                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 28, 2017




In the Court of Appeals of Georgia
 A17A0202. CHOICE v. FLORIDA MEN’S MEDICAL CLINIC
     d/b/a GEORGIA MEN’S MEDICAL CLINIC.

      BRANCH, Judge.

      On June 8, 2015, plaintiff Willie Choice voluntarily dismissed his first

complaint against defendant Florida Men’s Medical Clinic, d/b/a Georgia Men’s

Medical Clinic (“the Clinic”). Choice’s first complaint alleged assault and battery,

negligent hiring, and other torts arising from his visit to the Clinic on August 6, 2012.

On December 8, 2015, Choice filed a renewal action, but Choice did not serve the

renewal summons and complaint on the Clinic until January 4, 2016. The Clinic

moved to dismiss the renewal action on grounds including that Choice was

insufficiently diligent in effecting service, and the trial court granted the motion. On

appeal, Choice’s arguments include that the evidence does not support the trial
court’s judgment. We vacate and remand for further proceedings because the trial

court erroneously held Choice accountable for the delay in effecting service from the

date of the first attempted filing of the complaint rather than from the date the clerk

provided file-stamped copies of the complaint and summons for service.

      A trial court’s finding that a plaintiff was not sufficiently diligent in effecting

service is a discretionary determination that will not be disturbed if there is some

evidence to support the court’s finding. Williams v. Bragg, 260 Ga. App. 377, 379

(579 SE2d 800) (2003). Although we thus view the record in favor of the judgment,

the undisputed and relevant facts are that on August 6, 2012, Choice, who had been

treated by the Clinic for more than a year, was allegedly touched inappropriately by

a Clinic employee, Christopher Vickery, during a scheduled appointment. On April

25, 2014, Choice filed his original complaint against the Clinic and Vickery for

imputed liability, assault and battery, negligent hiring and retention, invasion of

privacy, and punitive damages. On June 8, 2015, Choice voluntarily dismissed his

complaint.




                                           2
      On December 8, 2015, or exactly six months after the voluntary dismissal of

his first complaint,1 Choice attempted to file his renewal action electronically, adding

counts including professional negligence, violation of the Fair Business Practices Act,

and fraud, and naming three additional defendants (two doctors at and one employee

of the Clinic). On December 9, Choice learned that the Fulton County State Court had

rejected his filing due to an incorrect filing code. On December 16, the complaint was

accepted and stamped filed as of December 8. On December 23, Choice submitted the

file-stamped complaint and summons to a process server. On that day, an assistant at

Choice’s counsel’s office emailed to the process server a copy of the complaint and

a list of four defendants, including the Clinic. On December 29, when the process

server attempted to serve the Clinic at its Atlanta office, he was told by another

occupant of the building that the Clinic’s office had been vacant for “a couple of

weeks.” The process server then consulted the Georgia Secretary of State’s website

      1
        See OCGA § 9-2-61 (a) (“When any case has been commenced in either a
state or federal court within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court of this state or
in a federal court either within the original applicable period of limitations or within
six months after the discontinuance or dismissal, whichever is later, subject to the
requirement of payment of costs in the original action as required by subsection (d)
of Code Section 9-11-41; provided, however, if the dismissal or discontinuance
occurs after the expiration of the applicable period of limitation, this privilege of
renewal shall be exercised only once.”).

                                           3
and found that Lawrence Haber was listed as the registered agent for the Clinic. A

different process server served Haber on the afternoon of January 4, 2016.2 On

February 3, 2016, the Clinic acknowledged service in writing, and this

acknowledgment was filed the same day.

      Later in February 2016, the Clinic moved to dismiss Choice’s complaint on two

grounds: for failing to attach a professional affidavit to his original complaint in

support of the claim for professional negligence included in the renewal action, and

for failing to exercise reasonable diligence in serving the renewal action on the Clinic

within the six-month period authorized by OCGA § 9-2-61 (a). In July 2016, the trial

court held that because the two-year statute of limitation governing personal injury

actions had expired before renewal, Choice “was unable to allege additional claims

in this refiled action” that were not “substantially the same as the original.” The court

also found itself “unable to say that the record establishes diligence in accomplishing

service” of the renewal action. Specifically, the court noted that Choice had failed to

file successfully by December 8 and that “the computer problem associated with

filing [his] renewal action” caused the complaint not to be stamped filed until

      2
         Although the Clinic disputes on appeal whether Haber was its registered
agent, the trial court explicitly found that the Clinic was served on January 4 “after
an unsuccessful attempt on December 29.”

                                           4
“December 16, 2015, already eight days after expiration of the renewal period.” The

court also found that Choice had failed to contact a process server until December 23,

had not attempted service by means of that server until December 29, and had not

succeeded in effecting service on the Clinic until January 4, or “27 days after

expiration of the renewal period.” The court concluded that because “the record

contains significant periods of time during the month of December during which

[Choice’s] diligence is essentially unexplained,” Choice had “failed to act with

reasonable diligence in effecting service as quickly as possible after [the] expiration

of the renewal period.” The court dismissed the complaint for this reason.

      On appeal, Choice argues that the trial court erred in dismissing his complaint

because Choice acted diligently in serving the complaint.

