Fudge v. Balkissoon

Court of Appeals of Georgia

Fudge v. Balkissoon

406 S.E.2d 116, 199 Ga. App. 755, 1991 Ga. App. LEXIS 648

CourtCourt of Appeals of Georgia

DecidedMay 23, 1991

DocketA91A0129

StatusPublished

Cited by3 cases

This text of 406 S.E.2d 116 (Fudge v. Balkissoon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fudge v. Balkissoon, 406 S.E.2d 116, 199 Ga. App. 755, 1991 Ga. App. LEXIS 648 (Ga. Ct. App. 1991).

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Opinion

Pope, Judge.

Plaintiff Gerald W. Fudge, an attorney proceeding pro se, filed a complaint against defendants Peter and Dhanwantie Balkissoon but was unsuccessful in perfecting personal service on them. Plaintiff obtained an order from the trial court authorizing service by publication which, pursuant to OCGA § 9-11-4 (e) (1) (C), must be published “four times within the ensuing 60 days, publications to be at least seven days apart.” In this case, the first publication was printed only three days before the 60-day period for publication expired and the remaining three publications occurred outside the period. Defendants answered and raised the defense of insufficiency of service of process. The trial court granted defendants’ motion to dismiss and we affirm.

Plaintiff’s argument on appeal is based on the substantial compliance rule of Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986). However, Brim and the substantial compliance rule were expressly overruled by the Georgia Supreme Court in Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). With regard to the method of service, substantial compliance is not sufficient; service must be made as provided by statute. Id. at 419, n. 2. Service in this case did not comply with the terms of the statute authorizing service by publication and thus the trial court did not err in dismissing plaintiff’s complaint, j Because the only argument in support of plaintiff’s appeal has been expressly overruled by the Supreme Court we find the appeal was frivolous and grant defendants’ motion for the imposition of a $500 penalty pursuant to Rule 26 (b) of the Rules of the Court of [Appeals of Georgia. On remittitur of this case, the trial court is directed to enter judgment accordingly.

[756]*756Decided May 23, 1991. Gerald W. Fudge, pro se. Stanley M. Lefco, Ned Blumenthal, for appellees.

Judgment affirmed. Motion for penalty for frivolous appeal granted.

Birdsong, P. J., and Cooper, J., concur.

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Pope, Judge.

Plaintiff Gerald W. Fudge, an attorney proceeding pro se, filed a complaint against defendants Peter and Dhanwantie Balkissoon but was unsuccessful in perfecting personal service on them. Plaintiff obtained an order from the trial court authorizing service by publication which, pursuant to OCGA § 9-11-4 (e) (1) (C), must be published “four times within the ensuing 60 days, publications to be at least seven days apart.” In this case, the first publication was printed only three days before the 60-day period for publication expired and the remaining three publications occurred outside the period. Defendants answered and raised the defense of insufficiency of service of process. The trial court granted defendants’ motion to dismiss and we affirm.

Plaintiff’s argument on appeal is based on the substantial compliance rule of Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986). However, Brim and the substantial compliance rule were expressly overruled by the Georgia Supreme Court in Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). With regard to the method of service, substantial compliance is not sufficient; service must be made as provided by statute. Id. at 419, n. 2. Service in this case did not comply with the terms of the statute authorizing service by publication and thus the trial court did not err in dismissing plaintiff’s complaint, j Because the only argument in support of plaintiff’s appeal has been expressly overruled by the Supreme Court we find the appeal was frivolous and grant defendants’ motion for the imposition of a $500 penalty pursuant to Rule 26 (b) of the Rules of the Court of [Appeals of Georgia. On remittitur of this case, the trial court is directed to enter judgment accordingly.

[756]*756Decided May 23, 1991. Gerald W. Fudge, pro se. Stanley M. Lefco, Ned Blumenthal, for appellees.

Judgment affirmed. Motion for penalty for frivolous appeal granted.

Birdsong, P. J., and Cooper, J., concur.

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406 S.E.2d 116, 199 Ga. App. 755, 1991 Ga. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fudge-v-balkissoon-gactapp-1991.

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