Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc.

730 S.E.2d 514, 317 Ga. App. 123, 2012 Fulton County D. Rep. 2313, 2012 WL 2849773, 2012 Ga. App. LEXIS 664
CourtCourt of Appeals of Georgia
DecidedJuly 12, 2012
DocketA12A0110
StatusPublished
Cited by16 cases

This text of 730 S.E.2d 514 (Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc.) 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
Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc., 730 S.E.2d 514, 317 Ga. App. 123, 2012 Fulton County D. Rep. 2313, 2012 WL 2849773, 2012 Ga. App. LEXIS 664 (Ga. Ct. App. 2012).

Opinion

Dillard, Judge.

In this suit on an open account, Elizabeth Brennan Antiques & Interiors, Inc. (“Brennan”) sued Marion Hutcheson to recover payment for work done on Hutcheson’s property. Following Hutcheson’s failure to timely answer Brennan’s complaint after service by publication, the trial court entered a default judgment against her. Hutcheson now appeals, arguing, inter alia, that the trial court erred in denying her motion to set aside the default judgment on the ground that Brennan’s attempt to serve her by publication was improper and ineffective. Because the Clerk of the Superior Court of Walker County, by its own admission, failed to strictly comply with the requirements for service by publication delineated in OCGA § 9-11-4 (f) (1) (C), we are constrained to reverse the trial court’s denial of Hutcheson’s motion to set aside the default judgment.

The record shows that between April of 2006 and April of 2008, Brennan performed work on Hutcheson’s Happy Valley Stables property, but she eventually stopped such work after a dispute arose over payment. On October 16, 2009, Brennan notified Hutcheson of her intent to recover the money allegedly owed for the work she had completed. But Hutcheson refused Brennan’s demand, and thus, on December 2, 2009, Brennan filed a verified suit on account in the Superior Court of Walker County. At that time, Brennan provided the sheriff’s department with the documents for service upon Hutcheson, which indicated that her home address was Route 1, Happy Valley Road, Rossville, Georgia. However, despite multiple attempts — some of which may have occurred at Hutcheson’s business rather than her residence — the sheriffs department was unable to personally serve Hutcheson.

Thereafter, Brennan moved for an order appointing a special process server, which the trial court granted on March 21, 2010. The special process server made several attempts to serve Hutcheson at her residence but was also unsuccessful, despite the fact that on two of the attempts Hutcheson appeared to be home. Subsequently, Brennan enlisted the aid of a second process server. This second [124]*124process server also made multiple attempts to serve Hutcheson. In fact, during one attempt, the second process server allegedly approached Hutcheson as she was leaving her residence, but she refused service and sped past the process server in her car.

Believing that Hutcheson was evading service, on June 23,2010, Brennan filed a motion for service by publication, which included affidavits from the sheriff’s deputy and both special process servers concerning their failed attempts to serve Hutcheson. The trial court granted Brennan’s motion one day later, the order was filed on July 13, 2010, and on July 16, 2010, the notice of publication, which included Hutcheson’s address, was filed with the court. In addition, Brennan requested that the clerk of the Walker County Superior Court mail a stamped filed copy of the notice to Hutcheson’s known address. And beginning on July 23, 2010, the notice was published in a local newspaper for four consecutive weeks.

Despite the publication, Hutcheson did not file an answer, and as a result, on September 24, 2010, Brennan filed a motion for default judgment. One week later, Hutcheson’s counsel filed an entry of appearance but did not initially file a motion to open the default pursuant to OCGA § 9-11-55 (b). Consequently, on October 5, 2010, the court granted default judgment. Shortly thereafter, Hutcheson filed a motion to set aside the default judgment, arguing that the service by publication was improper and ineffective, and therefore, the court did not have personal jurisdiction over her. Brennan filed a response, and on December 21, 2010, the trial court held a hearing on the matter. At the conclusion of the hearing, the trial court ruled that Hutcheson had attempted to evade service and, thus, service by publication was warranted. However, although the trial court refused to open the default, it did set aside the default judgment for a determination of whether or not Brennan’s damages were liquidated. On December 28, 2010, the trial court issued an order reaffirming its conclusions from the hearing.

Following the December 28, 2010 order, Hutcheson filed a pleading contesting Brennan’s damages, and Brennan filed a motion arguing that her damages were, in fact, liquidated and that a hearing on damages was, therefore, unnecessary. Additionally, Hutcheson filed a motion to open the default and a motion that she termed a “Motion To Amend or Modify the Order of This Court Dated December 28, 2010,” arguing again that service by publication was improper and ineffective. In support of this motion, Hutcheson included an exhibit entitled “Certificate of Clerk” which was signed by the Clerk of the Superior Court of Walker County and which stated [125]*125as follows:

The undersigned hereby certifies that, at the request of Defendant’s counsel, on this date he has personally examined the official court file in the above-styled case. He further certifies that neither he nor any member of his office staff was advised at any time by any person, that the address of the defendant Marion Hutcheson was known, in the manner provided by OCGA § 9-11-4 (f) (1). Consequently, absent any advisement by the party obtaining the order for Service by Publication that the residence of the defendant, Marion Hutcheson was known, neither the undersigned nor any of his designees mailed a copy of the notice of publication or the complaint in this case, to the defendant Marion Hutcheson, nor is there any such notation in the case file.

On April 5, 2011, the trial court held another hearing, during which Brennan argued that her company’s lawsuit was on an open account, that damages were liquidated, and therefore, that default judgment should, once again, be granted in her favor. Hutcheson further argued that service by publication was improper in light of the evidence that the notice was not mailed to Hutcheson, but the trial court refused to hear additional argument on the issue, and at the conclusion of the hearing, the court ruled that Brennan’s damages were liquidated and granted default judgment in her favor. Shortly thereafter, on April 15, 2011, the trial court issued a written order, affirming the default judgment. This appeal follows.

At the outset, we note that, “[a]bsent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a default judgment.”1 However, the standard of review for a question of law on appeal is de novo, “during which we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.”2 With these guiding principles in mind, we will now address Hutcheson’s argument.

1. Hutcheson contends that the trial court erred in denying her motion to set aside the default judgment, arguing, inter alia, that service by publication was invalid because the Clerk of the Superior Court of Walker County failed to strictly comply with the require-[126]*126merits for service by publication set forth in OCGA § 9-11-4 (f) (1) (C).

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.E.2d 514, 317 Ga. App. 123, 2012 Fulton County D. Rep. 2313, 2012 WL 2849773, 2012 Ga. App. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutcheson-v-elizabeth-brennan-antiques-interiors-inc-gactapp-2012.