Varricchio v. Johnson

Banke, Presiding Judge,

dissenting.

The original attempt to serve the defendant took place in DeKalb County on February 28, 1986, prior to the expiration of the statute of limitation. It was evidently at this time that the plaintiff first became aware that the defendant had moved his residence. Less than three weeks later, on March 19, 1986, the plaintiff wrote a letter to the DeKalb clerk requesting that service be attempted on the defendant in Forsyth County, where he maintained a law office. On March 28, 1986, the Forsyth County Sheriff sought to effect service at that location by leaving a copy of the complaint and summons with the defendant’s secretary. However, the secretary evidently was not authorized to accept service on the defendant’s behalf, with the result that this did not constitute valid personal service upon him pursuant to OCGA § 9-11-4 (d) (7). Nevertheless, the defendant obviously became aware at that time of the pendency of the action, for on April 14, 1986, he filed an answer to the complaint, asserting lack of personal jurisdiction and insufficiency of service of process as defenses.

On April 11, 1986, the plaintiff, having now learned that the defendant’s new residence was, like his law office, located in Forsyth County, filed a motion in the DeKalb County Superior Court seeking to transfer the case to Forsyth County. That motion remained pending for approximately six weeks before the DeKalb court granted it. Ten days following the grant of the motion, before the actual transfer of the case had taken place, the plaintiff wrote a letter to the Forsyth clerk requesting that another attempt be made to serve the defendant at his law office. Personal service was ultimately accomplished at that location approximately two and a half weeks later, on June 11, 1986.

Decided July 15, 1988 Rehearing denied July 29, 1988 D. Lynn Russell, for appellant. Weymon H. Forrester, James E. Brim III, for appellee.

I do not understand how these facts evidence a lack of diligence on the part of the plaintiff in attempting to perfect service. Although it is true that the plaintiff did not make any further attempt to have the defendant served in Forsyth County during the six-week period in which her transfer motion was pending, this undoubtedly was because she was awaiting a ruling on that motion by the DeKalb Court. Her conduct in this regard certainly resulted in no prejudice to the defendant, who filed an answer, a motion to dismiss, and an objection to the transfer motion during this period.

The only other period of delay with which the plaintiff can reasonably be charged is the three weeks which transpired between the original attempt at service at the defendant’s former residence in DeKalb County and the plaintiff’s first request for service in Forsyth County. I do not believe such a three-week delay can reasonably be considered of sufficient magnitude to warrant the dismissal of the suit based on lack of diligence in attempting to perfect service. Consequently, I would reverse the judgment of the trial court.

I am authorized to state that Presiding Judge McMurray, Judge Sognier and Judge Benham join in this dissent.