Farahi v. Jordan, 517 S.E.2d 803 (Ga. Ct. App. 1999). · Go Syfert
Farahi v. Jordan, 517 S.E.2d 803 (Ga. Ct. App. 1999). Cases Citing This Book View Copy Cite
6 citation events (6 in the last 25 years) across 1 distinct court.
Strongest positive: Classic Commercial Services, Inc. v. Baldwin (gactapp, 2016-03-14)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Classic Commercial Services, Inc. v. Baldwin
Ga. Ct. App. · 2016 · confidence medium
Compare Robinson v. Boyd, 288 Ga. 53, 55 (2) ( 701 SE2d 165 ) (2010) (“Where service occurs after the statute of limitation has run, plaintiffs bear the additional burden of showing the exercise of due diligence in serving the defendants.”) (citation omitted); Farahi v. Jordan, 238 Ga. App. 63, 64 ( 517 SE2d 803 ) (1999) (Because service of process was perfected after the statute of limitation had passed, plaintiff was required to show he acted reasonably and diligently in attempting to serve defendant as quickly as possible, and, in absence of such a showing, “he would be guilty of lach…
discussed Cited as authority (rule) Classic Commercial Services, Inc. v. Robert Baldwin
Ga. Ct. App. · 2016 · confidence medium
That finding did not resolve whether the Georgia courts nevertheless had personal jurisdiction over Baldwin under the Long-Arm Statute. 13 limitation has run, plaintiffs bear the additional burden of showing the exercise of due diligence in serving the defendants.”) (citation omitted); Farahi v. Jordan, 238 Ga. App. 63, 64 ( 517 SE2d 803 ) (1999) (Because service of process was perfected after the statute of limitation had passed, plaintiff was required to show he acted reasonably and diligently in attempting to serve defendant as quickly as possible, and, in absence of such a showing, “he…
discussed Cited as authority (rule) Atcheson v. Cochran
Ga. Ct. App. · 2009 · confidence medium
Smith, P. J., and Bernes, J., concur. 1 Green v. Cimafranca, 288 Ga. App. 16, 17-18 (1) ( 653 SE2d 782 ) (2007) (footnotes omitted). 2 269 Ga. App. 508 ( 604 SE2d 588 ) (2004). 3 Supra. 4 See OCGA § 9-11-4 (f) (1) (A). 5 Farahi v. Jordan, 238 Ga. App. 63, 64 ( 517 SE2d 803 ) (1999). 6 Williams v. Bragg, 260 Ga. App. 377,379 ( 579 SE2d 800 ) (2003), citing Cantin u.
Retrieving the full opinion text from the archive…
FARAHI
v.
JORDAN
A99A0130.
Court of Appeals of Georgia.
May 12, 1999.
517 S.E.2d 803
1999 Ga. App. LEXIS 721
George E. Powell, Jr., for appellant., Barrickman & Allred, William S. Allred, Bovis, Kyle & Burch, Christina A. Craddock, for appellee.
Barnes, Blackburn.
Cited by 3 opinions  |  Published

Lead Opinion

Barnes, Judge.

D. J. Farahi appeals the trial court’s determination that his personal injury claim was barred by the statute of limitation due to his lack of diligence in serving the complaint. We affirm.

Farahi filed a slip and fall complaint against Madeline Jordan on August 21, 1997, about 45 days before the statute of limitation expired. The first sheriff’s return of service indicated that the summons was undeliverable on August 27, 1997. The second return of service noted that the defendant was hospitalized on September 30, 1997. On the third return, the sheriff indicated that process was served notoriously on Jordan’s son at Jordan’s “most notorious place of abode” on September 30, 1997.

Jordan answered on October 30, 1997. Among the defenses raised were: “SECOND DEFENSE. Plaintiff’s Complaint is barred due to insufficiency of service of process. THIRD DEFENSE. This Honorable Court lacks personal jurisdiction over Mrs. Jordan and as such, Plaintiff’s Complaint must be dismissed.” Additionally, in an October 30,1997 letter to Farahi’s lawyer accompanying a copy of the answer, Jordan’s lawyer noted that he did not believe service was valid.

