Roberts v. Bienert

• Decision Date: 06 July 1987
• Docket Number: No. 74512,74512
• Parties: ROBERTS et al. v. BIENERT et al.
• Court: Georgia Court of Appeals

Page 25

360 S.E.2d 25

183 Ga.App. 751

ROBERTS et al. v. BIENERT et al.

No. 74512.

Court of Appeals of Georgia.

July 6, 1987.

Rehearing Denied July 20, 1987.

Robert A. Falanga, Jesse E. Barrow III, Atlanta for appellants.

Brynda Sue Rodriguez, Michael G. Frick, Atlanta for appellees.

DEEN, Presiding Judge.

Appellant Edward Roberts sought treatment from appellees Bienert and Hughes for back problems. He alleges that when his condition did not improve in response to conservative treatment, he consented to undergo surgery. He further alleges that the surgery caused his condition to worsen, with the result that he is no longer able to work.

1. On November 13, 1985, Roberts brought an action for medical malpractice and fraud against Dr. Bienert and Dr. Hughes. Mrs. Roberts joined in the complaint, seeking damages for loss of consortium. The marshal attempted to serve both defendants at the East Point (Fulton County) office where Roberts had consulted them. Dr. Hughes accepted service for himself and, after informing the marshal that Bienert had opened another office, accepted service for Dr. Bienert, also. The record shows that Hughes passed along the papers to Bienert but does not indicate on what date.

Both Hughes and Bienert answered on December 18, 1985. Bienert's answer raised the defenses, inter alia, of no service, insufficient service, and improper venue; the answer also denied, paragraph by paragraph, the substantive allegations of the complaint. On August 11, 1986, both Bienert and Hughes moved for summary judgment on the substantive grounds alleged in the complaint. On August 18 appellants filed an amended complaint alleging that Bienert was a resident of Fayette County and could be served at his place of business (stated as Dr. Hughes' office address in East Point) or by second original at his Fayette County residence. On September 10, 1986, personal service by second original was made upon Bienert at his Fayette County address. On October 7 Bienert filed an amended answer in which he admitted the allegation of jurisdiction in the amended complaint and raised the additional defense of laches. On October 16, the date of the hearing on the motion for summary judgment, Bienert sought to withdraw two of the three issues addressed in his motion for summary judgment; the court denied this motion.

On December 8, 1986, the trial court entered an order granting summary judgment and dismissing Bienert from the action. The court held expressly that appellants' reliance on the marshal's return of service was unjustified and that, even if, arguendo, it were justified, the presumption of service had been rebutted; the court further held that plaintiffs/appellants had not made the requisite showing of due diligence in attempting to effect timely service. On appeal Mr. and Mrs. Roberts enumerate the following errors: the court erred in dismissing the claim for damages on the malpractice count, the court erred in dismissing the claim for fraud, and the court erred in dismissing Mrs. Roberts' claim for loss of consortium. We granted an interlocutory appeal for the purpose of determining whether the case sub judice is controlled by Brim v. Pruitt, 178 Ga.App. 321, 342 S.E.2d 690 (1986), wherein it was held that service upon an apparent agent, coupled with due diligence and actual knowledge of the suit on the part of the defendant, is sufficient to constitute substantial compliance with OCGA § 9-11-4(d)(7); and to address appellants' remaining enumerations of error. Held:

In Brim v. Pruitt, supra, this court held that service upon a visitor in the defendant's home, who promptly turned over the papers to the defendant upon arrival a short while later, constituted such substantial compliance with OCGA § 9-11-4(d)(7) as to satisfy the notice requirements embraced in that Code section. We emphasized in Brim the extreme diligence shown by the plaintiff in attempting to trace the defendant's whereabouts through a series of changes of residence, both in and out of the state.

