant. Sistrunk & Associates, Carla R. Johnson, Alston & Bird, Theodore E. G. Pound, Whitehurst & Riexinger, Elaine W. Whitehurst, Stephen P. Riexinger, for appellee.

In conclusion, this Court should return to the use of the standard of “due diligence” in evaluating all service attempts and abandon the higher standard of “greatest possible diligence,” except in cases such as Roberts v. Bienert, 183 Ga. App. 751; Garrett v. Godby, 189 Ga. App. 183; Robinson v. Stuck, 194 Ga. App. 311; and Patterson v. Johnson, 226 Ga. App. 396, in which the issue of service of process is raised by the defendant’s responsive pleadings. To the extent that Mitchell v. Hamilton, 228 Ga. App. 850; Walker v. Bord, 225 Ga. App. 242; Sykes v. Springer, 220 Ga. App. 388; Devoe v. Callis, 212 Ga. App. 618; Nee v. Dixon, 199 Ga. App. 729; McManus v. Sauerhoefer, 197 Ga. App. 114; and Walker v. Hoover, 191 Ga. App. 859, employ the higher standard of “greatest possible diligence,” they should be overruled.