Passmore v. Thomas

565 S.E.2d 923, 255 Ga. App. 612, 2002 Fulton County D. Rep. 1665, 2002 Ga. App. LEXIS 713

• Court: Court of Appeals of Georgia
• Decided: June 3, 2002
• Docket: A02A0078
• Status: Published

Opinions

Phipps, Judge.

Gail Passmore and her husband sued Tammy Thomas for injuries arising out of an automobile collision. Thomas was a resident of Georgia at the time of the collision, but later moved to California. The Passmores obtained an order from Crisp County Superior Court specially appointing “MLQ Attorney Services or its designated agent who is qualified to effect service of process in Contra Costa County, California” to serve Thomas with a copy of the summons and complaint. An agent of MLQ Attorney Services, who was also a United States citizen, served Thomas.

The Passmores later voluntarily dismissed their complaint without prejudice. They then filed a renewal action and obtained another order from Crisp County Superior Court specially appointing “MLQ Attorney Services or its designated agent who is qualified to effect service of process in Contra Costa County, California” to serve Thomas with a copy of the summons and complaint. An agent of MLQ Attorney Services, who was also a United States citizen, served Thomas with the renewal action.

Thomas moved to dismiss the Passmores’ complaint, claiming that service was deficient in both the original action and the renewal action and that the applicable statute of limitation had expired. Thomas argued that the service was invalid in both actions for the same reason — it was not carried out by a citizen appointed by the superior court to effectuate service of process. The trial court (a different Crisp County Superior Court judge from the ones who issued the orders appointing a special process server) accepted Thomas’s argument and dismissed the Passmores’ complaint with prejudice.

The Passmores claim that the trial court erred by dismissing their complaint because it was served by a citizen of the United States whom the court had authorized to serve as a special process server. We agree and reverse.

OCGA § 9-11-4 (c) provides that process may be served “by any citizen of the United States specially appointed by the court for that purpose.” The court appointed MLQ Attorney Services or its designated agent to serve Thomas in both actions. And in both actions, the Passmores filed an affidavit of service executed by a process server who swore that he or she was a United States citizen and an agent of MLQ Attorney Services¹ and that he or she had served Thomas with the summons and complaint. Although the better practice in a situation such as this would be to obtain an order naming a specific person to effect service, we find that the Passmores have not transgressed the requirements of OCGA § 9-11-4 (c). “In essence, by permitting [MLQ Attorney Services] or [its] designee to act as process server, service was made by a person ‘appointed by the court.’ ”²

“When a defendant in a lawsuit challenges the sufficiency of service, [she] bears the burden of showing improper service.”³ Here, Thomas failed to show that the process servers were not United States citizens or that they were not agents of MLQ Attorney Services. Because the Passmores submitted uncontradicted evidence of proper service in both actions, the trial court erred by dismissing their complaint.

Judgment reversed.

Johnson, JR J., Smith, P. J., Miller and Mikell, JJ, concur. Blackburn, C. J., and Andrews, P. J., dissent.

1 The dissent claims that the process server in the original action was not an agent of MLQ Attorney Services because he is identified on a billing statement as an independent contractor for a messenger service in California. But that would not preclude him from serving process as an agent for MLQ Attorney Services, as he avers in his affidavit filed in the trial court.

2 (Punctuation omitted.) Heritage House Frame &c. Co. v. Boyce Highlands Furniture Co., 88 FRD 172, 174 (E.D. N.Y. 1980) (applying FRCP 4 (c)).

3 (Punctuation and footnote omitted.) Wilkinson v. Udinsky, 242 Ga. App. 464, 465 (1) (530 SE2d 215) (2000); Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (1) (442 SE2d 795) (1994).