Bardin v. Lindsey

862 S.E.2d 600

BARDIN

v.LINDSEY.

A21A0659

Court of Appeals of Georgia.

September 16, 2021

Reconsideration Denied October 6, 2021

Thomas E. Cauthorn III, Marietta, Brittany Elizabeth Schmidt, for Appellant.

Michael David St. Amand, Megan Elizabeth Quisao, Robert Christopher Harrison, Marietta, Amanda Siegel Newquist, for Appellee.

Rickman, Chief Judge.

Following a car accident, Michelle and Russell Bardin filed suit against Joseph Lindsay. The trial court dismissed the suit due to insufficiency of service of process. On appeal, the Bardins contend that the trial court erred by dismissing the suit. For the following reasons, we affirm.

"A trial court's finding of insufficient service of process will be upheld on appeal absent a showing of an abuse of discretion." Aikens v. Brent Scarbrough & Co. , 287 Ga. App. 296, 297, 651 S.E.2d 214 (2007). "The trial court resolves factual disputes regarding service, and we will uphold the court's findings if there is any evidence to support them." Id.

The record shows that in February 2019, the Bardins filed suit against Lindsey for negligence and loss of consortium, seeking damages.¹ On March 18, 2019, the Bardins filed an affidavit of service alleging that Lindsey was served on March 11, 2019 by substitute service. The affidavit stated that a successful attempt at service was made: "at [h]ome: 170 Kubol Drive, Lawrenceville, [G]a 30046 received by Black Female. Attached documents to front door, after [ ]attempting to speak with Black Female who would only speak from upstairs window. Served because this is last known address for [Lindsey]." Lindsey filed a special appearance answer stating that he was not waiving the defense of lack of service.

The Bardins filed a motion for partial summary judgment alleging that Lindsey was properly served and failed to timely respond to requests for admission and discovery. The trial court denied the Bardins’ motion and found that "[t]here was not sufficient evidence as to the identity of the "Black Female" that was served or that the individual was of suitable age and discretion residing at the home. The Affidavit of service does not establish proper service on [Lindsey]."²

Thereafter, the Bardins filed a motion to compel, to reconsider, and to reopen discovery. Lindsey filed a motion dismiss for lack of service, alleging that it had been over three months since the trial court denied the Bardins’ motion for partial summary judgment and that there had been no additional attempts to serve Lindsey and that the Bardins had failed to perfect service within the renewal period. The trial court denied the Bardins’ motions and granted Lindsey's motion to dismiss the suit.

In dismissing the action, the trial court found that Lindsey,

has not been properly and timely served ... in this renewal action. [The Bardins] were put on notice as early as April 4, 2019 by [Lindsey's] Special Appearance Answer and again by [the trial court] on October 14, 2019 when [the trial court] entered an Order denying [The Bardins’] Motion for Partial Summary Judgment. [The Bardins] have not shown that they exercised the greatest possible diligence in serving [Lindsey] once they were put on notice of the lack of service or alleged lack of proper service.

In three enumerated errors, the Bardins contend that the trial court erred by dismissing the suit.

"We begin by noting that, absent a showing of an abuse of discretion, a trial court's finding of insufficient service of process must be affirmed." (Citation and punctuation omitted.) Palmer v. Constantin , 256 Ga. App. 233, 235 (3), 568 S.E.2d 79 (2002). "After [Lindsey] raised the defense of insufficiency of service of process, [the Bardins] [were] obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service." (Citation and punctuation omitted.) Id.

Here, as the trial court found in its order dismissing the case, the Bardins were on notice as early as April 2019 when Lindsey filed his special appearance answer that Lindsey had raised the defense of insufficiency of service of process. Additionally, the trial court specifically found in its order denying the Bardins’ motion for partial summary judgment that "[t]here was not sufficient evidence as to the identity of the "Black Female" that was served or that the individual was of suitable age and discretion residing at the home. The Affidavit of service does not establish proper service on [Lindsey]."³ The record shows that the Bardins made no effort after the trial court denied summary judgment to have Lindsey properly served. Under these circumstances where the record fails to show that the Bardins acted with the greatest possible diligence in serving Lindsey, we find that the trial court did not abuse its discretion by dismissing this case due to insufficient service of process. See Moody v. Gilliam , 281 Ga. App. 819, 820, 637 S.E.2d 759 (2006) ; Palmer , 256 Ga. App. at 235 (3), 568 S.E.2d 79.

