309 Ga. 66 FINAL COPY
S19G0931. CROWDER v. STATE OF GEORGIA.
WARREN, Justice.
This case stems from an October 2016 incident at the Atlanta
airport during which law enforcement officers seized $46,820 in cash
from Shara Cumins, James Crowder’s daughter. In the ensuing in
rem forfeiture proceeding under OCGA § 9-16-12, the trial court
awarded Crowder the property. The Court of Appeals, however,
reversed. See Crowder v. State of Ga., 348 Ga. App. 850 (823 SE2d
384) (2019). We granted certiorari to consider two questions:
In an in rem forfeiture proceeding, may the forfeiture complaint be served by publication in the first instance when an interest holder resides out of state?
Must a trial court rule on a pending motion for more definite statement before striking a claimant’s answer as insufficient?
As to the first question, we conclude that the Court of Appeals
properly interpreted OCGA § 9-16-12 (b) (3) as permitting service by
publication in an in rem forfeiture proceeding if the owner of the subject property resides outside of Georgia, and properly rejected
Crowder’s claims that personal service was required and that the
State’s complaint should have been dismissed based on its failure to
personally serve him. Nevertheless, and as explained more below,
the Court of Appeals must remand the case to the trial court for it
to address Crowder’s claim that the State’s service by publication
did not satisfy due process. As for the second question, we conclude
that OCGA § 9-16-12 (c) (2) requires a trial court to first rule on a
motion for a more definite statement before dismissing a claimant’s
answer. Because the Court of Appeals implicitly answered this
question in the negative, we reverse this portion of the Court of
Appeals’s judgment.
1. Background.
(a) The facts of the case are accurately recounted in the Court
of Appeals’s opinion and some of the key facts are recounted below.
See Crowder, 348 Ga. App. at 850-853. After law enforcement
officers seized $46,820 in cash from Cumins, the State filed an in
rem complaint for forfeiture against the property in December 2016 and named Cumins as a potential owner of the property. See OCGA
§ 9-16-12 (a); § 9-16-12 (b) (1). Cumins, however, maintained that
the cash that had been seized from her at the airport belonged to
Crowder, and she was later dismissed from the case. In February
2017, the State amended its forfeiture complaint, naming Crowder,
who was a resident of Alabama, as a potential owner. The State
attempted to personally serve Crowder but was unsuccessful.
Thereafter, in April 2017, the State obtained an order for service by
publication under OCGA § 9-16-12 (b) (3), which provides that, if an
“owner or interest holder is unknown or resides out of this state . . .
a copy of the notice of the complaint for forfeiture shall be published
once a week for two consecutive weeks in the legal organ of the
county in which the complaint for forfeiture is pending.”1 Under
1 OCGA § 9-16-12 (b) (3) provides in full:
If real property is the subject of the complaint for forfeiture or the owner or interest holder is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself so as to avoid service, a copy of the notice of the complaint for forfeiture shall be published once a week for two consecutive weeks in the legal organ of the county in which the complaint for forfeiture is pending. Such publication shall be deemed notice to any and all persons having OCGA § 9-16-12 (c) (1), Crowder had 30 days from the “date of final
publication” on April 26, 2017, to file an answer, but he did not file
one until December 29, 2017.
Meanwhile, on December 6, 2017, in a pleading styled a
“motion for judgment on the pleadings,” the State contended that
Crowder had failed to answer the complaint within 30 days of the
date of final service by publication and that it was therefore entitled
to default judgment under OCGA § 9-16-12 (e) and OCGA § 9-11-55.2
On December 29, Crowder filed an unverified answer, admitting
that he was the owner of the property but contending that he had
not been properly served with the State’s forfeiture complaint. On
January 4, 2018, the State filed a motion for a more definite
an interest in or right affected by such complaint for forfeiture and from any sale of the property resulting therefrom, but shall not constitute notice to an interest holder unless that person is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself to avoid service.
2 OCGA § 9-16-12 (e) provides that “[i]f at the expiration of the period set
forth in subsection (c) of this Code section no answer has been filed, the state attorney may seek a default judgment as provided in Code Section 9-11-55[.]” statement under OCGA § 9-16-12 (c) (2), contending that Crowder’s
answer failed to meet the requirements of OCGA § 9-16-12 (c) (1).3
In its motion for a more definite statement, the State did not move
to dismiss Crowder’s answer for failure to comply with the
requirements of paragraph (c) (1).
