Telisha Teshell Watts v. Willie Charles Brittian ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
November 29, 2021
In the Court of Appeals of Georgia
A21A1369. WATTS v. BRITTIAN.
BROWN, Judge.
Telisha Watts filed this personal injury action against Willie Brittian for
injuries she allegedly sustained when Brittian collided with Watts’ vehicle. After
Brittian failed to file an answer, the trial court entered final judgment in favor of
Watts. Brittian subsequently filed a motion to set aside the judgment, asserting lack
of proper service, which the trial court granted. After Watts failed to serve him,
Brittian moved to dismiss Watts’ action. In response, Watts filed a motion for service
by publication. The trial court denied Watts’ motion and dismissed the action. Watts
appeals, contending that the trial court erred in (1) setting aside the final order and
judgment previously entered against Brittian and (2) denying her motion for service
by publication. We affirm.
The pertinent facts are as follows. According to the affidavit of service filed
by Watts on March 14, 2019, Watts served Brittian at his home by delivering a copy
of the complaint and summons to Johnnet Garland, Brittian’s stepdaughter. After
Brittian failed to file an answer, Watts requested a default judgment, and the trial
court held a May 26, 2020 hearing on damages and entered a final order and judgment
on May 27, in favor of Watts in the amount of $35,000 plus post-judgment interest.
On September 10, 2020, Brittian filed a motion to set aside the final judgment
pursuant to OCGA § 9-11-60 (d), averring that his stepdaughter was not of suitable
discretion to accept service on his behalf and that he did not receive actual notice of
the lawsuit until after the final judgment was rendered against him. According to
Brittian’s affidavit, his stepdaughter was 18 years old at the time of service, but
suffers from mental challenges which include a significant inability to
comprehend basic matters and to understand the gravity of the suit
papers that were served upon her. She requires adult supervision to
assist her with her daily affairs, and she cannot provide herself the basic
necessities of food, shelter, or clothing without the assistance of others.
While she has never been declared incompetent by any [c]ourt, she has
always been cared for by family members. She currently resides with a
family member in Virginia.
2
On October 21, 2020, the trial court granted Brittian’s motion, setting aside the final
judgment, and ordered Watts to serve Brittian within 60 days of entry of the order.
Seventy-eight days later, Brittian filed a motion to dismiss, asserting that he
was not served in the sixty-day period as ordered by the court and that the applicable
statute of limitation had expired.1 See OCGA § 9-3-33 (two-year statue of limitation
applies to actions for injuries to the person). In response, Watts moved for service by
publication and opposed Brittian’s motion, asserting that Brittian was evading
service. In support of her motion, Watts submitted two affidavits from a process
server. According to one affidavit, on October 22, 2020 — the day after the trial court
entered its order — the process server attempted to serve Brittian at the same address
at which the stepdaughter had been given the complaint and summons. However, a
“[n]eighbor confirmed that address has been vacant for some time.” In the second
affidavit, the process server averred that he attempted to serve Brittian at a different
address on December 28, 29, and 30, 2020 — after the trial court’s 60-day deadline
for service. On each occasion, no one answered, and the process server could not see
1
According to Watts’ complaint, the collision occurred on October 18, 2017.
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inside the house.2 On the third occasion, the process server knocked on a neighbor’s
door, but no one answered. Watts also stated in her objection that a skip trace
performed after the first service attempt yielded no address, but a subsequent skip
trace yielded the second address. The court denied the motion for service by
publication and granted Brittian’s motion to dismiss the action. Watts appeals, but
does not enumerate as error the dismissal of her action.
1. Watts first contends that the trial court erred in setting aside the final
judgment against Brittian based on Brittian’s affidavit that his stepdaughter was not
of suitable discretion to accept service on his behalf because the affidavit was not
based on sufficient evidence. A motion to set aside may be brought to set aside a
judgment based upon, inter alia, lack of jurisdiction over the person or the subject
matter. OCGA § 9-11-60 (d) (1).
When the defense of lack of personal jurisdiction due to defective
service is raised by way of a motion to set aside the judgment, the trial
court sits as the trier of fact. . . . Our standard of review in this regard is
the “any evidence” rule, and absent an abuse of discretion, we will not
reverse a trial court’s [decision] to set aside a judgment.
2
The process server averred that there were two vehicles in the driveway, but
one looked inoperable and the other looked as though it had not been driven recently.
