Henderson v. James. , 350 Ga. App. 361 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, 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 6, 2019
In the Court of Appeals of Georgia
A19A0632. HENDERSON v. JAMES.
RICKMAN, Judge.
In this personal injury action, the trial court denied a motion to dismiss filed
on behalf of Robert Lee Henderson–who has never been personally served and whose
whereabouts are unknown–by his insurer, on the basis that service by publication was
insufficient to confer personal jurisdiction over him. We granted an application for
discretionary appeal filed on Henderson’s behalf in order to examine whether the trial
court erred in holding that in personam jurisdiction attached so as to authorize the
court to render a potential monetary judgment against Henderson. We hold that
service by publication was insufficient under the facts of this case and, therefore,
reverse.
When reviewing a trial court’s ruling on a motion to dismiss for lack of
jurisdiction that has been decided on the basis of written submissions, “[we are] in an
equal position with the trial court to determine the facts and therefore examine[ ] the
facts under a non-deferential standard.” (Citations omitted.) City of Sandy Springs
Board of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 552 (801 SE2d 599)
(2017). When reviewing a ruling on a motion to dismiss for insufficient service, a
trial court’s ruling “will be upheld on appeal absent a showing of an abuse of
discretion.” (Citation omitted.) Id. And “when an appeal from the denial of a motion
to dismiss presents a question of law, we review the trial court’s decision de novo.”
(Citations omitted.) Id.
The undisputed facts are as follows. In June 2015, Henderson and Marion
Jerome James were involved in a motor vehicle accident in Ware County, Georgia.
James filed suit against Henderson on October 4, 2016, alleging that the accident was
caused by, and that he suffered injury as a result of, Henderson’s negligent operation
of his vehicle. The complaint further alleged that Henderson was a resident of Ware
County and lived at “2847 South Lakeview Drive,” as was reflected on the 2015
accident report.
2
The sheriff returned an entry of service non est after attempting unsuccessfully
to personally serve Henderson at the Lakeview Drive address. The entry of service
noted that Henderson could “not be found in the jurisdiction of [the Ware County]
court” and that the Lakeview Drive address was “a vacant house.”
On December 2, 2016, James filed an amended complaint in which he stated
that Henderson “has apparently departed from Ware County and the State of Georgia.
Therefore, the whereabouts of [Henderson] is currently unknown, and [Henderson]
must be served by publication.” Attached as exhibits to the amended complaint was
a sworn affidavit from James’s counsel seeking service by publication and an order
from the trial court authorizing service by publication.
Counsel’s affidavit contained a single paragraph that addressed James’s
attempts to locate and serve Henderson. In its entirety, the paragraph read:
[Henderson] resided at 2847 South Lakeview Drive, Waycross, Ware
County, Georgia at the time of the automobile accident referred to in this
action, but since the said automobile accident and filing of this action,
has apparently departed from Ware County, and the State of Georgia.
[James] does not know the present residence or where [Henderson] can
be found. [James] has made a diligent search for [Henderson] by
contacting his friends and relatives, but has had no success. [James] has
no reason to believe that [Henderson] now resides in this State. The
3
above stated address is the last place at which [Henderson] resided
according to the best of [James’s] knowledge, information and belief.
The trial court’s order authorizing the requested service by publication concluded
that, “Henderson, on whom service is to be made in this case resides out of the State,
or has departed from the State, or after due diligence, cannot be found within the
State, or conceals himself to avoid service of the Summons.” The trial court
subsequently entered an order stating that service upon Henderson had been perfected
by publication.
While Henderson’s location remained unknown, James served a courtesy copy
of the original and amended complaints on Henderson’s insurer, GEICO General
Insurance Company, although GEICO was not a named party to the lawsuit. GEICO
filed an answer on behalf of its insured which included the affirmative defenses of
lack of personal jurisdiction, insufficient process, and insufficient service of process.1
1
See generally Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d
150) (1973) (“Where the service in a case is insufficient to give the court jurisdiction
to render a judgment, and there is no waiver of service, the judgment may be attacked
by any person whose rights are affected by the judgment.”).
4
In February 2018, after the expiration of the statutory two-year limitation
period,2 GEICO filed a motion to dismiss on behalf of Henderson in which it
contended, among other things, that service by publication alone was insufficient to
establish personal jurisdiction over him. James filed a brief in opposition to the
motion that included an affidavit in which his counsel detailed the steps taken in an
attempt to locate and personally serve Henderson.
The affidavit stated that the following occurred before the filing of the lawsuit:
“GEICO was unable to locate its insured, and could not give [counsel] a good address
for . . . Henderson”3; counsel read about a second motor vehicle accident involving
a man named “Robert Henderson” in a local paper and filed open record requests to
obtain the incident and booking reports from that accident, which included a phone
number and address in Blackshear, Georgia; “when this phone number was called,
2
See OCGA § 9-3-33 (noting, with few exceptions, that “actions for injuries
to the person shall be brought within two years after the right of action accrues”).
3
The record shows that in response to Jones’s discovery requests, GEICO
provided “327 Nottingham Drive, Brunswick Georgia,” as an address at which
Henderson had lived “within the last five (5) years,” but there is no evidence that
Jones attempted to locate Henderson at that address.
