Jackson v. Nguyen

Birdsong, Presiding Judge,

dissenting.

1. Although appellants satisfied one of their obligations by providing the sheriff with Nguyen’s correct address, this one fact, standing alone, is not enough to show due diligence in seeing that service was perfected as quickly as possible. Moreover, whether appellants were guilty of laches is a matter committed to the discretion of the trial court, and I do not believe that this record shows an abuse of that discretion. Therefore, I must respectfully dissent.

2. Giving a proper service address was only one of appellants’ obligations when they filed a complaint with the expiration of the statute of limitation only days away. There remained the very serious obligation of acting in a reasonable and diligent manner in attempting to assure that service was made as quickly as possible. Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300). Admittedly appellants had *602no actual control over the sheriffs office and could not guarantee that service would be made as quickly as possible, but our law expects more of plaintiffs than merely to wait for the sheriff to serve process in the sheriffs own good time. This record does not even show that appellants pointed out that the statute of limitation was about to run, asked for expedited treatment by the sheriffs office before the statute ran, or ever called the clerk’s office to determine whether service was perfected. They certainly did not call the sheriff when service was not made within five days, ask why service had not been made, or ask for quick service. The only thing that appellants assert that they did to assure that proper service was made as quickly as possible was that they put the correct address on the summons and complaint. That is not enough. “A plaintiff is required to keep himself informed as to the progress of the case, and is under a duty to learn whether the defendants have been served and to take action to insure that they have been served. The plaintiff cannot simply rely on the clerk or sheriff to perfect service.” (Footnote omitted.) Ga. Practice & Procedure (1996 ed.), pp. 223-224, § 8-9. Although not absolutely required, some lawyers in this circumstance would have had a special process server appointed to assure that service was promptly perfected. Here plaintiffs did nothing.

3. As this action was filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, appellants were required to establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service was made as quickly as possible. As reasonable and diligent efforts were not made to ensure proper service as quickly as possible, appellants were guilty of laches, and service does not relate back to the time of the filing of the complaint so that the statute of limitation was tolled. Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (307 SE2d 134); Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360). Therefore, I believe that the trial court ruled correctly by dismissing the complaint.

4. Although Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348 (408 SE2d 111), can be read to suggest that a plaintiff is authorized to rely upon the sheriff doing his duty if the plaintiff provides a correct service address, the true import of the holding is in footnote 2: “A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers.” Id. at 350. Thus, the question remains whether the plaintiffs’ actions were reasonable given the fact that the statute of limitation would expire in only a few days. As I cannot agree that appellants’ actions were reasonable, I do not believe that Bennett v. Matt Gay Chevrolet should be read to say that merely providing the sheriff with the defendant’s correct service address and nothing more is suf*603ficient. In Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94), also cited by the majority, the plaintiff did not merely rely upon the sheriff but in fact called both the clerk and the marshal. These appellants, however, did nothing.

Decided March 19,1997 Richard W. Ragsdale, for appellants. Smith, Howard & Ajax, Matthew G. Moffett, for appellee.

5. As the trial court’s order states that “plaintiffs have failed to exercise diligence in perfecting service upon defendant, and thus service was untimely,” I cannot agree that the trial court “made no finding of laches, lack of diligence, or any other factor other than that the plaintiffs had relied on the sheriff to perfect service.” Moreover, as the majority has not demonstrated how the trial court abused its discretion in reaching this conclusion, I would affirm the dismissal. “Ordinarily, 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.” (Citation and punctuation omitted.) Shears v. Harris, supra at 62.

This record does not show an abuse of discretion. “In this determination the trial court hearing the motion to dismiss is vested with a discretion to determine the cause of the delay; if it is attributable to the plaintiff and the court dismisses the complaint this court will not intervene. The diligence exercised by the plaintiff describes the true test.” (Citations omitted.) Bible v. Hughes, 146 Ga. App. 769, 770 (2) (247 SE2d 584). Even though the majority may not agree with the decision of the trial court, that does not mean the trial court abused its discretion. As no one can deny that these appellants were woefully deficient in attempting to perfect, it cannot be said that the trial court’s conclusion that appellants were guilty of laches is not supported by the evidence. Even though the majority attempts to make something of the fact that the service in this case was not made years after the statute of limitation expired, the burden of showing a lack of fault rests with the plaintiffs (Bible v. Hughes, supra at 771) and I know of no exception to that rule for cases for which a plaintiff was not grossly late in perfecting service.

Although I do not relish the dismissal of a party’s complaint, these plaintiffs failed to exercise any diligence, much less due diligence.

Accordingly, I respectfully dissent. I am authorized to state that Chief Judge Andrews joins in this dissent.