Judgment affirmed.

Senior Appellate Judge Herbert E. Phipps concurs in judgment only and McFadden, P. J. dissents.

McFadden, Presiding Judge, dissenting.

The Bardins had a right to the discovery that they needed to respond to Lindsey's motion to dismiss for insufficient service of process. OCGA § 9-11-12 (j) (4). The trial court ignored that right when she granted that motion. In ignoring that right, the trial court erred as a matter of law. Her order must be vacated, and the case must be remanded for the trial court to apply the correct law. So I respectfully dissent.

But for that relatively recent addition to the Civil Practice Act, this would be a hard case. Under OCGA § 9-11-36 (a) (2), a defendant has no duty to respond to discovery until 45 days after service is perfected, unless the trial court shortens the time. So when there is a dispute about whether service has been perfected, there is also a question about whether those 45 days have started to run.

OCGA § 9-11-12 (j) (4) moots that question. It provides that a party responding to a motion to dismiss for failure to perfect service "shall" be entitled to limited discovery.

If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), [which concerns insufficiency of service of process,] or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion.

OCGA § 9-11-12 (j) (4).

Here appellee Lindsey filed a Special Appearance Answer, in which he "plead[ed] the affirmative defenses of statute of limitations, lack of service, service of process, personal jurisdiction, subject matter jurisdiction, and venue" on April 4, 2019. On June 10, 2019 the Bardins served on Lindsey's counsel a set of requests for admission that focused on service of process.

Lindsey did not respond until July 19, 2019. And the response he eventually did give — "Denied until such time as the undersigned counsel can contact Defendant," — was a non-answer expressly prohibited by the statute. "An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny." OCGA § 9-11-36 (a) (2). "The admission that arises from a failure to respond to a request for admission in the required time frame arises by operation of law, without the necessity of court action." Monolith Companies v. Hunter Douglas Hospitality , 333 Ga. App. 898, 900, 777 S.E.2d 726 (2015). In reliance on those admissions, the Bardins moved for partial summary judgment on the issue of service.

But the trial court denied the motion holding that, "as it has not been demonstrated that there has been proper service in this case, [Lindsey] did not fail to respond in a timely manner to the Request for Admissions and other discovery requests." That holding is not contrary to the text of OCGA § 9-11-12 (j) (4) because that provision is activated by the filing of a specified motion to dismiss.

But that holding is nevertheless troubling. The trial court chose to disregard a substantial showing under oath and on the basis of information the Bardins had secured from the postmaster and motor vehicle registration records, that Lindsey did indeed reside with his grandmother at the home where the alleged service was made, that his grandmother's car was parked there at that time, and so that the woman who spoke to the process server from an upstairs window was in fact Lindsey's grandmother. Lindsey, on the other hand, relies on a naked allegation.

But we need not consider whether the trial court overstepped her broad discretionary and factfinding authority. Nor do we need to consider whether the fact that Lindsey sought discovery from the Bardins bars him from withholding discovery.

The focus of our decision today is a motion to dismiss that falls squarely within OCGA § 9-11-12 (j) (4). After the Bardins’ motion for partial summary judgment was denied, Lindsey filed a motion to dismiss for lack of service. So the Bardins were entitled to the benefit of OCGA § 9-11-12 (j) (4) : parties responding to such motions "shall be" allowed "limited discovery." But the trial court granted the motion without considering Lindsey's failure to answer the Bardins’ request for admission and without addressing other unanswered discovery requests or ruling on other motions to compel.

In a footnote, the majority holds that Lindsey's responses to the Bardins’ discovery are irrelevant because he "had no obligation whatsoever to respond...." In support of this holding, the majority cites Palmer v. Constantin , 256 Ga. App. 233, 235 (2), 568 S.E.2d 79 (2002). That is error. Palmer was decided before the 2009 enactment of OCGA § 9-11-12 (j) (4). So Palmer is no longer good law on the...