Court Of Appeals Clarifies Rules Regarding Service Of Process

• Jurisdiction: Georgia,United States
• Law Firm: Berman Fink Van Horn P.C.
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Ms Katherine M. Silverman
• Published date: 24 January 2023

When a client contacts me after they've been sued, one of the first questions I ask them is whether they have been served with a copy of the lawsuit. For a party filing suit, service of process is the first procedural hurdle in litigation.

To properly serve a defendant, a plaintiff must comply with O.C.G.A. 9-11-4, Georgia's law governing service of process. Importantly, Georgia requires personal service on a defendant - mailing a copy of the lawsuit to the defendant is insufficient.

If the lawsuit stems from an ongoing dispute, the defendant may receive notice of the lawsuit prior to formal service of process, such as by email. Sometimes this can create confusion, especially in situations where the plaintiff fails to properly serve the defendant. If a defendant is aware of a lawsuit, is he obligated to respond when he hasn't yet been served?

In a recent opinion from the Georgia Court of Appeals, the appellate court clarified that notice of a lawsuit is insufficient in the absence of service in compliance with O.C.G.A. 9-11-4. See IMC Construction Co., Inc. v. Mitchell, 365 Ga. App. 470 (2022).

Facts

The IMC case involved a construction dispute between a homeowner and a contractor. The homeowner sued the contractor and attempted to serve the contractor's registered agent by leaving a copy of the complaint and summons at the registered agent's home with the registered agent's son. A few weeks later, the homeowner filed a certificate of acknowledgement indicating service of process on the contractor through the Georgia Secretary of State. After the contractor failed to file an answer, the homeowner obtained a default judgment against the contractor.

Four months later, the homeowner deposed the contractor. Nine months after the deposition, the contractor moved to set aside the default judgment, arguing that it had never been served with process.

Analysis

After the trial court denied the motion to set aside the default judgment, the contractor appealed. The contractor argued that because it had never been served, the trial court lacked jurisdiction...