4
(Citations omitted.) Smith v. Wood, 174 Ga. App. 799 (1) (331 SE2d 636) (1985).
Accord Aikens v. Brent Scarbrough and Co., 287 Ga. App. 296, 297 (651 SE2d 214)
(2007). “Generally, a return of service is prima facie evidence of the facts recited
therein, but it may be rebutted by proof that such facts are untrue. Such proof may
include, along with other evidence to impeach the return of service, sworn statements
made on personal knowledge.” (Citations and punctuation omitted.) Anglin v. State
Farm Fire and Casualty Ins. Co., 348 Ga. App. 362, 365 (1) (823 SE2d 51) (2019).
Pursuant to OCGA § 9-11-4,
[s]ervice shall be made by delivering a copy of the summons attached to
a copy of the complaint . . . to the defendant personally, or by leaving
copies thereof at the defendant’s dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein, or
by delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process.
(Emphasis supplied.) OCGA § 9-11-4 (e) (7). While “suitable . . . discretion” has not
been defined by a Georgia court, federal courts have explained that “[d]iscretion for
service of process denotes the capacity and maturity to act wisely and prudently.”
5
(Citation and punctuation omitted.) Boston Safe Deposit and Trust Co. v. Morse, 779
FSupp. 347, 350 (II) (S.D.N.Y. 1991).3
In Trammel v. Natl. Bank of Ga., 159 Ga. App. 850 (285 SE2d 590) (1981),
this Court addressed whether the defendants’ twelve-year-old daughter was a person
of suitable age and discretion to accept service. After noting that the only evidence
the defendants submitted in support of their contention that the daughter was not of
suitable age and discretion was that she was twelve years old, we refused to hold as
a matter of law that a twelve year old is not a person of suitable age and discretion
because “[t]his is a factual matter.” Id. at 852-853 (1). Moreover, we pointed out that
the “fact that the defendants received the service from the person served is some
indication that that person was of suitable age and discretion and that service was
effectuated in such a manner to reasonably accomplish it.” Id. at 852 (1).
Here, Brittian sought to rebut the fact that his stepdaughter was a person of
“suitable discretion” as stated in the return of service, submitting a sworn affidavit
3
“Because Georgia’s Civil Practice Act is modeled on the Federal Rules of
Civil Procedure, decisions of the federal courts interpreting the federal rules are
persuasive authority.” (Citation and punctuation omitted.) Synovus Bank v. Peachtree
Factory Ctr., 331 Ga. App. 628, 630, n.2 (770 SE2d 887) (2015). See also Trammel
v. Natl. Bank of Ga, 159 Ga. App. 850, 851 (1) (285 SE2d 590) (1981) (“the Federal
Rule was amended to permit service upon ‘some person of suitable age and discretion
then residing therein’ — the same wording adopted by our CPA”).
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explaining his stepdaughter’s mental capacity. Based on this affidavit, the trial court
found that Brittian had “successfully rebutted the [presumption of valid] service.
Particularly here, where the mentally challenged person lives out of state and there
are no medical records proving incompetence, the Defendant step-father’s testimony
as to the person’s competence is all that is reasonably required.” Because the court’s
findings are supported by evidence in the record and the court was within its
discretion to conclude that Brittian’s stepdaughter was not a person of “suitable
discretion” to accept service on Brittian’s behalf and that Brittian was not properly
served, we affirm the court’s order setting aside the judgment. See Adair Realty Co.
v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989) (“[T]he trial court considered
the conflicting evidence and ruled in favor of defendant, granting his motion to set
aside the judgment. The sworn affidavit of the defendant was direct evidence and
therefore sufficient to contradict the return of service, if believed. This court will not
interfere with the judgment. . . .”). Compare Wolfe v. Rhodes, 166 Ga. App. 845, 847
(305 SE2d 606) (1983).
2. Watts contends that the trial court erred in denying her motion for service
by publication because Brittian was evading service. This argument is also without
merit.
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“Georgia law allows service to be perfected by publication upon a proper
showing that the person on whom service is to be made resides outside the state, or
has departed from the state, or cannot, after due diligence, be found within the state,
or conceals himself or herself to avoid the service of the summons. OCGA § 9-11-4
(f) (1) (A).” (Punctuation omitted.) Henderson v. James, 350 Ga. App. 361, 364 (829
SE2d 429) (2019). “We review a trial court’s denial of a motion for service by
publication and associated dismissal of a complaint for an abuse of discretion.”
