Joyner v. Schiess

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH.
• Citation: Joyner v. Schiess, 512 S.E.2d 62, 236 Ga.App. 316 (Ga. App. 1999)
• Decision Date: 09 February 1999
• Docket Number: No. A98A1696.,A98A1696.
• Parties: JOYNER v. SCHIESS.

512 S.E.2d 62

236 Ga. App. 316

JOYNER v. SCHIESS.

No. A98A1696.

Court of Appeals of Georgia.

February 9, 1999.

Certiorari Denied May 14, 1999.

Gary P. Bunch, Carrollton, for appellant.

Hall, Booth, Smith & Slover, Mark A. Inman, Atlanta, Ashley D. Phillips, Gainesville, Timothy H. Bendin, Atlanta, for appellee.

SMITH, Judge.

This appeal arises out of the trial court's dismissal of Montine Joyner's medical malpractice action against Robert Schiess. The issue is whether Schiess waived his defense of insufficiency of service. Under the facts of this case, we hold that the trial court correctly concluded that Schiess did not waive the defense, and we affirm the dismissal of Joyner's action.

Joyner filed a medical malpractice action against Schiess and three other defendants on March 4, 1996, arising out of alleged injuries occurring during May 1994. Service was attempted on Schiess on March 7, 1996, but was not made on him personally. Instead, the summons and complaint were left with another individual "in charge of the office and place of doing business of said Corporation in this County." Schiess, however, was sued individually, not as a corporation, and Joyner therefore was required to serve Schiess "personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process." OCGA § 9-11-4(d)(7).

In his answer, Schiess asserted insufficiency of service of process as a defense. Also, in August 1996, in his verified response to Joyner's interrogatory asking Schiess to explain the legal basis for his defense, Schiess stated that the individual to whom the summons and complaint were given was not authorized to accept service. In October 1997, Schiess moved to dismiss, contending that Joyner was guilty of laches by her failure to exercise due diligence, as required by OCGA § 9-11-4(c). This motion to dismiss was filed before entry of a pretrial order. In response, Joyner did not maintain that Schiess's motion was legally insupportable on the merits, but instead asserted that Schiess waived his defense by committing acts constituting general appearances. The trial court granted Schiess's motion, concluding that waiver had not occurred.

The trial court correctly dismissed the complaint. Service was not perfected on Schiess as required by OCGA § 9-11-4(d)(7), and Schiess did not waive the defense of insufficiency of service. Although Schiess may have participated in discovery and made certain motions in the trial court, he preserved the defense by specifically raising it in his answer. Roberts v. Bienert, 183 Ga.App. 751, 753-754(2), 360 S.E.2d 25 (1987). Furthermore, he reasserted the defense in his responses to Joyner's interrogatories. See Garrett v. Godby, 189 Ga.App. 183(1), 375 S.E.2d 103 (1988). And he did not waive the defense after raising it. "After a party has properly raised such a defense, it will only be found waived if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible. [Cit.]" Heis v. Young, 226 Ga.App. 739, 740(3), 487 S.E.2d 403 (1997). See also Marsh v. Wright Mem. Mortuary, 197 Ga.App. 736-737(1), 399 S.E.2d 232 (1990). As in Heis, Schiess "engaged in no such conduct." Id. at 740(3), 487 S.E.2d 403. Unlike cases such as Wheeler's, Inc. v. Wilson, 196 Ga.App. 622, 396 S.E.2d 790 (1990) (physical precedent only) and Ga. Power Co. v. O'Bryant, 169 Ga.App. 491, 313 S.E.2d 709 (1984), Schiess did not waive his "procedural defenses by participating in substantial litigation on the merits, or by consenting to a pretrial order that did not list the procedural defense as a remaining issue." Heis, supra at 740(3), 487 S.E.2d 403.

Relying on Tate v. Leres, 59 Ga.App. 6, 200 S.E. 325 (1938), Joyner argues that Schiess committed several acts, constituting general appearances, that amounted to a clear relinquishment of his right to raise his insufficiency of service defense. She claims that waiver occurred when Schiess participated in consent motions to extend discovery and requested a continuance of mediation. She also argues that Schiess waived the defense by demanding, in his answer, a pretrial conference and a jury trial. Finally, she maintains that under the totality of these circumstances, waiver occurred.¹ These acts, whether considered individually or in their totality, did not constitute waiver. We first note that Tate is not controlling. In Tate, plaintiff filed a trover action, but no return of service was filed. Id. at 6, 200 S.E. 325. The case proceeded to trial, and a jury returned a verdict against defendant. Id. Defendant moved to set aside the verdict based on the defect in service. Id. Stating the rule that a general appearance waives all defects in process, id. at 10, 200 S.E. 325, this Court concluded that defendant waived his defense because his counsel made a general appearance by requesting a continuance of the case prior to trial. Id. at 10-11, 200 S.E. 325. But Tate, unlike Roberts, supra, is not a case in which the defendant properly raised insufficiency of service as a defense in his answer. Schiess clearly raised the defense and then reasserted it in discovery responses. Furthermore, after properly raising the defense, Schiess did not act in a manner so clearly showing his intent to relinquish his defense that no other explanation is possible. His demands for a pretrial conference and for a jury trial were simply made in his answer, which served to preserve at an early stage of litigation any rights regarding these possible future events. As in Marsh, supra, in which we held that defendant did not waive his defense by filing a cross-claim, a motion to transfer, and a motion to join a necessary party, Schiess merely sought an affirmative action from the trial court by making these preliminary demands, not "affirmative relief for a claim." Id. at 737(1), 399 S.E.2d 232.

As for Schiess's participation in consent motions for extension of discovery periods and requests for continuance of mediation, the explanation for Schiess's conduct is clear: to gain time to pursue necessary discovery. And "[p]articipation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service. [Cit.]" Garrett, supra at 185(2), 375 S.E.2d 103. Since participation in even extensive discovery...