Georgia Power Co. v. O'Bryant

• Decision Date: 19 December 1983
• Docket Number: No. 66726,66726
• Citation: 169 Ga.App. 491,313 S.E.2d 709
• Court: Georgia Court of Appeals
• Parties: GEORGIA POWER COMPANY v. O'BRYANT.

Page 709

313 S.E.2d 709

169 Ga.App. 491

GEORGIA POWER COMPANY v. O'BRYANT.

No. 66726.

Court of Appeals of Georgia.

Dec. 19, 1983.

Rehearing Denied Jan. 10, 1984.

Certiorari Denied Feb. 17, 1984.

Henry C. Tharpe, Jr., Timothy H. Allred, Dalton, for appellant.

Donald W. Johnson, Robert A. Whitlow, Dalton, for appellee.

POPE, Judge.

On January 4, 1982 appellee Bruce O'Bryant brought this action against appellant Georgia Power Company for damages resulting from extensive electrical burn injuries sustained by him on November 26, 1980. Appellant filed a timely answer and on September 21, 1982 a pretrial order was entered in the case. On January 7, 1983 appellant filed a motion for preliminary hearing pursuant to OCGA § 9-11-12(d) (Code Ann. § 81A-112), seeking to dismiss this action on the ground of insufficiency of service of process. Following a hearing, the trial court denied the motion but certified its order for immediate review. See OCGA § 5-6-34(b) (Code Ann. § 6-701). This court granted appellant's petition for interlocutory review.

In support of its motion to dismiss, appellant showed that the summons and copy of the complaint were served upon one Thomas J. Hartland, Jr., an Atlanta attorney. At all times pertinent to this action, Mr. Hartland was not an officer, employee or agent of appellant. On the date of service in this case, Mr. Hartland was the registered agent for Georgia Power Company Federal PAC, Inc., a nonprofit corporation registered with the Federal Election Commission as a political committee. Georgia Power Company Federal PAC, Inc. has no corporate structural relationship with appellant or with appellant's parent corporation, The Southern Company. Appellant asserts that it preserved the issue of insufficiency of service of process by including the issue in its responsive pleadings and by bringing a motion for a preliminary hearing on the issue prior to trial. See Hayes v. Superior Leasing Corp., 136 Ga.App. 98, 220 S.E.2d 86 (1975). The trial court found that the pretrial order entered in this case on September 21, 1982 controlled the issues in the case, that the pretrial order contained no reference to the issue of insufficiency of service of process, and that appellant had not been prejudiced by any defect in the service of process.

The facts of record on appeal, recited above, disclose that appellant was not properly served in this case pursuant to the Civil Practice Act. See OCGA § 9-11-4(d)(1) (Code Ann. § 81A-104); Thaxton v. Ga. Insurer's Insolvency Pool, 158 Ga.App. 407, 280 S.E.2d 421 (1981). Pursuant to OCGA §§ 9-11-12(b) and (d) (Code Ann. § 81A-112) appellant properly raised the issue in its answer and then moved for a hearing on the matter prior to trial. Thus, appellant did not waive this issue under OCGA § 9-11-12(h) (Code Ann. § 81A-112). "It is a long standing rule of law that where the record discloses that a defendant [here, appellant] was never served with a copy of the complaint and summons attached thereto, and if the defendant has not either waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the trial court does not acquire personal jurisdiction over the defendant. [Cit.] However, any act by which one consents to the jurisdiction of the court constitutes a waiver. Jones v. Roberts Marble Co., 90 Ga.App. 830, 84 S.E.2d 469 (1954)." (Emphasis supplied.) Bigley v. Lawrence, 149 Ga.App. 249, 250, 253 S.E.2d 870 (1979). See Bell v. New Orleans & N.R. Co., 2 Ga.App. 812, 816, 59 S.E. 102 (1907). "While a party may by his conduct ... waive a legal right, still where as here the only evidence of an intention to waive is what a party does or forbears to do, 'his acts or omissions to act, relied on, should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.' [Cits.]" Jones v. Roberts Marble Co., supra 90 Ga.App. at 832, 84 S.E.2d 469. The issue presented here is whether appellant, by its actions, waived any defect in service and thus consented to the jurisdiction of the trial court.