Cascade Parc Property Owners Assn. v. Clark, 336 Ga. App. 94, 95 (783 SE2d 692)
(2016).
In its order, the trial court found as follows:
[Watts] has not shown by affidavit that [Brittian] resides out of state, has
departed from the state, cannot after due diligence be found within the
state, or has concealed himself to avoid the service of summons. The
only affidavits in the record concerning service are from process servers,
and the only thing they show is four attempts at service at two different
addresses. [Watts] makes arguments in [her] brief, e.g.[,] she explains
that she performed a skip trace to find the second address, but she does
not support her arguments with evidence. “The correct legal standard for
due diligence for service by publication under OCGA § 33-7-11 (e) is
diligence in determining that an uninsured motorist is either out of state
or avoiding service.[” Smith v. Brooks, 354 Ga. App. 78, 81 (840 SE2d
156) (2020)]. [Watts] has shown no such diligence. She has not looked
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online, or even asked opposing counsel to accept service. Therefore, the
[c]ourt cannot find published service to be appropriate.[4]
The record supports the trial court’s findings. There is no evidence that Brittian
resides outside of Georgia or has departed the state, nor did Watts assert this in her
motion for service by publication. Nor is there any evidence showing that Brittian
concealed himself to avoid service. See Baxley v. Baldwin, 279 Ga. App. 480, 483 (3)
(631 SE2d 506) (2006) (“three fruitless visits to [defendant’s] store does not demand
a finding that [defendant] was wilfully concealing herself to avoid service”). While
the process server’s affidavit stated that no one answered the door at the second
address he visited, there is no evidence that anyone was home or that this was even
Brittian’s residence. Compare Clark, 336 Ga. App. at 94-96 (trial court abused its
discretion in denying plaintiff’s motion for service by publication where plaintiff
4
The trial court cited OCGA § 33-7-11 (e) in its order, which “establishes the
procedure for recovering from one’s own uninsured motorist carrier after being
injured by a tortfeasor who cannot be found.” Luca v. State Farm Mut. Auto. Ins. Co.,
281 Ga. App. 658, 660 (1) (637 SE2d 86) (2006). It is unclear from the record
whether any insurance company is involved in this lawsuit. Regardless, this Code
section applies the same standard of diligence as the more general provision found
in OCGA § 9-11-4. See id. (OCGA § 33-7-11 (e) “provides for service by publication
where a plaintiff shows . . . that the tortfeasor resides out of the state, has departed
from the state, cannot after due diligence be found within the state, or conceals
himself to avoid the service of summons”) (punctuation omitted).
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presented evidence that it located defendant’s residence, attempted service at that
residence multiple times, but the defendant, who knew service of the lawsuit was
being attempted, evaded the process server by remaining behind a locked door).
Finally, the process server’s affidavits showing that service was attempted at
Brittian’s old address once and a second possible address on three back-to-back days
fail to establish the required due diligence.5 See Styles v. Spyke Ten, LLC, 342 Ga.
App. 122, 126 (802 SE2d 369) (2017) (lack of due diligence necessary for service by
publication where attorney’s affidavit stated that he hired skip tracer to find
defendant’s last known address, process server attempted service two times on same
day at the address, process server offered no evidence to show that defendant was
actually at the address at the time of the attempted service but avoided coming to the
door, and no evidence that attorney instructed the process server to investigate and
locate defendant for purposes of service). Accordingly, the trial court was within its
5
Watts stated in her motion that she performed a skip trace to ascertain
Brittian’s whereabouts, and similarly states in her brief that she performed a
background check which yielded the second address, but these assertions are not
supported by evidence such as an affidavit. See, e.g., Luca, 281 Ga. App. at 658, 663
(1) (plaintiff’s attorney’s efforts to locate defendant were contained in affidavit filed
with motion for service by publication). See also OCGA § 9-11-4 (f) (1) (A); In the
Interest of A. H., 339 Ga. App. 882, 884 (795 SE2d 188) (2016) (“[d]ue diligence is
generally demonstrated by an affidavit”).
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discretion to deny Watts’ motion for service by publication. And because Watts has
not enumerated as error the trial court’s dismissal of her action, that aspect of the
court’s order is not before us for review. See Court of Appeals Rule 25.
Judgment affirmed. Doyle, P. J., and Reese, J., concur.
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