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Anglin v. State Farm Fire & Casualty Insurance Co.

Court of Appeals of Georgia, First Division

January 10, 2019

ANGLIN
v.
STATE FARM FIRE & CASUALTY INSURANCE COMPANY.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Reese, Judge.

         Johnny S. Anglin ("the Appellant") appeals from the denial of his motion to set aside the trial court's entry of default judgment against him in an action for property damage initiated by State Farm Fire & Casualty Company (the "Appellee") as the subrogee of Barry L. Richman.[1] For the reasons set forth infra, we reverse.

         "We review a trial court's refusal to set aside a default judgment for an abuse of discretion, but review questions of law de novo."[2] So viewed, the record shows that the Appellee initiated the instant action on May 18, 2015, when it filed a complaint for negligence naming a single defendant, Richard Turnbull ("Turnbull"). Specifically, the Appellee alleged that Turnbull negligently caused damage to the real property of the Appellee's insured in the amount of $11,692.92. The summons was directed solely to Turnbull. On December 14, 2015, the Appellee filed an amended complaint naming the Appellant as an additional defendant. The Sheriff's entry of service stated that the Appellant had been personally served with a copy of the summons and complaint, as well as initial discovery requests, on May 6, 2016.

         On March 31, 2017, the Appellee moved for entry of default judgment as to the Appellant, alleging that the Appellant had failed to make an appearance or file any responsive pleadings in the action despite being properly served with a copy of the summons and complaint. In a supporting affidavit, the Appellee's attorney averred that "the Defendant(s)" had been served with a copy of the complaint on May 26, 2015. The affidavit referenced the Sheriff's Entry of Service, dated May 6, 2016. On April 10, 2017, the trial court entered a default judgment as to the Appellant, and in a separate order dismissed Turnbull with prejudice from the suit.

         The Appellant filed a motion seeking to set aside the default judgment, arguing that the Appellee failed to properly serve him in accordance with OCGA § 9-11-4 because he was not served with a summons addressed to him in the action. The Appellant asserted that, as a result, he was not required to respond to the Appellee's amended complaint, pursuant to OCGA §§ 9-11-8 and 9-11-15, and a nonamendable defect existed because the default judgment was entered on "an improper basis."

         Following a hearing, the trial court denied the Appellant's motion to set aside the default judgment. This appeal followed.[3]

A trial court is authorized to set aside a judgment based upon:
(1) Lack of jurisdiction over the person or the subject matter;
(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or
(3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.[4]

         Further, it is well settled that,

[u]nder 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 ...

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