FOCUS HEALTHCARE MEDICAL CENTER v. O'NEAL

Decision Date15 January 2002
Docket NumberNo. A01A1851.,A01A1851.
Citation253 Ga. App. 298,558 S.E.2d 818
PartiesFOCUS HEALTHCARE MEDICAL CENTER, INC. v. O'NEAL.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Frederick J. Hanna & Associates, Elizabeth C. Whealler, Marietta, for appellant.

ELDRIDGE, Judge.

Focus Healthcare Medical Center, Inc. appeals from the trial court's sua sponte dismissal with prejudice of its complaint on open account brought against Phillip O'Neal as barred by the statute of limitation. O'Neal was served notoriously at what the summons and return of service alleged was his notorious place of abode and was alleged to be in default, but has never made an appearance in any court. We reverse, because the trial court had no authority to assert an affirmative defense, which could be waived, on behalf of a party in order to dismiss with prejudice; the trial court may, after inquiry under Uniform State Court Rule (USCR) 15, dismiss without prejudice this complaint for lack of service/defective service if it is not shown that the place of service was the defendant's notorious place of abode.

Neither the complaint, the account statement, nor the attorney's certificate set forth that O'Neal lived at 2249 Casher Court, Decatur, DeKalb County, Georgia; and that this was his residence, dwelling house, usual place of abode, or notorious place of abode in this county. Nor did it plead what his residence address was in the county when service was made. Only on the summons and the return of service had the plaintiff typed in the defendant's name and address as "Phillip O'Neal, 2249 Casher Ct., Decatur, Ga. 30032." The marshal's return of service had the name and address of the defendant typed in, but under service, O'Neal's name was handwritten, along with the name Emma Norwood and descriptive facts regarding her appearance; the rest of the return was preprinted, stating:

I have this day served the defendant ____ by leaving a copy of the action and summons at his most notorious place of abode in this county. Delivered same into the hands of _____ described as follows age, about __ years; weight, about ____ pounds; height, about ___ feet ___ inches, domiciled at the residence of defendant.

O'Neal has never appeared or responded, indicating that he may never have received notice of this action, notice of appeal, or the briefing schedule of the Court, because the plaintiff continues to use on its certificate of service "Phillip O'Neal, 2249 Casher Court, Decatur, Ga. 30032."

Reluctantly, this Court must reverse the trial court, because it is obvious that the trial court was concerned with judicial economy in dismissing with prejudice this overly stale action on account for the attachment of the four-year statute of limitation as a bar, rather than to enter a void judgment, which could be set aside by collateral attack for lack of personal jurisdiction when it was sought to be enforced upon finding O'Neal, when he is found. OCGA § 9-11-60. The last entry of a charge occurred on November 9, 1995, and the statement was rendered November 20, 1997, but suit on the open account was brought on December 8, 2000.

When there has been no actual service, the judgment can successfully be collaterally attacked for lack of personal jurisdiction as void, because there has been no "real" default for failure to answer a complaint that was never served, and thus, OCGA § 9-11-12(b) and affirmative defenses cannot be waived. Barnes v. Continental Ins. Co., 231 Ga. 246, 247, 201 S.E.2d 150 (1973); Collins v. Peacock, 147 Ga.App. 424, 428(3), 249 S.E.2d 142 (1978).

(a) The trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.

[The defendant] has not filed a plea of the statute of limitation prior to the trial as is required by Section 8(c) of the Civil Practice Act ([OCGA § 9-11-8(c) ]; Ga. L.1966, pp. 609, 619; 1967, pp. 226, 230). Furthermore, during the trial the defendant filed no motion in such regard or otherwise attempted to raise such issue. A defendant may not avail himself of an affirmative defense which he failed to properly present. As pointed out in decisions prior to the Civil Practice Act: The bar of the statute of limitation is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instances operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.

(Citations and punctuation omitted.) Searcy v. Godwin, 129 Ga.App. 827, 829(1), 201 S.E.2d 670 (1973). See also Ga. Receivables v. Cheatham, 216 Ga.App. 656, 658, 455 S.E.2d 375 (1995) (Smith, J., concurring specially) (physical precedent only).