On January 9, 2018, Crowder moved to dismiss the State’s
complaint on the ground that the State had not personally served
him, as he claimed was required by OCGA § 9-16-12 (b) (2), and that,
even if service by publication were permitted, it did not comport with
due process principles under the circumstances of this case.
At a hearing in January 2018, Crowder testified that the cash
that had been seized belonged to him; that he received it in lump
3 Paragraph (c) (1) of OCGA § 9-16-12 provides that “[a]n answer shall
be verified by the owner or interest holder under penalty of perjury” and that it shall set forth the claimant’s name and address; a “description of the claimant’s interest in the property”; a “description of the circumstances of the claimant’s obtaining an interest in the property and, to the best of the claimant’s knowledge, the date the claimant obtained the interest and the name of the person or entity that transferred the interest to the claimant”; the “nature of the relationship between the claimant and the person who possessed the property at the time of the seizure”; and a “copy of any documentation in the claimant’s possession supporting his or her answer.” See OCGA § 9-16-12 (c) (1) (A-F). sums from social security disability and from a settlement from an
accident; and that he kept it in his trailer next to his home until he
gave it to Cumins to use to buy a home in California. In March 2018,
the trial court issued its final order without mentioning the three
motions filed by the parties. The court ruled that the State was
required to personally serve Crowder and that the “record is void of
[Crowder] receiving proper service by the State.” But instead of
dismissing the State’s complaint based on a lack of proper service,
the court moved forward to address the merits of the forfeiture
proceeding and concluded that the State failed to show that the
property was being used for an illegal purpose. As a result, the trial
court awarded the property to Crowder.
(b) The State appealed the trial court’s ruling to the Court of
Appeals, and Crowder filed a cross-appeal. The Court of Appeals
rejected Crowder’s claim that the trial court should have granted his
motion to dismiss the State’s complaint based on insufficient service
of process. Crowder, 348 Ga. App. at 856-857. It held that the plain
terms of OCGA § 9-16-12 (b) (3) permitted service by publication “if the owner of the subject property ‘resides out of this state,’” and that
“the State’s ability to serve a claimant who resides out of state via
publication is not contingent upon whether it first exercised due
diligence to serve such a claimant personally.” Id. at 857.
It also held that “Crowder’s answer failed to comply with the
special pleading requirements of OCGA § 9-16-12 (c) (1)” and that,
“accordingly, the trial court erred in denying the State’s motion for
judgment on the pleadings or, alternatively, in failing to dismiss
Crowder’s answer.” Crowder, 348 Ga. App. at 855. Under this
ruling, the State would be entitled to a judgment in its favor upon
the return of the case to the trial court. We granted certiorari,
asking the parties to address the two questions outlined above.
2. We first address whether OCGA § 9-16-12 (b) (3) permits
service by publication in the first instance on “owner[s] or interest
holder[s]” who reside out of state, and conclude that it does.
OCGA § 9-16-12 (b) (1) provides that “[a] copy of the complaint
and summons shall be served on any person known to be an owner
or interest holder and any person who is in possession of the property.” Paragraph (b) (2) of OCGA § 9-16-12 then provides that
“[i]ssuance of the summons, form of the summons, and service of the
complaint and summons shall be as provided in subsections (a), (b),
(c), and (e) of Code Section 9-11-4.”4 Finally, OCGA § 9-16-12 (b) (3)
provides:
If real property is the subject of the complaint for forfeiture or the owner or interest holder is unknown or resides out of this state or departs this state or cannot after due diligence be found within this state or conceals himself or herself so as to avoid service, a copy of the notice of the complaint for forfeiture shall be published once a week for two consecutive weeks in the legal organ of the county in which the complaint for forfeiture is pending. . . .
To determine whether service by publication is permissible
under our in rem forfeiture statute, “we first look to the text because
[a] statute draws its meaning . . . from its text.” Fed. Deposit Ins.