      In the course of concluding that Choice had been insufficiently diligent in

serving the summons and complaint, the trial court noted that the computer problem

on filing caused an 8-day delay until outside of the renewal period, apparently

following the rule that a plaintiff’s “diligence in perfecting service should be

measured from the time of filing [a] renewal action.” See Fusco v. Tomlin, 285 Ga.

App. 819, 820 (648 SE2d 137) (2007), citing Magsalin v. Chace, 255 Ga. App. 146

(564 SE2d 554) (2002). OCGA § 9-11-4 (c) provides as follows, however:

                                          5
      Where the service of process is made outside of the United States, after
      an order of publication, it may be served either by any citizen of the
      United States or by any resident of the country, territory, colony, or
      province who is specially appointed by the court for that purpose. When
      service is to be made within [Georgia], the person making such service
      shall make the service within five days from the time of receiving the
      summons and complaint; but failure to make service within the five-day
      period will not invalidate a later service.


(Emphasis supplied.)

      In Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (765 SE2d 413) (2014),

we noted the Georgia Supreme Court’s holding in Ga. Farm Bureau Mut. Ins. Co. v.

Kilgore, 265 Ga. 836 (462 SE2d 713) (1995) that OCGA § 9-11-4 (c)’s “person

making such service” identifies the process server rather than the plaintiff. 330 Ga.

App. at 317 (1), citing Kilgore, 265 Ga. at 837. We also pointed out the error of

statements like that made in Fusco to the extent that they fail to take account of the

portion of OCGA § 9-11-4 (c) granting the “person making such service” a grace

period of “five days from the time of receiving the summons and complaint.”

(Emphasis supplied.) As we noted, “[N]umerous [decisions] have incorrectly stated

that the plaintiff must serve the defendant within five days of the filing of the

complaint rather than [within five days of] receipt of the summons and complaint by

                                          6
the person making service.” Giles, 330 Ga. App. at 319. We thus stated the proper

rule as follows: “If the filing of the [complaint] is followed by timely service

perfected as required by law, although the statute of limitation runs between the date

of the filing of the [complaint] and the date of service, the service will relate back to

the time of filing so as to avoid the limitation.” Giles, 330 Ga. App. at 317 (citation

and punctuation omitted); see also Kilgore, 265 Ga. at 837. We also overruled

numerous cases3 that had misstated the rule, adding that “any other precedent not

identified in this opinion” that misstated the rule “should also be considered overruled

to the extent the rule is misstated.” Id. at n. 5.

       This complaint was eventually stamped as filed on December 8, 2015, the last

day of the six-month renewal period allowed under OCGA § 9-11-61 (a), and service

was not effected until January 4, 2016. This case may thus fall into the category

identified in Giles: where “‘a complaint is filed near the statute of limitation and

service is made after the statute expires and after the five-day safe harbor provision

contained within OCGA § 9-11-4 (c), the relation back of the service to the date of


       3
       The misstated rule in both Fusco and Magsalin comes from Heard v. Hart,
241 Ga. App. 441 (526 SE2d 908) (1999), which we explicitly overruled in Giles. See
330 Ga. App. at 319 n. 2. Both Fusco and Magsalin are thus among the cases already
overruled.

                                             7
filing is dependent upon the diligence exercised by the plaintiff in perfecting

service.’” 330 Ga. App. at 318 (2), quoting Moody v. Gilliam, 281 Ga. App. 819, 820

(637 SE2d 759) (2006); see also Milton v. Goins, 309 Ga. App. 865, 866 (1) (711

SE2d 415) (2011) (plaintiff bears burden of proving lack of fault when service is not

timely perfected as required by law). In other words, and although “the pertinent

process statutes place sole responsibility on the clerk to issue the necessary copies of

the complaint and summons to the sheriff or marshal to accomplish service,” Giles,

330 Ga. App. at 316 (1) the responsibility for exercising due diligence in effecting

service remained Choice’s. Id. at 318 (2).

      Under this law and these facts, the trial court was required to consider each part

of the delay between December 8, 2015 and January 4, 2016, including the eight days

from December 8 to December 16, in its determination of whether Choice exercised

proper diligence in perfecting service. Given that the clerk could not have transmitted

the summons and complaint for service until after that document had been file-

stamped, the trial court thus erred in counting the eight days after the expiration of

the renewal period against Choice. We therefore vacate the trial court’s order granting

the Clinic’s motion to dismiss and remand for further proceedings, including an

opportunity for both parties to submit and the court to consider evidence as to the date

                                           8
on which the clerk transmitted the file-stamped summons and complaint for service,

as well as any other evidence tending to explain the delay in service here. After

making a finding on the factual question of the date on which the clerk transmitted

the summons and complaint for service, the trial court should make its discretionary

determination as to whether Choice was sufficiently diligent in effecting service after

the expiration of the statute of limitation, taking into account the evidence as to each

period between December 16, 2015, when the complaint was accepted and back-dated

to December 8, and January 4, 2016, when the complaint was finally served.

      Judgment vacated and case remanded with direction. McFadden, P. J., and

Bethel, J., concur.




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