July 11, 2014
GEORGIA DEPARTMENT OF JUVENILE JUSTICE
Reconsideration denied July 31, 2014 -- Cert. applied for.
Open Records Act. DeKalb Superior Court. Before Judge Flake.
Thomas Kennedy Sampson & Tompkins, Thomas G. Sampson II, pro se.
Samuel S. Olens, Attorney General, Angelique B. McClendon , Assistant Attorney General, for appellee.
DILLARD, Judge. Miller, J., concurs. Doyle, P. J., concurs fully in Division 1 and concurs in judgment only as to Division 2.
Thomas G. Sampson II (" Sampson" ) appeals the trial court's grant of the Georgia Department of Juvenile Justice's (" DJJ" ) motion to dismiss his complaint alleging violations of the Georgia Open Records Act. Sampson contends that the trial court erred in (1) finding that res judicata barred his complaint, (2) finding that the complaint should be dismissed for insufficient service, and (3) failing to find an ongoing violation of the Open Records Act and, instead, concluding that same was irrelevant as to whether res judicata barred the action. Because we agree with Sampson that the trial court erred in dismissing his complaint, we reverse.
[328 Ga.App. 734] The record reflects that Sampson filed suit against the DJJ, alleging violations of the Open Records Act with regard to more than 20 requests for records from different juvenile-detention centers. Sampson asked that the trial court issue an injunction ordering production of the requested documents, a declaration that the DJJ's alleged failure to respond was unlawful, as well as an award of attorney fees and expenses.
The DJJ filed a special appearance and motion to dismiss, in which it contended that Sampson was the attorney who represented plaintiffs in a virtually identical action against a DJJ staff attorney with regard to the very same Open Records Act requests, which had previously been dismissed by the trial court. The DJJ contended that, as the attorney for the prior plaintiffs, Sampson was on notice for more than 30 days prior to the dismissal order in the previous action that the plaintiffs lacked standing to bring the claim and that the DJJ staff attorney was an improper party. The trial court ultimately found the same in its decision to dismiss the prior action, concluding that the action was initiated " without substantial justification." Accordingly, the DJJ argued that Sampson's action was barred by res judicata. The DJJ further contended that the action should be dismissed for failure to properly serve the DJJ, as well as for failure to state a claim upon which relief could be granted.
The trial court granted the DJJ's motion to dismiss Sampson's action, finding that res judicata applied to bar the action and that Sampson failed to properly serve the DJJ. Sampson now appeals the trial court's dismissal of his action, which we review de novo.
1. Sampson first contends that the trial court erred in finding that the doctrine of res judicata barred his action because (1) there is no privity between the parties and (2) the cause of action is not identical. We agree that there is no privity between the plaintiffs in the prior action and the current action and, accordingly, res judicata cannot bar this lawsuit.
[328 Ga.App. 735] The record reflects that the prior action was brought by Quindarious Fleming and Demarko Moss against Andre Castaing in his official capacity as a staff attorney for the DJJ for alleged violations of the Open Records Act regarding the same record requests at issue here. It is undisputed that Fleming and Moss were represented by Sampson in that
action. And in granting Castaing's motion to dismiss, the trial court found that the record requests were made by Sampson and Demetra Ford, his co-counsel, and that no request indicated that it was made on behalf of Fleming or Moss. The trial court determined that the named plaintiffs in the prior action had interposed no Open Records Act requests and were instead " attempting to enforce requests interposed by other persons, more specifically, their attorneys in this action." Accordingly, the court concluded that because no existing law permitted a " derivative" prosecution of an Open Records Act request, the action required dismissal because Fleming and Moss lacked standing.
The trial court in the previous action went on to conclude that, even if Fleming and Moss had standing, they failed to sue the proper defendant, and, further, that " [d]espite the notice provided to them by Defendant's answer and motion to dismiss, [Fleming and Moss] [had] not sought to substitute a proper party plaintiff or defendant in this action in the more than thirty days that [had] since expired."  Thus, the trial court granted Castaing's motion to dismiss on May 1, 2013.
On May 14, 2013, Sampson filed the present action in the trial court with himself named as plaintiff and the DJJ named as defendant. And, as further described supra, the DJJ subsequently filed a motion to dismiss the complaint on, inter alia, the grounds of res judicata. The trial court granted the motion, which we now reverse.