4 Of particular importance here is that subsection (e) of OCGA § 9-11-4
sets forth rules regarding personal service. We note that the State could have utilized the methods of service set forth in OCGA § 9-11-4, but did not do so, relying instead on the service provisions of OCGA § 9-16-12. See OCGA § 9- 11-4 (k) (“The methods of service provided in this Code section may be used as alternative methods of service . . . in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.”). Corp. v. Loudermilk, 305 Ga. 558, 562 (826 SE2d 116) (2019)
(citation and punctuation omitted). Moreover, “because we presume
that the General Assembly meant what it said and said what it
meant when it comes to the meaning of statutes, we must read the
statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.” Id. (citations and
punctuation omitted). The “common and customary usages of the
words” are important and, “in cases like this one, include the usual
and customary meaning of terms as used in a legal context.” Id.
(citation and punctuation omitted). “For context, we may look to
other provisions of the same statute, the structure and history of the
whole statute, and the other law — constitutional, statutory, and
common law alike — that forms the legal background of the
statutory provision in question.” Id. (citation and punctuation
omitted).
(a) In determining the meaning of OCGA § 9-16-12 (b) (3), the
Court of Appeals examined only the text of paragraph (b) (3) itself
to conclude that the text of OCGA § 9-16-12 (b) (3) “plainly shows that it allows for service by publication if the owner of the subject
property ‘resides out of this state.’” Crowder, 348 Ga. App. at 857.
We agree that the plain language of OCGA § 9-16-12 (b) (3) allows
for service by publication where, as here, the owner of property
subject to an in rem forfeiture proceeding “resides out of this state.”
Crowder argues, however, that an examination of the statutory
context requires a different interpretation. Under his reading,
OCGA § 9-16-12 (b) (3) must be considered alongside OCGA § 9-16-
12 (b) (2). Specifically, he argues that because paragraph (b) (3) says
only that “notice of the complaint” shall be published and does not
say that “service may be made by publication” — whereas OCGA §
9-16-12 (b) (2) explicitly says that “service of the complaint and
summons shall be as provided” by the personal service provision of
the Civil Practice Act, OCGA § 9-11-4 (e) — personal service is
required in all in rem forfeiture proceedings under OCGA § 9-11-4
(e). (Emphasis supplied.) Relatedly, he argues that because OCGA
§ 9-16-12 (b) (3) is merely a notice provision — not a service provision
— the State must also provide notice by publication in all in rem forfeiture cases.
Crowder is correct that OCGA § 9-16-12 (b) (3) does not use the
phrase “service by publication” or some variation thereof. However,
viewing the text and structure of the statute as a whole, Loudermilk,
305 Ga. at 562, we conclude that OCGA § 9-16-12 (b) (3) is a “service
by publication” provision.
To begin, OCGA § 9-16-12 (b) (1) indicates that subsection (b)
governs service for in rem forfeiture proceedings, providing that “[a]
copy of the complaint and summons shall be served on any person
known to be an owner or interest holder[.]” (Emphasis supplied.) In
that vein, OCGA § 9-16-12 (b) (2) generally requires personal service
for forfeitures involving owners or interest holders. Paragraph (b)
(3) of OCGA § 9-16-12 then provides an exception to OCGA § 9-16-
12 (b) (2), saying that, if an “owner or interest holder is unknown or
resides out of this state,” “a copy of the notice of the complaint for
forfeiture shall be published once a week for two consecutive weeks
in the legal organ of the county in which the complaint for forfeiture
is pending.” OCGA § 9-16-12 (c) (1) also provides important context for interpreting paragraph (b) (3). To that end, paragraph (c) (1)
specifies that the time for filing an answer, “[i]f service is made by
publication,” is “within 30 days of the date of final publication.”
