November 29, 2021 – Partner Jay Eidex prevailed in the Court of Appeals in a case of first impression on a case that originated in the State Court of Fulton County. In that case, Plaintiff and Defendant were involved in an automobile accident on October 18, 2017. Plaintiff contended the Defendant ran a red light and turned left into his path causing a collision. Defendant disagreed and contended he had a green turn arrow and made a proper left turn indicating the Plaintiff was the party that ran a red light causing the collision. The Defendant was found to be at fault by the investigating officer and was cited. However, the Defendant disputed the citation in traffic court and it was dismissed. Plaintiff then filed suit alleging he sustained injuries in the accident in September of 2018. The Defendant resided out of State at the time and the court docked reflected that service was perfected by personal service upon his stepdaughter at his address in November, 2018. Defendant contended he never received the summons, did not know about the lawsuit and thus he did not file an Answer. Plaintiff moved for the entry of a default judgment and at a default hearing the Court awarded Plaintiff an award of $35,000. A copy of the default judgment was presented to Defendants insurer with a demand for payment. Defendant’s insurer then hired Mr. Eidex to defend him.
Mr. Eidex filed a Motion to set aside the default judgment on the basis that the notorious service upon the step daughter was invalid. Defendant contended that his step daughter suffered from a developmental disability that would not satisfy the “discretion” requirement under O.C.G.A. § 9-11-4(e)(7) that service be made on a resident of suitable age AND discretion. Defendant executed and affidavit attesting to the step daughter’s disability which was attached to the motion. After hearing, Judge Diane Bessen granted the motion and set aside the judgment for $35,000. The court further ordered that service had not been perfected in this matter and because the statute of limitations had expired that the Plaintiff was to properly serve the Defendant within 60 days of the order. The Plaintiff failed to secure service within the 60 days and Mr. Eidex then moved to dismiss for untimely service. Plaintiff moved the Court to allow Service by Publication on the basis that Defendant was evading service. Judge Bessen denied Plaintiff’s Motion for Service by Publication and granted Defendant’s Motion to Dismiss in its entirety and the Plaintiff Appealed contending that, 1. The trial Court Erred in setting aside the final judgment based upon the Defendant’s affidavit that his stepdaughter was not of suitable discretion and, 2. The trial Court erred in denying Plaintiff’s Motion for service by Publication.
The Court of Appeals noted that many cases existed regarding “suitable age” but none addressed “discretion.” They looked to Federal Courts which have defined that “[d]iscretion for service of process denotes the capacity and maturity to act wisely and prudently.” Boston Safe Deposit and Trust Co. v. Morse, 779 FSupp. 347, 350 (II) (S.D.N.Y. 1991). While service is presumed to be valid, the Court of Appeals noted that the presentation of the testimony of Brittian successfully rebutted that presumption and they affirmed Judge Bessen’s ruling. The Court of Appeals found Plaintiff’s enumeration of error regarding his Motion for Service by Publication to be without merit affirming Judge Bessen’s Order of Dismissal in the matter.
The full appellate opinion can be downloaded and read here or located at Watts v. Brittian, 866 S.E.2d 631 (Ga. Ct. App. 2021)
The original case is Telisha Teshell Watts v. Willie Charles Brittian, State Court of Fulton County, CAFN: 18-EV-004272.
