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Callaway v. Goodwin

The trial court erred in finding that the plaintiff lacked due diligence in serving the defendant.

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Estelle Carroll Callaway sued Harmony Lynn Goodwin for injuries arising from a car accident that took place on August 10, 2010.1 Callaway filed suit on August 7, 2012, three days before the statute of limitation expired, and the Walton County Sheriff’s Office perfected service on August 22, 2012. Goodwin subsequently moved to dismiss Callaway’s action based on the fact that she had been served after the limitation period had expired, and asserting that Callaway had failed to act diligently to ensure service in a timely fashion. The trial court granted that motion, and Callaway now appeals, arguing that the factual finding on which the trial court based its decision is unsupported by the record, and that the trial court therefore abused its discretion in dismissing her case. We agree with Callaway, and we therefore reverse.

“When a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible.” Akuoko v. Martin, 298 Ga. App. 364-365 1 680 SE2d 471 2009 punctuation and footnote omitted. “The trial court has discretion to determine whether a plaintiff has exercised sufficient diligence to effect service after the running of the statute of limitation, and we will not disturb the court’s decision absent an abuse of that discretion.” Id. at 365 1 punctuation and footnote omitted.

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