OCGA § 9-16-12 (c) (1) (emphasis supplied). The only two provisions
of the in rem forfeiture statute that mention publication are OCGA
§ 9-16-12 (c) (1) and § 9-16-12 (b) (3). Read together, those
paragraphs make clear that OCGA § 9-16-12 (b) (3) addresses
service by publication, just as OCGA § 9-16-12 (b) (2) addresses
personal service.5
Indeed, the structure of OCGA § 9-16-12 shows that
paragraphs (b) (2) and (b) (3) set forth alternative methods of service
5 The Black’s Law Dictionary definition of “service,” as well as our case
law, also support our conclusion that notice by publication can also constitute service under the statute. See Black’s Law Dictionary (11th ed. 2019) (defining “service” as “[t]he formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation.”) (emphasis supplied). Accord Ga. Pines Community Svc. Bd. v. Summerlin, 282 Ga. 339, 340 (647 SE2d 566) (2007) (explaining that “[i]n statutes regarding ‘service of process,’ the word ‘service’ is a term of art referring to the ‘formal delivery of a writ, summons, or other legal process’” and that the “‘formal delivery’ may be accomplished by . . . publication depending on the circumstances”); Cascade Parc Property Owners Assn. v. Clark, 336 Ga. App. 94, 95 (783 SE2d 692) (2016) (explaining that “[t]he purpose of Georgia’s service laws is to give the defendant fair notice of the lawsuit against him”). for in rem forfeiture proceedings. First, by beginning with the word
“[i]f,” the text of paragraph (b) (3) indicates that the type of service
set forth in that paragraph creates an exception to the personal
service requirement set forth in paragraph (b) (2). Second, under
OCGA § 9-16-12 (c) (1), an owner or interest holder who has been
served personally under paragraph (b) (2) has “30 days after the
service” to file an answer, whereas an owner or interest holder who
has been served by publication under paragraph (b) (3) and not
personally served has a different timeline for answering: “within 30
days of the date of final publication.” OCGA § 9-16-12 (c) (1). If —
as Crowder urges — personal service were required in every in rem
case involving every “owner or interest holder,” irrespective of
whether they reside inside or outside of Georgia, then OCGA § 9-16-
12 would only need to provide a uniform, 30-day deadline from the
date of service in which to file an answer, and the third sentence of
OCGA § 9-16-12 (c) (1) would be meaningless.6 But we have
6 The portion of OCGA § 9-16-12 (c) (1) that addresses the time to file an
answer when “service is made by publication and personal service has not been emphasized in our precedents that “we do not read a statute in a
way that ‘renders any part of the statute meaningless.’” Deal v.
Coleman, 294 Ga. 170, 174 n.10 (751 SE2d 337) (2013) (citation
omitted). Accordingly, we reject Crowder’s argument that OCGA §
9-16-12 requires the State to provide personal service and service by
publication in all in rem forfeiture proceedings.
(b) Crowder also points to OCGA § 9-16-13, Georgia’s in
personam forfeiture statute, to argue that OCGA § 9-16-12,
Georgia’s in rem forfeiture statute, requires both personal service
and service by publication. We again disagree.
made” appears to contemplate situations where there will be both service by publication and personal service. That is the result of the nature of in rem proceedings against real property. OCGA § 9-16-12 (a) requires that “the property which is the subject of the complaint for forfeiture . . . be named as the defendant[,]” and OCGA § 9-16-12 (b) (3) provides that “[i]f real property is the subject of the complaint for forfeiture, . . . a copy of the notice of the complaint for forfeiture shall be published . . . .” Where an owner or interest holder of that real property resides in Georgia, OCGA § 9-16-12 (b) (2) requires that the owner or interest holder be personally served. Accordingly, in those situations, there will be service by publication and personal service on the owner or interest holder. By providing for the time to file an answer “[i]f service is made by publication and personal service has not been made,” OCGA § 9-16-12 (c) (1) exempts an owner of real property who resides in Georgia and was personally served from the extra time to file an answer afforded to persons who were served only by publication. OCGA § 9-16-13 (b) (1) and (2) provide that for in personam
forfeiture proceedings, “(1) [e]xcept as otherwise provided in this
Code section,” “service of the complaint and summons shall be as
provided by subsections (a), (b), (c), and (d) of Code Section 9-11-4[7];
and (2) [i]f the defendant is unknown or resides out of this state . . . ,
notice of the complaint for forfeiture shall be published once a week
for two consecutive weeks in the legal organ of the county in which
the complaint for forfeiture is pending. . . .” (Emphasis supplied.)
Crowder argues that the General Assembly used the “except” clause
at the beginning of OCGA § 9-16-13 (b) (1) to create in paragraph (b)
(2) an exception to the personal service requirement contained in
paragraph (b) (1), thus explicitly allowing service by publication
under the circumstances set forth in paragraph (b) (2). He further
argues that, by extension, because there is no “except” clause at the
beginning of OCGA § 9-16-12 (b) (2), the General Assembly must
7 For purposes of Crowder’s argument, we will assume that the reference
in OCGA § 9-16-13 (b) (1) to OCGA § 9-11-4 (d), which addresses waiver of service, is a typographical or clerical error in the statute, and that the reference should actually be to the personal service provisions of OCGA § 9-11-4 (e). have “carved out an exception for in personam cases that is not there
for in rem cases,” and that, as a result, the General Assembly must
have intended for both personal service and service by publication
to be required for in rem forfeiture proceedings.