In the instant case appellants have demonstrated no such diligence and therefore are not entitled per se to the benefit of the liberal construction of the statute advocated and implemented in Brim. We recognize several significant factual distinctions between that case and the one at bar: most notably, that in the instant case service was attempted at defendant Bienert's last known place of business, where he had had his practice for a number of years; that service was made upon Bienert's former long-time partner and apparent agent; and that, according to the record, the latter apparently made no attempt to inform the marshal either as to his own status as agent vel non or as to Bienert's new place of business. Because of these factual situations, it may well be that appellants were initially justified in relying on the marshal's return of service. Appellants' receipt of defendant Bienert's responsive pleading, however, should have put them on notice and inspired them, through counsel, to exercise the greatest possible diligence to ensure proper and timely service. There is ample authority to support the principle that service of process on an apparent agent is insufficient to meet the requirements of the governing Code section, supra; see, e.g., News-Press Pub. Co. v. Kalle, 173 Ga.App. 411, 326 S.E.2d 582 (1985); Thaxton v. Ga. Insurer's Insolvency Pool, 158 Ga.App. 407, 280 S.E.2d 421 (1981). It is well settled, moreover, that it is the plaintiff who has the burden of proving diligence in attempting to make proper service as quickly as possible. Jarmon v. Murphy, 164 Ga.App. 763, 298 S.E.2d 510 (1982).

In view of the facts that Bienert's new office was located only a relatively short distance from his former place of business (in College Park, a Fulton County city adjacent to East Point) and that his new business address (as well as his residence address) could have been easily obtained by a number of means--including the simple expedient of consulting the Atlanta metropolitan area telephone directory or calling Directory Assistance--we must agree with appellee Bienert that nearly 300 days after the filing of the complaint is an unreasonably long time to effect proper service. We hold, therefore, that the case at bar does not come within the ambit of Brim v. Pruitt, supra, or of Sanders v. Johnson, 181 Ga.App. 39, 351 S.E.2d 216 (1986), which followed Brim. See Trammel v. Nat. Bank, 159 Ga.App. 850, 285 S.E.2d 590 (1981); Williams v. Mells, 138 Ga.App. 60, 225 S.E.2d 501 (1976); see also the dissenting opinion in Sanders v. Johnson, supra. We note obiter that the fact that Brim and Sanders, supra, involved service at the defendant's dwelling rather than at his place of business, as in the instant case, is not a factor in our finding Brim and Sanders inapposite here.

2. The record shows that on August 11, 1986, appellee Bienert filed a motion for summary judgment addressed not to the process issue but to the substantive issues set forth in appellants' complaint. When a defendant files a motion for summary judgment on the merits of the case without having raised an issue as to sufficiency of service of process, he has made a general appearance and thereby waived any alleged defect in the service. Bigley v. Lawrence, 149 Ga.App. 249, 250, 253 S.E.2d 870 (1979). In his answer appellee had raised not only the defenses pertaining to lack of proper service but also those addressed to the substantive allegations of the complaint.

The general rule is that if there is a defect in service of process, "any act by which one consents to the jurisdiction of the court constitutes a waiver. [cits.]" Georgia Power Co. v. O'Bryant, 169 Ga.App. 491, 492, 313 S.E.2d 709 (1984). Thus the Supreme Court has held that "[b]y pleading to the merits of the case and not raising any defense of lack of jurisdiction of the person (defective process) or improper venue, the appellee waived any objection he may have had under the CPA." (Emphasis supplied). Kiplinger v. Oliver, 244 Ga. 527, 528, 260 S.E.2d 904 (1979). This decision is but one of a long line of cases reiterating this concept. In Stallings v. Stallings, 127 Ga. 464(6), 56 S.E. 469 (1906), it was held that "[t]he rule that appearance and pleading waives irregularities in the process or its absence, and the service thereof, and the other rule which declares that if a defendant appear and plead to the merits, without pleading to the jurisdiction and without excepting thereto, he admits the jurisdiction of the court, have no application so as to effect a waiver where the defendant excepted to the service, moved to dismiss the case for want of service, and pleaded to the jurisdiction at the time of filing his defense." Stallings only followed an older line of precedent. "Appearance and pleading in writing to the merits will waive service, but not if want of service be likewise pleaded at the same time. Matters in abatement and in bar may be mixed in the same answer, and one defense will not defeat another." Western, etc., R. Co. v. Pitts, 79 Ga. 532(3), 4 S.E. 921 (1887). "Pleading to the merits does not admit the...