In its order denying appellant's motion to dismiss, the trial court found that appellant had appeared at the pretrial conference on September 20, 1982, the stated purpose of which was to determine the issues remaining in this case. The issues were set forth as "negligence, proximate cause and damages." Although it specifically withdrew its 11th defense (based upon the Workers' Compensation Act), appellant did not indicate to the trial court that insufficiency of service of process was still an issue in the case, and the order issued as a result of the pretrial conference set forth only "negligence, proximate cause and damages" as issues remaining in the case. Appellant appeared at the calendar call of this case on January 7, 1983 and announced ready for trial; the case was specially set for trial on January 17, 1983. Appellant again made no indication to the trial court that an issue remained as to insufficiency of service of process. Appellant filed no motion to amend the pretrial order, but filed its preliminary motion to dismiss on the afternoon of January 7, 1983.

"The purpose of process and service is to bring the defendant into court. [Cits.] The object of service on the defendant is to afford him notice of the pendency of the proceeding and to afford him an opportunity to appear and to be heard." Tyree v. Jackson, 226 Ga. 690, 693, 177 S.E.2d 160 (1970). The trial court found that appellant had admitted in its answer that it transacted business in Whitfield County and was subject to the jurisdiction of the court. The court also found that appellant had actual knowledge of appellee's complaint and had made no showing of harm or prejudice resulting from any defect in the service of process. The court noted that appellant had conducted a vigorous defense of the case since the filing of its answer, "including numerous hearings before this court and extensive discovery by both parties." Moreover, the record discloses that appellee (in compliance with the pretrial order) filed an amendment to his pleadings on December 27, 1982 which set out his specifications of negligence, a copy of which was hand-delivered to counsel for appellant. While any one of the foregoing circumstances, in and of itself, might not be sufficient to support a finding that appellant had waived its insufficiency of service of process defense (see, e.g., Glass v. Byrom, 146 Ga.App. 1, 245 S.E.2d 345 (1978)), we conclude that when considered as a whole, as the trial court did here, no other reasonable explanation of appellant's conduct in this case is possible. The linchpin of our conclusion is appellant's failure to make any mention whatsoever of its service of process defense in the pretrial order in this case.

The Civil Practice Act, OCGA § 9-11-16 (Code Ann. § 81A-116), provides: "(a) Upon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference to consider: (1) The simplification of the issues; (2) The necessity or desirability of amendments to the pleadings; (3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; (4) The limitation of the number of expert witnesses; and (5) Such other matters as may aid in the disposition of the action. (b) The court shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice." (Emphasis supplied.) "[T]he legislature has enjoined the courts of this state to construe the act so as 'to secure the just, speedy, and inexpensive determination of every action.' [Cit.] To this end the act should be liberally construed and applied. As was said by Professor John B. Reese, Jr., of the University of Georgia Law School, in an article appearing in 2 Ga.St.Bar J., pp. 419, 420, entitled The Georgia Civil Practice Act of 1966: Preliminary Observations: 'The Act is designed to simplify Georgia Civil Procedure by de-emphasizing form and technicality in order that the substantive rights of litigants may be asserted and tried on the merits.' E. Freeman Leverett, of the Elberton Bar, restated the same philosophy in an article entitled, Comments on the Georgia Civil Practice Act of 1966, appearing in 3 Ga.St.Bar J. 295: '(The Act) should serve to reduce the number of decisions which are resolved on grounds having no relation to the merits of the litigation.' These comments undoubtedly reflect the spirit and purpose of the Civil Practice Act and the courts of this state, both trial and appellate, should be diligent to hew not only to the letter of the act, but also to this spirit." Ambler v. Archer, 230 Ga. 281, 286-7, 196 S.E.2d 858 (1973).

Because the trial court may consider "such other matters as may aid in the disposition of the action" at a pretrial conference under OCGA § 9-11-16 (Code Ann. § 81A-116), "a court conducting the pretrial may decide to dispose of all preliminary matters at the conference, rather than leaving them to be raised [by later preliminary motion] before the trial court." 6 Wright & Miller, Federal Practice and Procedure 591: Civil § 1525 (1971). "This is a particularly useful aspect of Rule 16 practice because it often will promote the disposition of the case. For example, any jurisdictional challenges [or any other Rule 12(b) defenses] should be made at the conference, and the suit dismissed if a fatal defect appears." Id. at 618: Civil § 1529. Cf. Lane v. Brown, 63 F.Supp. 684(3) (E.D.Mich.1945). "While the pretrial...