In Georgia, OCGA § 9-12-40 represents a codification of the common-law doctrine of res judicata, and provides as follows:
A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to [328 Ga.App. 736] all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
And the purpose of this doctrine is to prevent the " re-litigation of claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action."  Thus, three prerequisites must be satisfied before res judicata acts as a bar to subsequent litigation, those being the identity of the cause of action, identity of the parties or their privies, and a previous adjudication on the merits by a court of competent jurisdiction. The party invoking the doctrine of res judicata, of course, bears the burden of proving the defense.
Here, despite the trial court's determination to the contrary, the first prerequisite has not been and cannot be established in this case. And as a result, the DJJ is unable to
satisfy its burden of proof on this affirmative defense because, on the very face of the prior adjudication (and by the trial court's own determination in dismissing the action), [328 Ga.App. 737] there is no privity between Sampson and the named plaintiffs in the prior suit. The trial court dismissed the prior action, inter alia, on the basis that Fleming and Moss lacked standing to pursue an alleged violation of the Open Records Act based on record requests made by Sampson.
And in looking to the identity of parties for purposes of res judicata, our Supreme Court has held that
it is not required that all the parties on the respective sides of the litigation in the two cases shall have been identical, but it is sufficient as to identity of parties if those by and against whom the defense of res judicata is invoked in the latter case were real parties at interest or privies as to the controversy in the former case.
Indeed, just as a State may not, consistent with the dictates of the Fourteenth Amendment to the United States Constitution, " enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard, so it cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party therein."  And while there is a recognized exception to this general rule when, " in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party,"  the trial court in [328 Ga.App. 738] the prior action determined that
Fleming and Moss could not represent any interest in that proceeding. As such, because the trial court made this determination, Fleming and Moss cannot be said to be in privity with Sampson, and res judicata does not bar Sampson's action in the case sub judice.
2. Sampson further contends that the trial court erred in dismissing his complaint due to insufficient process. The DJJ moved to dismiss Sampson's complaint on the ground that the service copy of the complaint lacked pages containing five paragraphs and the signature page with prayers for relief, and the trial court also granted dismissal on this ground pursuant to OCGA § 9-11-12 (b) (4).
To begin with, we note the distinction between OCGA § 9-11-12 (b) (4) and OCGA § 9-11-12 (b) (5), the former permitting dismissal for insufficient process and the latter for insufficient service of process. Neither the DJJ in its appellate brief nor the trial court in its order of dismissal cites to any case in support of the proposition that a motion to dismiss may be granted pursuant to OCGA § 9-11-12 (b) (4) when a service-copy of a complaint is missing pages. And this Court's own research has discovered no such authority. Instead, rather than deal with irregularities in a complaint, insufficiency of process challenges irregularities in the contents of the summons alone, whereas " insufficient service of process deals with the manner of [328 Ga.App. 739] delivery of summons and complaint."  At least insofar as federal courts are concerned, " [f]or sufficiency of process, a summons satisfies due process when it complies with the provisions of [Federal Rule of Civil Procedure Rule 4 (b)] or any other applicable provision that deals specifically with the content of the summons."  Accordingly, the trial court erred in granting the motion to dismiss on the ground of insufficient process when the DJJ made no allegation as to any insufficiency in the summons.
Nevertheless, service of an incomplete complaint can certainly constitute insufficient
service of process. Indeed, a defendant is required to admit or deny each allegation contained within a complaint, and when a defendant fails to clearly deny an allegation, the defendant is deemed to have admitted same. Suffice it to say, a defendant who does not possess a complete copy of the complaint cannot possibly admit or deny each allegation contained therein. Accordingly, it is certainly conceivable that service of an incomplete complaint amounts to insufficient service of process.
A court's finding of insufficient service of process is affirmed absent a showing of an abuse of discretion, and we will not disturb the trial court's findings if they are supported by any evidence. But [328 Ga.App. 740] when a defendant in a lawsuit challenges the sufficiency of service, the defendant bears the burden of showing improper service. And although a return of service provides prima facie proof of proper service, " it is not conclusive and may be traversed by proof that such facts are untrue."  Nevertheless, the 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." 
And here, as the party challenging the sufficiency of service of process, the DJJ was required to support its contention with such evidence. This, it did not do. To be sure, attached to DJJ's motion to dismiss was a copy of the service-copy complaint with missing pages; however, the DJJ did not attach an affidavit of the person who received service on its behalf. Accordingly, the DJJ did not submit sufficient evidence to show improper service of process, and we will not affirm the trial court's dismissal under the
For all of the foregoing reasons, we reverse the trial court's judgment.
Miller, J., concurs. Doyle, P. J., concurs fully in Division 1 and in judgment only as to Division 2.