Youd v. Beskin

364 Ga.App. 333

874 S.E.2d 831

YOUD

v.BESKIN et al.

A22A0141

Court of Appeals of Georgia.

June 15, 2022

David M. Messer, Alpharetta, for Appellant.

James Conway Morton, Atlanta, for Appellee.

Reese, Judge.

The Superior Court of Fulton County entered a default judgment against Steven Youd ("Appellant") in favor of James and Elizabeth Beskin ("Appellees"), and Appellant filed a motion to open default. The trial court subsequently entered a final judgment against Appellant, and denied his motion to open default. This appeal followed. For the reasons set forth infra, we affirm in part and vacate in part, and remand this case with direction.

The record shows that Steven and Anna Youd (the "Youds") and Appellees shared a common boundary between their properties. In January 2016, the retaining wall on the Youds’ property collapsed, sending debris onto Appellees’ property. Although there were discussions concerning repairing the wall, when the Youds failed to take action, Appellees filed suit against the Youds on August 15, 2019.

Anna Youd was personally served on August 20, 2019, and she subsequently filed an answer and affirmative defenses. Upon learning that the Youds had divorced, Appellees attempted to serve Appellant at his separate address through private process servers in November 2019 and January 2020. However, the process servers were unable to serve Appellant, and an affidavit of due diligence from one server stated that Appellant appeared to be "evading service." Appellees also utilized the Fulton County Sheriff to serve Appellant, but the Sheriff's department stated that they were also unable to perfect service on Appellant despite several attempts.

In March 2020, Appellees filed an affidavit of service stating that Appellant was successfully served on March 16 when Appellant reported for trial at the Atlanta Municipal Court. The process server's affidavit stated that

[t]he court was closed but the[ court] did not have any information about the[ ] closure on the website so [the process server] waited to see if [Appellant] would show up. At 8:05 [a.m.], [the process server] saw a man who looked like the photo the [Appellees] had provided and [Appellant] also turned around when [the process server] said his name. When he saw that [the process server] had documents to give him he refused to take them from [the process server's] hand. [The process server] explained in a loud voice what the papers were for and left them at [Appellant's] feet.

The affidavit also described Appellant as a Caucasian male in his thirties weighing 170 pounds and standing five-foot-seven inches tall with brown hair.

The trial court "inadvertently" overlooked this filing by Appellees and entered an order directing that service be perfected upon Appellant within 30 days of the date of the order. Appellees filed a notice of service of process stating that service had been perfected on Appellant, and attached the previous affidavit of service attesting that Appellant had been served on March 16, 2020. Appellees then moved for default judgment against Appellant, which the trial court granted.

The trial court subsequently held a hearing on damages. Although Appellees and Anna Youd attended, Appellant did not participate. Following the hearing on damages and more than three months after the court's default judgment, Appellant filed a motion to open default. The trial court entered a final judgment against Appellant the next day, awarding Appellees damages totaling $667,593, as well as injunctive relief, and shortly thereafter, entered an order denying Appellant's motion to open default. The Appellant now appeals.

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.¹

When considering a trial court's ruling on a motion to open a default,

[i]t is not arguable as a proposition of law that the decision whether to open a default judgment falls squarely within the discretionary powers of the trial court granting or denying the same. The exercise of this discretionary power should not excite interference by a reviewing court unless the trial court manifestly abuses the discretion vested within it.²

"On appellate review of a bench trial, we must affirm the court's award of damages if there is any evidence showing with reasonable certainty the amount of damages. So long as the award is within the range of the evidence adduced, we will affirm the trial court's judgment."³ With these guiding principles in mind, we now turn to Appellant's claims of error.

1. Appellant argues that the trial court erred in entering a final judgment as it did not have personal jurisdiction over him due to Appellees’ failure to properly serve Appellant.

OCGA § 9-11-4 (e) states that "[e]xcept for cases in which the defendant has waived service, the summons and complaint shall be served together.... Service shall be made by delivering a copy of the summons attached to a copy of the complaint ... to the defendant personally[.]" When considering claims of a failure of service, this Court has held,

the question of whether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court. Indeed, a return of service is prima facie evidence of personal service, and it may only be set aside when the defendant presents evidence that is the strongest of which the nature of the case will admit. Furthermore, factual disputes regarding service of process are to be resolved by the trial court, and the court's findings will be upheld if there is any evidence to support them.⁴

Here, the process server hired by Appellees made multiple attempts to serve Appellant at his address and noted that it appeared Appellant was "evading service[.]" After these unsuccessful attempts, the record shows that the process server went to the Atlanta Municipal Court on a day Appellant was scheduled to appear, located a person fitting Appellant's description who responded to the Appellant's name, and when the individual refused to accept the documents, the process server left them at his feet. Although Appellant asserted in his affidavit that he was not at the court on the day in question, and that he was including as an exhibit correspondence from the court informing him that his hearing had been canceled, he did not attach any document supporting this assertion. Therefore, as the trial court is given deference to resolve factual disputes regarding issues surrounding the service of process, and there was some evidence supporting the fact Appellant was properly served, the trial court did not abuse its discretion.

Additionally, although Appellant cites Space Coast Credit Union v. Groce ,⁵ that case is distinguishable from the present matter. In Space Coast Credit Union , this Court upheld the trial court's ruling that service of process was not sufficient when a server went to the defendant's nursing home and left the documents on a table next to the defendant's bed while he was "in and out of consciousness[.]"⁶ In contrast, here the process server asserted that he saw a person fitting Appellant's description, that he informed him of "what the papers were for[,]" and that Appellant refused to accept them. Thus, Groce is distinguishable as here Appellant was alert and informed of the papers’ purpose. Therefore, we affirm the trial court's ruling.⁷

2. Appellant argues that the trial court erred in denying his motion to open default pursuant to OCGA § 9-11-55. Specifically, Appellant argues that the court should have opened the default because his failure to file an answer was due to a providential cause as he was never properly served.⁸

Under OCGA § 9-11-55(b), a prejudgment default may be opened on one of three grounds if four conditions are met.

The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.⁹

Here, Appellant's sole basis for opening the court's default was that he was never served. However, as discussed supra, the evidence supports the trial court's conclusion that Appellant was properly served in March 2020. As this rationale for Appellant's failure to respond to Appellees’ complaint has been found unpersuasive, and Appellant does not cite any other facts demonstrating that he was prevented from responding by some providential cause "over which [Appellant] or his attorney had no control,"¹⁰ we conclude that the trial did not manifestly abuse its discretion in denying Appellant's motion to open default.¹¹

3. Appellant argues that the trial court erred in issuing a final order awarding damages to Appellees that were vague, ambiguous, speculative and constituted a double recovery.

As an initial matter, we address Appellees’ argument that we should not consider this claim of error as Appellant did not raise these issues before the trial court, and the court did not have an opportunity to consider them. "As a rule, an appellate court will not consider arguments raised for the first time on appeal. But a claim that a verdict was an impermissible double recovery as a matter of law is an exception to this rule[.]"¹² Thus, we will examine Appellant's assertion that the trial court's final judgment contained impermissible double...