Chrison v. H & H INTERIORS, INC. , 232 Ga. App. 45 ( 1998 )

Beasley, Judge,

concurring in part and dissenting in part.

I concur as to Divisions 1 (b), 2, 3, 4, and 5 of the majority’s opinion. I respectfully dissent as to Division 1 (a).

1. As stated in the majority opinion, one prerequisite to applying res judicata is that the two actions must have an identity of parties. OCGA § 9-12-40; see Fowler v. Vineyard, 261 Ga. 454, 455 (1) (405 SE2d 678) (1991). Sherrill was not personally served in the Tennessee action, as the record affirmatively shows. He learned of the suit and, a month after service was attempted, specially appeared to move to dismiss for insufficiency of service of process. Tennessee law is that Sherrill’s special appearance to challenge service did not constitute a general appearance as a party. Landers v. Jones, 872 SW2d 674 (Tenn. 1994). Since the court did not rule on his motion, and the question of jurisdiction over him, which he raised, became moot when the action was dismissed, he never became a party to the Tennessee action by appearance, default, or court order.

The majority opinion states that “Sherrill was served with process in both actions,” i.e., the Tennessee action and the instant Georgia action. But this statement depends on the validity of the opinion’s statement that “we must presume that the Tennessee court adjudicated the issue of sufficiency of process prior to its dismissal of Chrison’s complaint.” We can presume no such thing, for the record contradicts this presumption.⁹ Sherrill’s self-serving statement in the Georgia action that he now believes he was served in the Tennessee action is not determinative of the issue.

The Tennessee court simply did not rule on the question and instead dismissed the suit for failure to prosecute. Sherrill’s special appearance motion was pending at the time. (The Georgia trial court acknowledged as much, in the order appealed from.) But it was not necessary for the Tennessee court to rule on Sherrill’s special appearance motion. The practice of that court was to dispose of cases within 12 months of filing unless an order had been entered setting the case for trial. Unlike a default judgment, there was in the Tennessee case no unchallenged assertion of jurisdiction.

Because the Tennessee court, understandably, did not resolve the issue of whether Sherrill was properly served and consequently was subject to the court’s jurisdiction, he was never a party to the suit. Thus, there is no identity of parties in the two suits. The dismissal of the action could not be res judicata as to Sherrill, who was not yet adjudicated a party.

Ironically, the majority allows the dismissal of the suit in Tennessee to have greater status in Georgia than it does in Tennessee. This is an unfounded departure from what the Full Faith and Credit Clause requires. The Supreme Court of Tennessee explained in Dickerson v. Godfrey, 825 SW2d 692, 694 (Tenn. 1992) that “ 'the doctrine of collateral estoppel or estoppel by judgment is an extension of the principtle] of res judicata, and is generally held to be applicable only when it affirmatively appears that the issue involved in the case under consideration has already been litigated in a prior suit between the same parties ... if the determination of such issue in the former action was necessary to the judgment.’ [Cit.]” See Garrett v. Corry Foam Products, 596 SW2d 808, 810 (Tenn. 1980).

Plaintiff, having discovered Sherrill was in Georgia, simply allowed the attempted Tennessee action to be dismissed and, four months later, filed the instant suit in Georgia and gained service here. A special process server was permitted by the court because Sherrill was avoiding service, after plaintiff Chrison got a new address for him. He testified in deposition that he and his wife owned their present home in Atlanta since about June 1995. He had only a temporary apartment in Nashville, Tennessee, from about late June to September 1994, and a hotel room in Knoxville for two to three months in early 1995. In 1992 and 1993 he had a hotel room in Warner Robins while his family maintained residence in Atlanta. Those were his whereabouts during the five years preceding March 10, 1997, the date of the deposition. Service had been attempted on him at a business address in Nashville on March 30, 1995.

