HALL et al.
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
McFadden, Presiding Judge.
appeal is from the denial of a motion to set aside a default
judgment. The trial court entered the default judgment
against Turfstore.Com, Inc., over Turfstore's objection.
Turfstore contends that it was not properly served and so the
judgment against it is unsustainable. We agree that the
default judgment cannot stand.
purported service was undertaken in reliance on OCGA §
14-2-1510 (b), which is for out-of-state corporations without
a registered agent. That purported service was delivery of
the summons and complaint by UPS to one of Turfstore's
competitors, which forwared them to Turfstore more than three
months later. Turfstore filed its verified answer seven days
after receiving them.
assume without deciding that Turfstore did not have a
registered agent and so that the OCGA § 14-2-1510 (b)
procedure was available. Having made that assumption we turn
to OCGA § 14-2-1510 (c), which specifies three possible
occasions when service under subsection (b) is deemed
perfected. Two of those possibilities are plainly foreclosed.
There is no "return receipt . . . signed on behalf of
[Turfstore.]" See OCGA § 14-2-1510 (c) (2). And
Turfstore was not served by United States mail. See OCGA
§ 14-2-1510 (c) (3). The remaining possibility is
"[t]he date [Turfstore] receive[d]" the summons and
complaint. OCGA § 14-2-1510 (c) (1). But Turfstore
answered seven days after that date. So it did not default.
Facts and procedural history.
facts are undisputed - although the parties disagree about
whether Turfstore had a registered agent. The underlying
dispute is about two commercial leases under which Turfstore
was a tenant. Plaintiffs, Shelley Hall (in her role as
administrator with will annexed of John Wayne Hall) and Wilma
Jean Erwin, were the landlords. Turfstore notified Hall and
Erwin that it would be ending the leases as of June 30, 2017,
leading to a dispute between the parties about the terms of
the leases. Turfstore ultimately vacated the properties and
stopped paying rent. Turfstore had listed those premises with
the Secretary of State as the address for its registered
agent, and it apparently did not update that listing.
September 13, 2017, Hall and Erwin filed a verified complaint
alleging that Turfstore breached the terms of the leases and
seeking over $1.8 million in liquidated damages. Taking the
position that Turfstore, a Delaware corporation, lacked a
registered agent in Georgia, Hall and Erwin stated in their
complaint that they would serve Turfstore under OCGA §
14-2-1510 (b), which provides a means of service upon a
foreign corporation if the corporation either "has no
registered agent or its registered agent cannot with
reasonable diligence be served[.]" Id.
and Erwin attempted to serve Turfstore with the summons and
complaint using a commercial firm, UPS. See OCGA §
14-2-1510 (b) (permitting service by statutory overnight
delivery, among other methods). See also OCGA § 9-10-12
(b) (1) (statutory overnight delivery includes delivery
through certain commercial firms). The UPS package was
shipped on September 15, 2017, to the premises at issue,
which was the address listed as Turfstore's principal
office address on its January 2017 annual registration filed
with the Georgia Secretary of State. So Hall and Erwin, and
their counsel, apparently were aware that Turfstore was no
longer at that address.
Turfstore was no longer at that address, UPS was unable to
deliver the package to it. Instead, UPS delivered the package
to a different business at a different address. That
business, TurfNation, was not affiliated with Turfstore. A
TurfNation employee received the package on September 19,
2017, and forwarded it to Turfstore on January 4, 2018.
January 3, 2018, the day before Turfstore received that
package containing the summons and complaint from TurfNation,
Hall and Erwin filed a motion asking the trial court to grant
them a default judgment on the ground that they had perfected
service upon Turfstore on September 15, 2017, when UPS took
custody of the summons and complaint, and that Turfstore had
not filed either an answer or other responsive pleading. On
January 11, Turfstore filed both a verified answer and a
brief opposing the entry of a default judgment. Among other
things, Turfstore denied that it had breached the leases,
argued that it had not been properly served with the
complaint, and contested the plaintiffs' assertion that
it lacked a registered agent.
trial court entered a default judgment against Turfstore on
February 15, 2018, reasoning that Turfstore had "made no
appearance or defense in the [case] and [that] service ha[d]
been perfected according to law, more than forty-five days
ha[d] elapsed[, ] and the case [was] in default[.]" The
trial court made no express finding about whether Turfstore
had a registered agent in the order. The trial court also did
not refer either to Turfstore's answer or to its filing
opposing the default judgment in the order. Turfstore appeals
from the entry of the default judgment, arguing that the
ruling was error because Turfstore was not properly served
and, alternatively, that the trial court should have opened
Service of process.
the argument that the trial court should have opened default,
Hall and Erwin correctly note that the issue would need to be
addressed by the trial court in the first ...