But the word “and” between paragraphs (b) (1) and (b) (2) of
OCGA § 9-16-13 undermines Crowder’s interpretation, because it
suggests that “[i]f the defendant is unknown or resides out of this
state,” the in personam forfeiture statute should be read as
requiring compliance with OCGA §§ 9-16-13 (b) (1) and (b) (2). See
Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891, 895 (792 SE2d
680) (2016) (when different paragraphs of a statute are “set forth in
the conjunctive, compliance with each paragraph is required”).
Whatever the appropriate interplay is between the “except” clause
of OCGA § 9-16-13 (b) and the use of “and” between paragraphs (b)
(1) and (b) (2) of that Code section, we conclude that OCGA § 9-16-
13 (b) is sufficiently textually and structurally distinct from OCGA
§ 9-16-12 (b) that it does not provide context that alters our reading
of OCGA § 9-16-12 (b) that service by publication is permissible in in rem forfeiture proceedings if the “owner or interest holder . . .
resides out of this state.”
(c) Finally, Crowder argues that OCGA § 9-16-11 requires
OCGA § 9-16-12 (b) to be read to require personal service in all in
rem forfeiture cases. But OCGA § 9-16-11 only governs forfeitures
“[i]f the estimated value of personal property seized is $25,000.00 or
less,” OCGA § 9-16-11 (a), whereas the forfeiture proceeding must
begin by the filing of a complaint under OCGA § 9-16-12 in any in
rem proceeding in which the estimated value of the property exceeds
$25,000. We thus conclude that the service provisions of § 9-16-11
do not control the meaning of the service provisions of in rem
forfeiture proceedings under OCGA § 9-16-12 where, as here, the
property involved has a value greater than $25,000 and must
proceed by a complaint in superior court under OCGA § 9-16-12. See
OCGA § 9-16-2 (2) (a “‘[c]ivil forfeiture proceeding’ means a quasi-
judicial forfeiture initiated pursuant to Code Section 9-16-11 or a
complaint for forfeiture initiated pursuant to Code Section 9-16-12
or 9-16-13”). (d) For the foregoing reasons, we conclude that the Court of
Appeals was correct to conclude that OCGA § 9-16-12 (b) (3) permits
the State to serve owners and interest holders in the first instance
by publication. This conclusion does not, however, end our inquiry.
That is because the plain-language interpretation of OCGA
§ 9-16-12 (b) (3) set forth above may well implicate constitutional
concerns regarding due process.8 To that end, we note that “the Due
Process Clause requires every method of service to provide ‘notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections.’” Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (108 SCt 2104, 100
LE2d 722) (1988) (quoting Mullane v. Central Hanover Bank &
8 In some cases, the canon of constitutional avoidance allows courts to
“‘choos[e] between competing plausible interpretations of a statutory text, resting on the reasonable presumption that the legislature did not intend the alternative which raises serious constitutional doubts.’” Nordahl v. State, 306 Ga. 15, 20 (829 SE2d 99) (2019) (quoting Clark v. Martinez, 543 U. S. 371, 381 (125 SCt 716, 160 LE2d 734) (2005)) (punctuation omitted). But we cannot rely on that canon to avoid the potential constitutional issue implicated by OCGA § 9-16-12 (b) (3), because we can identify only one plausible interpretation of that statute. Trust Co., 339 U.S. 306, 314 (70 SCt 652, 94 LEd 865) (1950)).
Similarly, we have explained that whether
a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding. Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.
Reynolds v. Reynolds, 296 Ga. 461, 462-463 (769 SE2d 511) (2015)
(quoting Abba Gana v. Abba Gana, 251 Ga. 340, 343 (304 SE2d 909)
(1983)).
