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Russell v. Muscogee County School District

Court of Appeals of Georgia, Fourth Division

April 13, 2017

RUSSELL
v.
MUSCOGEE COUNTY SCHOOL DISTRICT et al.

          DILLARD, P. J., RAY and SELF, JJ.

          Self, Judge.

         This case arose out of a collision between a car in which appellant, Roderick Russell, was a passenger and a school bus owned by the Muscogee County School District ("the MCSD") and driven by its employee, Richard Shores. Russell sued Shores alleging he was negligent in causing the collision and also sued the MCSD on the theory of vicarious liability and for negligent entrustment of a vehicle and negligent hiring. Following the entry of a default judgment against them, the MCSD and Shores (collectively "appellees") entered a special appearance and moved to dismiss the complaint, or in the alternative, open default based upon Russell's failure to effect proper service. The trial court granted the motion to dismiss and Russell appeals. For the reasons explained below, we affirm the portion of the trial court's order dismissing the complaint against Shores, but reverse the portion dismissing the complaint against the MCSD.

         On November 3, 2014, Russell filed this lawsuit against the MCSD and Shores, seeking damages for personal injuries arising out of an automobile accident that occurred on November 2, 2012.[1] On March 10, 2015, a court-appointed process server filed an affidavit of service attesting that on November 5, 2014, he served the MCSD by leaving a copy of the summons and complaint with "the assistant for the HR Department, 2960 Macon Road, Columbus, Georgia." On October 16, 2015, Russell filed a motion for entry of default on the ground that appellees failed to file an answer.

         On January 28, 2016, appellees filed an answer by special appearance and moved to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (4) and (5) or, in the alternative, open default based upon Russell's failure to effect proper service. In support of the motion, Shores submitted his own affidavit stating that as of January 28, 2016, he had not been served with the summons or complaint. Russell did not respond to the motion.[2] In their answer, appellees raised the defenses of insufficiency of process, service of process, and the running of the statue of limitation. On August 2, 2016, the trial court granted the motion to dismiss finding as follows:

Defendants having moved for dismissal of this action as to claims against them set forth by the Plaintiff, and it appearing that Plaintiff has neither responded nor objected to such dismissal, and said Motion having come before the Court with no response, and the Court having considered the Motion, and the Argument and Citation of Authority, hereby GRANTS [Defendants'] Motion. Therefore, the above-styled action is hereby DISMISSED.

         On August 30, 2016, Russell filed a "motion and brief to reconsider and vacate order granting defendants' motion to dismiss." Russell attached an amended affidavit of service to the motion, in which the court-appointed process server attested as follows:

On [November 5, 2014, ] I entered the [MCSD] building and was required to sign in at the front desk on the first level. I first asked the desk attendant where the proper place for the documents to be served would be and was told that I would need to go to the HR department. I was given a "physical pass" to enter the building and instructed where to go. I went to the 2nd floor and reported to the receptionist's desk. I explained that I had legal documents to serve to the [MCSD] and was advised that. . . she would need to call someone to find the proper place for them to go, while I waited. I watched as the receptionist called someone and could hear over the phone the person state that I could just leave it with them at the front desk. I was then told that I could leave the documents with her. I was given a name of the Deputy Superintendent, Becky Braaten, that the document would end up going to. I further believed that was who the receptionist was speaking to. Because I entered into a secured building with multiple levels of security and I was not able to just walk in and meet with the Deputy Superintendent and I was forced to follow the instructions of the office protocol, I left the documentation with the receptionist. I fully believe that this was the process that the HR department followed and replicated. Everyone including the downstairs desk attendant knew where and whom the documentation went to. The receptionist and the person that she was speaking to was made aware of the documentation and what it was in reference to and [its] meaning.

         The process server further stated that on August 15, 2016, he returned to the MCSD to serve a copy of the same package of documents in this case and was told by the receptionist in the "HR department" that, following a phone a call, she had been instructed to accept the paperwork and would pass it on to "Mrs. Tracey Fox, Director of Risk Management for the [MCSD]."

         On August 31, 2016, Russell filed a supplemental brief in support of motion to reconsider and vacate order granting defendants' motion to dismiss. In that brief, Russell pointed out the MCSD admitted proper service in a companion case, which was served by the same court-appointed process server with a near-identical return of service: "On [September 22, 2014]. . . I personally served [MCSD] a copy of the summons and complaint. . . to defendant by leaving a copy with assistant for Hr. Dept. 2960 Macon Road, Columbus, Georgia."[3] On September 1, 2016, before the trial court could rule on the motion for reconsideration, Russell filed a notice of appeal from the trial court's order granting appellees' motion to dismiss.

         1. In two related enumerations, Russell contends that the trial court erred in dismissing the complaint under OCGA § 9-11-12 (b) (4) and (5) because there was no deficiency in the process issued in this case and no insufficiency of service of that process. In their brief, appellees concede the first contention, noting that "[i]t is the service of the [c]omplaint and summons that was invalid." Accordingly, we need only address the issue of the sufficiency of service in this case.

         "When a defendant in a lawsuit challenges the sufficiency of service, that defendant bears the burden of showing improper service. The return 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." (Citations and punctuation omitted.) Franchell v. Clark, 241 Ga.App. 128, 130 (3) (524 S.E.2d 512) (1999). "The. . . return of service constitutes prima facie proof of the facts recited therein, but it is not conclusive and may be traversed by proof that such facts are untrue. . . . Whether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court." (Citation and punctuation omitted.) Webb v. Tatum, 202 Ga.App. 89, 91 (413 S.E.2d 263) (1991). This Court will not disturb those findings when supported by any evidence. Franchell, supra.

         (a)At the outset, we note that there is absolutely no evidence in the record that Shores was served. On the contrary, Shores affirmed that as of January 28, 2016, - 14 months after the complaint was filed in this case - he still had not been served with the summons or complaint. Accordingly, the trial court ...


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