5
there was no such person named Robert Henderson living at that address.”4 The
following occurred after the filing of the lawsuit: personal service was unsuccessful
at the “vacant house” located at the Lakeview Drive address listed on the police
report for the instant accident; counsel’s assistant conducted an internet and Facebook
search and determined that someone matching Henderson’s name and demographics
lived in Blackshear and apparently stayed with a sister in Brunswick for the month
of October 2016, but the assistant was otherwise unable to locate Henderson after
accessing WhitePages Premium; and counsel mailed notice of the lawsuit via certified
mail to the “vacant” Lakeview Drive address, but the notice was returned
“unclaimed.”
The trial court conducted a hearing on the motion to dismiss, during which it
was established that Henderson’s location remained unknown to both James and
GEICO. The trial court nevertheless denied the motion to dismiss, holding that the
affidavit filed by James’s counsel in opposition to the motion showed that he
“exercised due diligence in attempting to serve” Henderson with the summons and
complaint, but that “Henderson could not be found within the State of Georgia.” The
4
The affidavit does not specify who made the telephone call, to whom that
person spoke, or how the telephone call definitively established and/or confirmed that
Henderson did not live at the Blackshear address.
6
court further held that “there is sufficient evidence to conclude that . . . Henderson
wilfully secreted himself to avoid service of process”; therefore, the court held that
service by publication was sufficient to establish personal jurisdiction over him.
We granted the application for discretionary review that GEICO filed on
Henderson’s behalf, and this appeal follows.
Henderson (through GEICO) argues that the trial court erred in holding that
service by publication was sufficient to obtain personal jurisdiction over him under
the facts of this case. We agree.
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). Fundamental notions of due process, however, require that a chosen
method of service must be “reasonably certain to give actual notice of the pendency
of a proceeding to [interested] parties.” (Citation and punctuation omitted.) Reynolds
v. Reynolds, 296 Ga. 461, 462-463 (769 SE2d 511) (2015). And “notice by
publication is a notoriously unreliable means of actually informing interested parties
about pending suits.” (Citation and punctuation omitted) Id. at 463. Consequently, our
7
Supreme Court has recognized that service by publication “will not always result in
a constitutionally valid personal judgment since such procedures will not always
provide fair notice.” Melton v. Johnson, 242 Ga. 400, 404 (249 SE2d 82) (1978).
Within the context of these competing legal principles, the general rule in
Georgia is that service by publication does not confer personal jurisdiction over a
defendant in a tort action. See Southeastern Sec. Ins. Co. v. Lowe, 242 Ga. App. 535,
536 (1) (530 SE2d 231) (2000). Without personal jurisdiction, no money judgment
may be recovered. See id. (“This Court consistently has held [with limited exceptions]
that without personal service, in personam jurisdiction does not attach, and no money
judgment may be recovered from the tortfeasor or his insurer.”) (citations omitted);
see also Barnes v. Continental Ins. Co., 231 Ga. 246, 246-247 (201 SE2d 150)
(1973); Baxley v. Baldwin, 279 Ga. App. 480, 482 (2) (631 S.E.2d 506) (2006).
The Melton Court recognized a narrow exception to this general rule5: Service
of process by publication affords sufficient due process and confers personal
jurisdiction over a defendant to a tort action if the defendant is a resident who is
5
A second exception, not applicable here, renders service by publication
sufficient to obtain a nominal judgment against a known but unlocatable uninsured
motorist for the purposes of an uninsured motorist claim. See generally OCGA § 33-
7-11 (d), (e); Butler v. Gary, Williams, Parenti, Finney, Lewis, McManus, Watson &
Sperando, P.L., 280 Ga. App. 207, 210 (3) (633 SE2d 614) (2006).
8
actually present within the jurisdiction of the court, has actual knowledge of the suit,
and “wilfully secrets himself in order to frustrate all reasonable efforts to effect
personal service.” 242 Ga. at 403; see also Ragan v. Mallow, 319 Ga. App. 443, 446-
447 (2) (744 SE2d 337) (2012). The Court acknowledged that this inquiry is heavily
fact specific and must be done on a case-by-case basis. See Melton, 242 Ga. at 404.
Here, we need look no further than James’s complaint to determine that
Henderson does not fall within the Melton exception to in personam jurisdiction.
James himself contends that Henderson “has apparently departed from Ware County
and the State of Georgia,” lending itself to the conclusion that Ware County is not his
county of residence and he is not within the jurisdiction of the Ware County court.
See Melton, 242 Ga. at 403. Further, and of equal significance, the record contains
no evidence whatsoever that Henderson has actual knowledge of the lawsuit pending
against him. It follows that the trial court erred in holding that service by publication
was sufficient to provide Henderson with fair notice of the lawsuit so as to confer the
court with in personam jurisdiction, and further erred in denying the motion to
dismiss filed on Henderson’s behalf. See Lowe, 242 Ga. App. at 536 (1); see generally
9
Wyatt v. House, 287 Ga. App. 739, 740 (1) (652 SE2d 627) (2007), limited by Ragan,
319 Ga. App. 443; Baxley, 279 Ga. App. at 482 (2).
Judgment reversed. Miller, P. J., and Reese, J., concur.
10