In the trial court proceedings in this case, Crowder — citing
cases such as Abba Gana — claimed that the State’s service by
publication under OCGA § 9-16-12 (b) (3) did not comport with due
process principles.9 Because the trial court ruled that OCGA § 9-16-
12 required personal service on Crowder, however, it did not address
9 Crowder did not, however, expressly challenge the constitutionality of
OCGA § 9-16-12 (b) (3). Crowder’s due process claim. Crowder nonetheless raised the same
due process concerns in his appeal to the Court of Appeals. As a
result, when the Court of Appeals reversed the trial court and
concluded that service by publication was permitted under OCGA
§ 9-16-12 (b) (3), it should have remanded the case to the trial court
for it to consider Crowder’s due process claim. We therefore remand
the case to the Court of Appeals with direction to remand to the trial
court to consider Crowder’s due process arguments in the first
instance.10
3. We now turn to the second question presented: whether a
trial court must rule on a pending motion for more definite
statement before striking a claimant’s answer as insufficient. See
OCGA § 9-16-12 (c) (2). We answer that question “yes.”
OCGA § 9-16-12 (c) (2) provides that if the State’s attorney
10 The State argues that any failure of notice was cured because Crowder
had actual notice of the proceeding before the final hearing. However, we have held that a “defect in service [i]s not cured by the fact that defendants had actual knowledge that the [proceeding] had been filed against them.” Rehman v. Belisle, 294 Ga. 71, 71 (751 SE2d 97) (2013). determines that an answer fails to comply with the requirements of
OCGA § 9-16-12 (c) (1), “he or she may file a motion for a more
definite statement.” “. . . If the motion is granted and the order of
the court is not obeyed within 15 days after notice of the order, or
within such other time as the court may fix, the court may strike the
pleading to which the motion was directed or make such order as it
deems just. . . .” OCGA § 9-16-12 (c) (2).
The State concedes that this statutory text, read “in its most
natural and reasonable way,” Loudermilk, 305 Ga. at 562, permits
a trial court to strike the pleading to which the State’s motion is
directed only if the trial court grants the State’s motion and “the
order of the court is not obeyed within 15 days after notice of the
order, or within such other time as the court may fix.” OCGA § 9-
16-12 (c) (2). The Court of Appeals thus erred by concluding that,
because “Crowder’s answer failed to comply with the special
pleading requirements of OCGA § 9-16-12 (c) (1),” “the trial court
erred in denying the State’s motion for judgment on the pleadings
or, alternatively, in failing to dismiss Crowder’s answer.” Crowder, 348 Ga. App. at 855 (citation and punctuation omitted).
Despite conceding this error, the State contends that we may
nonetheless affirm the Court of Appeals’s ultimate decision in favor
of the State because the State was entitled to a default judgment
under OCGA § 9-16-12 (e) based on Crowder’s failure to file a timely
answer. In this regard, the record shows that the State moved for a
default judgment against Crowder under OCGA § 9-16-12 (e) on the
ground that he had failed to timely answer the complaint. The State
is correct that Crowder’s answer was untimely. He did not file his
answer until December 29, 2017 — well past his deadline of 30 days
from the April 26, 2017 “date of final publication” under OCGA § 9-
16-12 (c) (1). However, we cannot affirm based on the State’s default
judgment theory.
First, the trial court must address the due process concerns
Crowder raised about service by publication. If the trial court
concludes that the State’s method of service did not comport with
due process principles, the trial court should grant Crowder’s motion
to dismiss for insufficient service of process. See Rehman v. Belisle, 294 Ga. 71, 71 (751 SE2d 97) (2013); OCGA § 9-11-12 (b) (5). Second,
because Crowder is entitled to move the trial court to open any
default under OCGA § 9-11-55 (b), he has the statutory right to ask
the trial court to address the default judgment issue in the first
instance. We therefore cannot affirm the Court of Appeals on the
State’s default judgment theory.
For these reasons, we reverse the Court of Appeals’s judgment
that the State was entitled to a judgment on the pleadings or to the
dismissal of Crowder’s answer.
Judgment affirmed in part and reversed in part, and case remanded with direction. All the Justices concur, except Bethel, J., not participating, and Ellington, J., disqualified.
DECIDED JUNE 16, 2020. Certiorari to the Court of Appeals of Georgia — 348 Ga. App. 850. Glenn A. Loewenthal, for appellant. Tasha M. Mosley, District Attorney, John E. Fowler, Karen S. Barbour, Tiffany C. Boulware Pleasant, Assistant District Attorneys, for appellee.