Callaway v. Goodwin
327 Ga. App. 875
Ga. Ct. App.2014Background
- Callaway sued Goodwin for personal injuries from an August 10, 2010 car accident and filed the complaint on August 7, 2012 (three days before the two-year statute of limitations expired).
- At filing Callaway submitted a properly addressed summons and a $50 check payable to the Walton County Sheriff for service by sheriff.
- The sheriff perfected service on Goodwin on August 22, 2012 (12 days after filing and 12 days after expiration of the limitations period).
- Goodwin moved to dismiss, arguing service was not made within the limitations or the five-day grace period and that Callaway failed to act with due diligence.
- The trial court granted dismissal, finding (incorrectly) that Callaway had paid only filing fees and not the service fee, and concluding Callaway lacked due diligence.
- On appeal the appellate court found the record showed Callaway had tendered the service fee and that the trial court’s factual finding was unsupported, so it reversed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff exercised due diligence to effect service after the statute expired | Callaway: she filed within the limitations, provided a properly addressed summons, and tendered the sheriff’s fee at filing | Goodwin: service occurred after limitations and five-day period; Callaway failed to act diligently to ensure timely service | Reversed: appellate court held trial court’s dismissal rested on an unsupported factual finding (that Callaway didn’t pay the fee); providing summons and fee and reasonably relying on the sheriff is not alone a lack of diligence |
| Whether the five-day rule in OCGA § 9-11-4(c) shifts a diligence burden to the plaintiff | Callaway: the five-day duty is on the process server/sheriff, not the plaintiff | Goodwin: plaintiff must show diligence when service is late | Held: five-day duty is on the server; plaintiff only must show diligence when service after limitations unless notified of a service problem |
| Whether lack of notice of a service problem raises the "greatest possible diligence" standard | Callaway: she was not notified of any service problems and thus was not required to take extraordinary steps | Goodwin: late service alone shows insufficient diligence | Held: absent notice of service problems, plaintiff need not meet the highest diligence standard; no evidence Callaway was notified |
| Whether reliance on the sheriff to serve a properly addressed summons is unreasonable | Callaway: reasonable to rely on sheriff when summons properly addressed and fee tendered | Goodwin: reliance contributed to delay | Held: prior cases hold reasonable reliance on sheriff is not grounds for denial of due diligence when process was properly provided |
Key Cases Cited
- Akuoko v. Martin, 298 Ga. App. 364 (discretionary standard for trial court review of diligence; plaintiff must show reasonable and diligent efforts when service follows limitations)
- Jackson v. Nguyen, 225 Ga. App. 599 (reliance on sheriff to serve properly addressed process is reasonable and not penalized)
- Jackson v. Doe, 243 Ga. App. 210 (five-day obligation rests on process server, not the plaintiff)
- Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836 (clarifying who bears the five-day burden under OCGA § 9-11-4(c))
- Ziegler v. Hambrick, 257 Ga. App. 356 (distinguishable: plaintiff knew the marshal had service problems and failed to act with additional diligence)
- Parker v. Silviano, 284 Ga. App. 278 (distinguishable: plaintiffs supplied incorrect address and failed to show due diligence)