[OCGA § 9-11-12(h)(3)] deals solely with the duty of the trial court to dismiss an action when it appears that subject-matter jurisdiction, a nonwaivable defect which would render any judgment in the action void, is absent. It does not authorize a trial court judge to enforce, over the objection of the defendant, a waivable defense held by that defendant. This was error.

McLanahan v. Keith, 239 Ga. 94, 96, 236 S.E.2d 52 (1977), overruled on other grounds, Little v. Walker, 250 Ga. 854, 855, 301 S.E.2d 639 (1983). Thus, the trial court lacked the authority to enter a dismissal with prejudice in this case, which constitutes reversible error.

(b) Under USCR 15, which is the same as the superior court rule, the trial judge is required to make a determination from the record by the pleadings, return of service, the certificate of counsel, and any evidence before the trial court prior to granting a default judgment that there has been valid service from the method of service and that there exists a true default, without motion to open default pending, under the facts and circumstances of the case presented before the court. Thus, the trial court has the duty to determine upon the presentation of the certification of default by counsel that there has been service and that the defendant is in fact in default prior to entry of a default judgment to avoid a fraud on the court or the cluttering of the court records with void judgments that must be later set aside. Such duty is to properly administer suits and procedure for judicial economy and to avoid injustice from void judgments. Thus, on remand, the trial court must perform these duties imposed by uniform rule of court approved by the Supreme Court of Georgia. See Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. "The State Constitution also gives [the Supreme Court of Georgia] authority to make rules to `provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions' [u]nder [its] inherent and rulemaking powers." (Citation omitted.) Garcia v. Miller, 261 Ga. 531, 532(3), 408 S.E.2d 97 (1991). See also Davis v. Gaona, 260 Ga. 450, 453(4), 396 S.E.2d 218 (1990) (power of Supreme Court with advice and consent of the affected class of court to adopt uniform procedural rules to provide for "`speedy, efficient, and inexpensive resolution of disputes and prosecutions'").

In this case, neither the complaint nor the certificate of counsel indicates that the place where constructive service was allegedly made was the residence, dwelling house, usual place of abode, or notorious place of abode of the defendant. Only the printed return of service gives any indication that this was the residence and does not indicate if it was based upon the information placed in the form, the summons of process and return of service by plaintiff's counsel, or if it came from information otherwise known to the marshal from his actual service on the resident of the dwelling. The return of service of the marshal does not show that the marshal had direct, personal knowledge that the residence where service was made was the defendant's dwelling house or usual place of abode or that the person served resided therein. See Yelle v. U.S. Suburban Press, 216 Ga.App. 46, 47, 453 S.E.2d 108 (1995). The affidavit/certificate of counsel is deficient because it pleads only conclusions in a form fashion, providing no facts to support the legal conclusions of notorious service. Specifically, the affidavit/certificate of counsel asserts that service was made notoriously without certifying what the residence address of the defendant was and that this was, in fact, defendant's dwelling house, usual place of abode, or notorious place of abode. The affidavit of counsel states only that "[t]he Defendant was served on December 12, 2000 by notorious service," which would be under OCGA § 9-11-4(e)(6) and not under § 9-11-4(e)(7) as actually returned by the marshal. However, the marshal's return of service, while marking "notorious" service, actually shows a constructive/substitute service on "Emma Norwood ... domiciled at the residence of defendant," which would be made under OCGA § 9-11-4(e)(7). This raises an initial question of internal inconsistency or conflict of fact on the face of the return for the trial court to resolve.

Thus on remand, under the facts and circumstances of this case and USCR 15, the trial court must satisfy itself that there has been a valid service and that there has been a default unopened prior to the entry of a default judgment. In carrying out such duty, it would be appropriate on remand for the trial court either to require plaintiff to amend its complaint to set out the known residence of the defendant, which would allow the defendant to answer an amended complaint or, in the alternative, to require counsel to amend his affidavit/certificate of counsel to certify under oath that the defendant's residence address, dwelling house, usual place of abode, or notorious place of abode in the certificate was where the service was made...

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    ...is an affirmative defense a defendant "may elect to take advantage of or waive as he pleases." Focus Healthcare Med. Ctr., Inc. v. O'Neal , 253 Ga.App. 298, 558 S.E.2d 818, 820 (2002) (quoting Searcy v. Godwin , 129 Ga.App. 827, 201 S.E.2d 670, 672 (1973) ); Georgia Civil Practice Act , Ga.......
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