Newell v. Brown

• Decision Date: 28 April 1988
• Docket Number: No. 76162,76162
• Citation: 369 S.E.2d 499,187 Ga.App. 9
• Parties: NEWELL, v. BROWN.
• Court: Georgia Court of Appeals

Page 499

369 S.E.2d 499

187 Ga.App. 9

NEWELL, v. BROWN.

No. 76162.

Court of Appeals of Georgia.

April 28, 1988.

G. Fred Bostick, Smyrna, for appellant.

Garvis L. Sams, Jr., Marietta, for appellee.

BIRDSONG, Chief Judge.

This is an appeal from the order of the Superior Court of Cobb County which denied appellant's motion to set aside a default judgment.

Appellee filed suit against James R. Buddin and Corky Newell, individually and d/b/a Jim-Cor, Inc. for damages resulting from defendant's poor workmanship and faulty construction of a certain house, for treble damages based on unfair or deceptive acts or practices in the conduct of consumer transactions in violation of the Fair Business Practices Act (OCGA § 10-1-390 et seq.), for damages resulting from breach of express and implied builders' warranties, and for exemplary damages.

Appellee's counsel, believing that attorney Shriver duly represented all defendants in the pending litigation obtained the consent of appellee to forego formal service of process upon appellant and the other co-defendants and to allow attorney Shriver to execute an Acknowledgement of Service after receipt of process. Attorney Shriver subsequently acknowledged service of appellee's complaint "on behalf of Defendants, James R. Buddin, Corky Newell, and Jim-Core [sic], Inc.," and expressly declared that "[a]ll other and further service and notices are hereby waived."

Subsequently, attorney Shriver failed to file any answer or defensive pleadings for any of the three named defendants. On January 16, 1987, a default judgment and certificate of default were filed. No acknowledgement of service of the default judgment order or of the certificate of default apparently was filed with the court by the appellee. On February 6, 1987, appellant filed a motion to set aside the default judgment entered against himself individually "on jurisdictional grounds based upon lack of jurisdiction over the person." On July 10, 1987, appellant filed an amendment to the motion to set aside by addition of the grounds that "a non amendable defect appears upon the face of the Record of Pleadings," as the contract in question was a "private transaction" and "not a transaction within the public consumer market place" as intended and defined by OCGA § 10-1-390.

On October 2, 1987, the order of the trial court denying appellant's motion to set aside and motion for new trial and affirming the default judgment was filed.

Appellant enumerates as error that the trial court erred in denying his motion to set aside the default judgment and allow him to file his defensive pleadings.

A default judgment based on other than legal service of process is null and void in the absence of valid acknowledgement of service or waiver. See Hardwick v. Fry, 137 Ga.App. 771, 225 S.E.2d 88; American Photocopy etc. v. Lew Deadmore etc., 127 Ga.App. 207, 193 S.E.2d 275; Foster v. Foster, 207 Ga. 519(3), 63 S.E.2d 318. A defendant may acknowledge service of process or waive it by a writing signed either by himself or someone authorized by him. OCGA § 9-10-73. The requirement for personal jurisdiction may be waived, between the parties, by execution of a valid acknowledgement of service. See Jones v. Jones, 209 Ga. 861(1), 76 S.E.2d 801; Georgia Creosoting Co. v. Moody, 41 Ga.App. 701(1), 154 S.E. 294; see also Rawlins v. Busbee, 169 Ga.App. 658(1)(b), 315 S.E.2d 1 (court may acquire jurisdiction of the person by acknowledgement of service); OCGA §§ 9-11-12(h); 15-1-2 (jurisdiction over the person may be waived). An acknowledgement of service executed by one as attorney for the defendant is prima facie authorized until the contrary appears. Jackson v. Jackson, 199 Ga. 716, 35 S.E.2d 258. When a defendant challenges the sufficiency of service, including a challenge of the sufficiency of a waiver generated by the execution of an acknowledgement of service, he bears the burden of proof. See Patterson v. Coleman, 252 Ga. 152, 311 S.E.2d 838; Brown v. WTA/CHC, 172 Ga.App. 636, 324 S.E.2d 205. When a defendant executes a waiver of service, either personally or through an authorized agent, by signing an acknowledgement like the one signed in this case, he is thereafter precluded from complaining because of the absence of service. See, e.g., Jones v. Jones, supra 209 Ga. at 863, 76 S.E.2d 801. Likewise, if an attorney signs an acknowledgement of service in behalf of an alleged client, the attorney is then estopped to deny his lack of authority to act. See Jackson, supra 199 Ga. at 719-720, 35 S.E.2d 258. However, when only the attorney signs the acknowledgement of service, the alleged client is not estopped to contest the authority of the attorney to act in the alleged client's behalf. Id. When such a contest is initiated by the alleged client attacking the authority of the signing attorney, the attorney should then be free to submit evidence relevant to the support or refutation of the alleged client's assertions, as "[t]he object of all legal investigation is the discovery of truth," and in certain circumstances the attorney may be required to do so by the trial judge. See OCGA §§ 15-19-7; 24-1-2.

In Jackson this court established the following methodology in resolving challenges to an attorney's authority to execute an acknowledgement of service: "The defendant may acknowledge service or process, but this must be done in writing by him or someone authorized by him to do so. Code, § 81-211 [OCGA § 9-10-73.] No warrant of attorney is required in this State, and an acknowledgement of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears. [Cits.] ... While this presumption is not conclusive, but is one which may be rebutted by the party for whom the attorney purports to act if he proceeds in due time, the burden is upon the party to show the want of authority in the attorney. [Cits.] It is also true that 'A judgment rendered against a party ... upon a wholly unauthorized appearance of an attorney, if the act of the attorney be not ratified, will be set aside in a direct proceeding for that purpose, in law or equity, if the party is not guilty of unreasonable delay after notice or knowledge of the judgment....' " (Emphasis supplied.) Jackson, supra at 719-720, 35 S.E.2d 258. While an acknowledgement of service executed by an attorney in behalf of an alleged client can be traversed and impeached by showing want of authority in the attorney, the acknowledgement of service is of itself evidence of a higher order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. See Woods v. Congress Fin. Corp., 149 Ga.App. 156, 157, 253 S.E.2d 834.

In this case, appellant and attorney Shriver have both executed affidavits denying the existence of any authority, consent, or permission on the part of the latter to acknowledge service on behalf of appellant in the case at bar. Attorney Shriver in his affidavit asserts that he was mistakenly informed by James R. Buddin that he was also to represent appellant in this case, but in fact he had no contract or agreement with appellant to represent him and had not been given any authority to consent by the appellant either to represent him in the action or to acknowledge service for him. Further, attorney Shriver asserts that at no time before the default judgment was entered did he inform appellant of or send him a copy of the acknowledgement of service. In addition the appellant asserts that at no time prior to January 22, 1987, did he have any knowledge or notice of the suit being filed, of the acknowledgement of service, or notice of any trial date or of the default judgment. Appellant further asserts that at no time prior to January 22, 1987, did he have any knowledge that he was a named party defendant in this case; that attorney Shriver did not represent him in his case; and, that appellant has terminated and disassociated himself as an officer and stockholder of Jim-Cor since April 10, 1986.

Appellee offered no direct evidence in rebuttal to these disclaimers of agency and authority by appellant and attorney Shriver. Rather, appellee relied upon certain circumstantial evidence in an attempt to refute appellant's claim. Certain of this circumstantial evidence was primarily relied upon by the trial court in its determination that "at all times pertinent hereto, from January 1986 until [appellant's] Motion to Set Aside the Default Judgment was filed on or about ...