Wehman Newsome, Sr. v. Sonya Graham

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and LAND, 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
August 15, 2022
In the Court of Appeals of Georgia
A22A0799. NEWSOME v. GRAHAM.
MCFADDEN, Presiding Judge.
This appeal challenges the denial of a motion to dismiss a petition for custody
modification based on alleged insufficient service of process; but the evidence
supports the trial court’s finding that service was perfected when the process server
left copies of the petition and summons with appellant’s wife at their residence. The
appeal also challenges the enforcement of a settlement agreement; but the record
shows without dispute that the parties reached such an agreement and announced its
terms on the record during a bench trial. So we affirm.
1. Facts and procedural posture.
Wehman Newsome and Sonya Graham are the parents of minor child J. A. N.
Newsome and Graham, who were never married, agreed to a permanent parenting
plan which the trial court incorporated into a final consent order, awarding primary
physical custody of the child to Graham and visitation rights to Newsome. Two years
later, Graham filed a petition to modify custody, alleging that Newsome’s behavior
had caused J. A. N. to have emotional problems.
Newsome moved to dismiss the petition, claiming insufficient service of
process. The trial court denied the motion to dismiss and the case proceeded to a
bench trial. During the trial, the parties announced that they had reached a settlement
agreement; recited the terms on the record, which included Graham having sole legal
and physical custody of the child, Graham paying all unpaid medical expenses of the
child, and Newsome paying certain attorney and guardian ad litem fees; and indicated
that the terms as recited at the hearing would later be memorialized in writing for the
parties’ signatures. Upon questioning by the trial judge, Newsome expressly
confirmed that he agreed with all the terms of the settlement agreement as read into
the record.
Graham subsequently filed a motion to enforce the settlement agreement
because Newsome refused to sign the document memorializing the agreement that
had been announced at the bench trial. The trial court granted Graham’s motion to
enforce the settlement agreement. Newsome brought this pro se appeal.
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2. Appellant’s brief.
Newsome’s initial appellate brief does not comply with the rules of this court.
Among other deficiencies, it does not contain citations to the record or a sequence of
arguments following the order of properly enumerated errors. See Court of Appeals
Rule 25. The fact that Newsome is “proceeding pro se does not relieve [him] of his
obligation to comply with the rules of this [c]ourt. Our requirements as to the form
of appellate briefs were created, not to provide an obstacle, but to aid parties in
presenting their arguments in a manner most likely to be fully and efficiently
comprehended by this [c]ourt.” Cooper v. State, 358 Ga. App. 212, 212-213 (854
SE2d 557) (2021) (citation and punctuation omitted). We note that Newsome’s reply
brief rectifies some of the deficiencies of his initial brief. To the extent the arguments
in his reply brief do not exceed the scope of the arguments discernible from his initial
brief, we will consider such claims of error. See Perez v. Atlanta Check Cashers, 302
Ga. App. 864, 867 n.3 (692 SE2d 670) (2010) (party may not use reply brief to
expand enumeration of errors).
3. Motion to dismiss.
Newsome contends that the trial court erred in denying his motion to dismiss
for insufficient service of process. We disagree.
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Where a defendant claims there was a failure of service, the trial
court has the authority to decide as a factual matter whether service has
occurred. This finding will not be disturbed as long as there is some
evidence to support it. Further, when a defendant in a lawsuit challenges
the sufficiency of service, he bears the burden of showing improper
service. The process server’s return of service can only be set aside upon
evidence which is not only clear and convincing, but the strongest of
which the nature of the case will admit.
Newsome v. Johnson, 305 Ga. App. 579, 581 (1) (699 SE2d 874) (2010) (citation,
punctuation, and emphasis omitted).
