Reconsiderations denied February 3, 2015 -- Cert. applied for.
Service of process. Clayton Superior Court. Before Judge Benefield.
David E. Ralston, Sams, Larkin, Huff & Balli, James A. Balli, Justin H. Meeks, for appellant.
Freeman Mathis & Gary, Jack R. Hancock, Sun S. Choy, Seth F. Kirby, for appellees.
ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.
Ellington, Presiding Judge.
Michael Hooks filed this personal injury action against McCondichie Properties 1, LP, and McCondichie Properties 2, LP, collectively (" McCondichie" ) in the Superior Court of Clayton County. He served the Secretary of State of Georgia, and obtained a default [330 Ga.App. 584] judgment. McCondichie filed a motion to set aside the default judgment. The trial court determined that Hooks was authorized to serve McCondichie by substituted service upon the Secretary of State but that Hooks failed to perfect such service in the statutorily prescribed manner. On that basis, the trial court granted McCondichie's motion to set aside the default judgment. Pursuant to a granted application for an interlocutory appeal, both parties appeal.
In Case No. A14A2238, Hooks contends that the trial court erred in ruling that he failed to comply with the statutory requirements for substituted service upon a limited partnership. In Case No. A14A2333, McCondichie contends that the trial court erred in finding in the first instance that substituted service upon the Secretary of State was authorized. Based on this argument, McCondichie contends that, even if the trial court erred in ruling that Hooks failed to comply with the requirements for substituted service, such error was moot and the order granting its motion to set aside the default judgment nevertheless must be affirmed. For the reasons explained below, we hold that the trial court erred in setting aside the default judgment and reverse.
Under Georgia law, when the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the any evidence rule, and absent an abuse of discretion, we will not reverse a trial court's refusal to set aside a judgment.
(Footnote omitted.) Stokes & Clinton, P.C. v. Noble Systems Corp., 318 Ga.App. 497, 498 (734 S.E.2d 253) (2012). However, where the facts are undisputed and the question is one of law, we review the ruling de novo. Guthrie v. Wickes, 295 Ga.App. 892, 892 (673 S.E.2d 523) (2009).
So viewed, the facts relevant to both appeals are as follows: In his complaint, Hooks alleged that he was injured while on duty as a police officer, responding to a burglary call at property owned by McCondichie. On August 5, 2013, Hooks sent McCondichie a demand letter through its registered agent, James Tenney, at the address McCondichie had provided to the Secretary of State for its registered office. McCondichie acknowledged having received the demand letter. Further, McCondichie's insurer notified Hooks' counsel that it was investigating the claim. Hooks filed suit against McCondichie on December 12.
On December 30, 2013 and on January 6, 2014, Hook's process server attempted to serve the complaint on McCondichie through Tenney at the registered office address. Neither Tenney's name nor [330 Ga.App. 585] the name of his law firm was displayed at that address either on the outside of the building or inside the lobby. The address was for an executive office suite, and the receptionist at the front desk was answering calls for several different companies. When the process server asked the receptionist to notify Tenney that a complaint needed to be served, she took no action to call anyone; instead, she " immediately stated that [Tenney] was 'out of the office.' " To the process server, the office appeared to be a ...