For five months, Farahi did nothing to investigate Jordan’s affirmative defenses regarding insufficiency of service or lack of personal jurisdiction.

On April 2, 1998, in response to interrogatories, Jordan’s son stated in an affidavit that he did not reside with his mother. He further stated that the sheriff had not left the complaint at his mother’s home, but instead asked him to come to the sheriff’s department to pick up the papers. Jordan stated in her affidavit of April 2, 1998, that she did not authorize her son to accept service for her and confirmed that he did not live with her. On April 17, 1998, approximately two weeks after receiving these responses and six months after the statute of limitation expired, Farahi perfected service on Jordan. Jordan moved for summary judgment or in the alternative to dismiss, and the trial court granted summary judgment, finding that Jordan was not served before the expiration of the statute of limita[*64] tion, “nor did Plaintiff exercise due diligence to insure proper service within a reasonable time thereafter.”

We review for abuse of discretion the trial court’s determination of whether the plaintiff failed to exercise due diligence in perfecting service after the statute of limitation had run. Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990).

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.

Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

Because service of process was perfected after the statute of limitation passed, timely filing of the complaint relates back to the date that a suit was properly filed within the statute only if Farahi showed he acted reasonably and diligently in attempting to serve Jordan as quickly as possible, and that he was not at fault. Pryor v. Douglas Shopper &c., 236 Ga. App. 854 (514 SE2d 59) (1999). If Farahi could not make such a showing, however, he would be guilty of laches and service would not relate back to the filing of the complaint.

Farahi admits by implication that the third return of service, which Jordan’s son picked up at the sheriff’s office, was invalid, but argues that he reasonably relied on the sheriff’s return showing notorious service on Jordan’s son. The sheriff’s failure should not be imputed to him, he contends, as Jordan had actual notice of the suit and was not prejudiced by the invalid service before the statute ran.

In this case, receipt of the defendant’s answer asserting insufficiency of service “should have put [Farahi] on notice and inspired [him], through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987). Further, the defendant’s knowledge of the pending suit does not excuse Farahi’s lack of diligence, as “the sine qua non in perfecting service is service of the summonses in the manner provided by law.” Pryor v. Douglas Shopper &c., supra. Consequently, Farahi’s responsibility to account for the failure of service begins from the time the defendant’s answer was received in October 1997.

We find that the trial court did not abuse its discretion in concluding that Jordan’s affidavits rebutted the sheriff’s return of service, and that Farahi was not diligent in perfecting service after[*65] receiving Jordan’s answer raising insufficiency of service as a defense.

Decided May 12, 1999. George E. Powell, Jr., for appellant. Barrickman & Allred, William S. Allred, Bovis, Kyle & Burch, Christina A. Craddock, for appellee.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, P. J, concurs specially.

Concurrence

Blackburn, Presiding Judge,

concurring specially.

I agree with the outcome of the majority’s opinion; however, I write separately to point out a technical error present in some of our case law. Cases such as Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996); Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991); and Pryor v. Douglas Shopper &c., 236 Ga. App. 854 (514 SE2d 59) (1999), indicate that the statute of limitation is tolled by reasonable and diligent service made outside of the limitation period. This is inaccurate. The statute of limitation applies generally to the filing of the complaint with the appropriate court, and this filing must take place within the allotted time set out by the legislature, whether or not service has been perfected. Therefore, despite the use of tolling language in cases such as those listed above, if a timely complaint has not been filed, the suit is void, and no subsequent service, diligent or not, can toll the effect of the statute of limitation.

Reasonable and diligent service made outside the statute of limitation may relate back to the date that a suit was properly filed within the statute.

In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.

Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

Thus, although a number of cases have employed tolling language, such terminology should nonetheless be avoided.