Cleveland v. Katz

Helen Cleveland appeals the trial court’s order dismissing her renewal complaint on the grounds of failure to timely perfect service on Stephen M. Katz and the expiration of the statute of limitation. We review a trial court’s dismissal of a complaint on these grounds for an abuse of discretion. See Jones v. Brown , 299 Ga. App. 418, 418-419 683 SE2d 76 2009; Long v. Bellamy , 296 Ga. App. 263, 266-267 1 c 674 SE2d 120 2009. Because we determine that the trial court failed to apply the proper standard in exercising its discretion, we vacate the trial court’s order and remand for further proceedings. In March 2003, Cleveland retained Katz, David E. Betts, and their law firm, Betts & Katz LLP, to represent her in pursuing claims against a former employer. After the litigation ended in an unfavorable result for Cleveland, she filed a legal malpractice action against Betts, Katz and the firm1 in December 2007, which she voluntarily dismissed on February 18, 2009. There appears to be no dispute that the statute of limitation on Cleveland’s claims against Katz expired at some point prior to this voluntary dismissal. Cleveland then re-filed her action on Friday, August 14, 2009, four days before the six-month period for filing a renewal action expired pursuant to OCGA § 9-2-61 a. Under OCGA § 9-11-4 c, Cleveland had five days from the time of receiving the summons from the clerk to achieve service.

The facts surrounding Cleveland’s attempts to serve Katz are in dispute. Cleveland asserts that Katz was evading service and submitted affidavits from three process servers and her attorney in support of her claim. Cleveland’s counsel stated that he hired private process servers on Monday, August 17, 2009. The next day, he contacted his process servers who told him that they had been unsuccessful in serving Katz. The attorney states that he hired an additional process server and contacted the process servers daily from August 20 to September 8 to check on the status of Katz’s service. He was informed on September 9 that Katz had been served on September 8 at 8:30 p.m.