In the instant case, the process server’s affidavit of service provided that he
served Newsome with copies of the summons and petition by placing them at the feet
of the occupant of Newsome’s residence, who had refused to open the door of the
residence. At the hearing on the motion to dismiss, Newsome’s wife gave testimony
confirming that she had received documents when the process server slid them
underneath the door of the residence, that she saw “Sonya Graham v. Wehman
Newsome, Sr.” on the top sheet of the documents, and that she gave the documents
to Newsome. Moreover, Newsome himself admitted at the hearing that he had
received the served documents from his wife and he acknowledged that he had timely
filed an answer to the petition; but he further claimed that the served paperwork
contained only the summons with sheets of blank paper beneath it and that he later
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received the petition by mail from Graham’s counsel. Graham’s counsel, however,
stated in his place that he had given a copy of the petition to the process server, who,
as noted above, swore by affidavit that he had served Newsome with both the petition
and summons.
Under these circumstances, there was sufficient evidence to support the trial
court’s finding that proper service had in fact occurred pursuant to OCGA § 9-11-4
(e) (7), which permits service of the summons and complaint “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[.]” See also Tavakolian v. Agio
Corp., 304 Ga. App. 660, 665 (4) (697 SE2d 233) (2010) (service proper under
OCGA § 9-11-4 (e) (7) where copies of summons and complaint were left on garage
floor of defendant’s residence with defendant’s wife). Newsome has thus “failed to
carry his burden of showing improper service, and the trial court was correct in
denying [his] motion to dismiss[.]” Jacobson v. Garland, 227 Ga. App. 81, 84 (1)
(487 SE2d 640) (1997) (service proper where copies of summons and complaint were
left with defendant’s wife on the ground outside the door of their residence).
3. Enforcement of settlement agreement.
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Newsome challenges the trial court’s grant of Graham’s motion to enforce the
settlement agreement. The challenge is without merit.
When a motion to enforce a settlement agreement is decided
without an evidentiary hearing, as in this case, the issues raised are
procedurally analogous to those in a motion for summary judgment.
Accordingly, the court must view the evidence in the light most
favorable to the nonmoving party, and the movant must show that the
documents, affidavits, depositions, and other evidence in the record
reveal that there is no evidence sufficient to create a jury issue on
whether a settlement was reached. On appeal, we apply a de novo
standard of review to the trial court’s determination to enforce the
settlement agreement.
Miller v. Miller, 356 Ga. App. 142, 142-143 (846 SE2d 429) (2020) (citation and
punctuation omitted).
So viewed, the evidence in the record reveals that there is no jury issue on
whether a settlement was reached. As recounted above and as found by the trial court,
Newsome and Graham “came to an agreement on all outstanding issues which was
read into the record [at the bench trial]. Upon questioning by the [c]ourt, all parties
agreed to the terms of the agreement. There is no dispute that an agreement existed
between these parties[.]”
The trial court did not err in enforcing the oral agreement reflected by the
transcript of the bench trial since “oral settlement agreements are enforceable if their
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existence is established without dispute.” Strategic Law, LLC v. Pain Mgmt. &
Wellness Centers of Ga., 343 Ga. App. 444, 446-447 (a) (806 SE2d 880) (2017). See
also Lecroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215) (1988) (Uniform
Superior Court Rule 4.12 provides that “[o]ral agreements, if established, are
enforceable”). It is true that “where the very existence of the agreement is disputed,
it may only be established by a writing.” Reichard v. Reichard, 262 Ga. 561, 564 (2)
(423 SE2d 241) (1992) (citation and punctuation omitted). But contrary to
Newsome’s argument, there was no dispute as to the existence of the settlement
agreement. “That the [parties] in the present case had reached an agreement is without
doubt based on the [transcribed] colloquy[ announcing the settlement terms at the
bench trial].” Ray v. Ray, 263 Ga. 719, 720 (438 SE2d 78) (1994) (rejecting claim of
a dispute about the existence of a settlement agreement where colloquy at a hearing
showed that a settlement had been reached). See also Tranakos v. Miller, 220 Ga.
App. 829, 833 (1) (470 SE2d 440) (1996) (“written transcripts satisfy the writing
requirement by providing certainty and finality as to the exact terms of the
agreement”). Consequently, Graham’s “motion to enforce [the] settlement
[agreement] was properly granted under the circumstances regardless of whether
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[Newsome] signed the [document memorializing the terms of the oral] agreement.”
Ray, supra.Judgment affirmed. Gobeil and Land, JJ., concur.
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