Cleveland v. Katz
311 Ga. App. 880
Ga. Ct. App.2011Background
- Cleveland retained Katz and Betts & Katz LLP in 2003 for claims against a former employer.
- Cleveland filed a legal malpractice action against Katz, Betts, and the firm in December 2007 and voluntarily dismissed it on February 18, 2009.
- Cleveland refiled the action on August 14, 2009, four days before the six-month renewal period expired under OCGA § 9-2-61(a).
- Service had to be perfected within five days of summons under OCGA § 9-11-4(c); the five-day period began August 14, 2009.
- The record contains competing affidavits about service attempts, with Cleveland claiming Katz evaded service and Katz denying any service attempts during the period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the five-day service period computed correctly? | Cleveland argues August 21, 2009, was the last day. | Katz contends August 19, 2009, was last day. | Remand to correct calculation under correct rule. |
| Did Cleveland exercise reasonable diligence in service outside the five-day window? | Cleveland pursued multiple servers; attempts continued after the window. | Court should ignore service outside the five-day period. | Court erred by not applying diligence standard; issues require factual resolution. |
| Should the case be dismissed for failure to timely perfect service or laches given disputed service efforts? | Diligence showed timely pursuit; dismissal was premature. | Service failed or was improper; dismissal appropriate. | Remand for proper application of diligence/laches standard. |
| Was the trial court's reliance on a single standard proper when service occurred outside both the statute and five-day period? | Two-tier test should apply with elevated diligence if problems are known. | A different standard or lesser scrutiny should apply. | Two-tier test applies; need factual resolution on awareness of service problems. |
Key Cases Cited
- Scanlan v. Tate Supply Co., 303 Ga.App. 9 (2010) (two-tier diligence standard for service outside windows)
- Livingston v. Taylor, 644 S.E.2d 483 (2007) (trial court credibility and fact-finding on diligence to perfect service)
- Day v. Burnett, 199 Ga.App. 494 (1991) (exclude weekends/holidays when period < seven days)
- Williams v. Colonial Ins. Co., etc., 199 Ga.App. 760 (1991) (computing short time periods with holidays excluded)
- Alvelo v. State, 288 Ga. 437 (2011) (vacating orders for failure to apply proper legal standards)
- Wilken Investments v. Plamondon, III, 310 Ga.App. 146 (2011) (remand when trial court misapplied standards)
- Long v. Bellamy, 296 Ga.App. 263 (2009) (burden on plaintiff to show reasonable and diligent pursuit of service)
- Patel v. Sanders, 277 Ga.App. 152 (2006) (clarifying diligence standard for service)