Green Acres Discount v. Freid & Appell, Inc., 135 Ga. App. 816, 818 (219 SE2d 39) (1975), cited by the majority for the presumption that the foreign court found it had personal jurisdiction, is distinguishable. Green Acres Discount involved an express ruling by the New York trial court that it had personal jurisdiction over the defendant based on its finding the defendant had transacted business in New York. Obviously, when a foreign trial court has expressly found personal jurisdiction after hearing both sides argue the issue, such must be accorded full faith and credit and be considered res judicata. See also Gordon v. Gordon, 237 Ga. 171, 172 (1) (227 SE2d 53) (1976) (collateral attack on Tennessee judgment not allowed because “[the] same jurisdictional issues were raised and decided against [appellant] in the Tennessee court, and therefore the Tennessee judgment must be given full faith and credit. . . as to the finding of jurisdiction”); Crosby v. Wenzoski, 164 Ga. App. 266, 267 (296 SE2d 162) (1982) (California court denied motion to set aside judgment, thereby evidencing and documenting decision rejecting claim of insufficient service; California judgment accorded full faith and credit, despite claim in Georgia of improper service of California action).

The statement in the majority opinion for which Green Acres Discount is cited depends on a ruling in Tennessee on the issue of jurisdiction over Sherrill, which is not present. The same failing relates to the majority statement that “when a party appears and defends in the foreign court,” the judgment may not be attacked elsewhere. While this is true, Sherrill did not appear and defend or otherwise subject himself to the jurisdiction of the Tennessee court, such as by defaulting. He merely challenged service of process.

Finally, the majority states that Chrison had “a full and fair opportunity to litigate all issues, including issues of jurisdiction, in the Tennessee action.” That is not so, as it is apparent Chrison had not been able to bring Sherrill into court as a party. The only return of service relating to Sherrill is service on the regional manager of an unnamed organization in Tennessee.

Edwards v. Fireman's Fund Ins. Co., 147 Ga. App. 27, 28 (248 SE2d 2) (1978), supports the general principle that there must be an express ruling. Edwards held that even though the workers’ compensation award was silent on two hospital bills put in the record, the administrative law judge could hold later that such was a mistake and could award additional benefits based on these bills. Edwards explained: “Having made no ruling in regard to these bills in his first award, the issue remained open and he was authorized to hold a hearing and issue an award to determine the question of whether these hospital bills should be allowed.” Id. Edwards rejected the res judicata argument. As to the instant case, the Tennessee court’s inaction on the pending motion to dismiss similarly precludes res judicata from operating on this issue.

2. Res judicata also requires that there be a prior adjudication by a court of competent jurisdiction. Fowler, supra. Under Tennessee law, a judgment against an unserved defendant is void. Overby v. Overby, 457 SW2d 851 (Tenn. 1970). Georgia law is likewise: a “suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [Cits.]” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994); see Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998) (action void if purported agent without authority to receive service); Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204, 205 (1) (477 SE2d 369) (1996) (“A suit is void if service was never perfected”), aff’d, 268 Ga. 432 (491 SE2d 50) (1997). Thus, insofar as Sherrill is concerned, the final order entered in Tennessee, which left the issue of proper service unresolved, carries no res judicata effect in either Tennessee or Georgia.

Two prerequisites for res judicata as to Sherrill are not present. The majority has allowed him to deny service in Tennessee and avoid suit in Georgia. This is built on the supposition that the Tennessee court rejected his challenge to service there. A supposition would not bar a new suit in Tennessee, and such a diaphanous bar should not constitute an impermeable wall to prevent a Georgia citizen’s suit against another Georgia citizen in their home state.

Decided March 20, 1998 Reconsideration denied April 3, 1998 Brock, Clay, Wilson & Rogers, Randall F. Rogers, Nicholas P. Panayotopoulos, for Chrison. Decker & Hallman, David C. Moss, Anne L. Hunt, for Holt and H & H Interiors, Inc. et al.

I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this opinion.

9 It is inconsistent for the majority to make this crucial presumption while at the same time noting in footnote 2 that the briefs state certain facts not supported by the record so we do not rely on them. The same is true respecting footnote 7.