Shuler v. Akpan, A21A1475

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Dillard, Presiding Judge.
• Citation: 362 Ga.App. 811,870 S.E.2d 235
• Parties: SHULER v. AKPAN.
• Docket Number: A21A1475
• Decision Date: 01 March 2022

362 Ga.App. 811
870 S.E.2d 235

SHULER
v.
AKPAN.

A21A1475

Court of Appeals of Georgia.

March 1, 2022

Raymond Christopher Humphrey, Atlanta, for Appellant.

Kevin James Tallant, Jonah Blue Howell, Cumming, for Appellee.

Dillard, Presiding Judge.

870 S.E.2d 236

362 Ga.App. 811

There are things the law allows, but does so begrudgingly. Service by publication is one of those things—"a notoriously unreliable means of actually informing interested parties about pending suits."¹ For this reason, the "constitutional prerequisite" for service by publication is a "showing that reasonable diligence has been exercised in attempting to ascertain [a defendant's] whereabouts."² That important prerequisite has not been satisfied in this case.

Geraldine Akpan—in her official capacity as the personal representative of the Estate of Georgianna Parker—filed suit against Dawn Shuler, Herbert Shuler, and Tracy Shuler, alleging, inter alia , that these defendants conspired to defraud Parker of assets and property prior to her death. Following the defendants’ failure to timely answer Akpan's complaint (after service by publication), the trial court entered a default judgment against them. Tracy Shuler now appeals, arguing the trial court erred in denying her motion to set aside the default judgment on the ground that Akpan's attempt to serve her by publication was invalid. Because Akpan failed to strictly comply with the requirements for service by publication delineated in OCGA § 9-11-4 (f) (1) (A), we reverse.

The record shows that on September 24, 2018, Akpan—in her official capacity as the personal representative of the Estate of Georgianna Parker—filed suit in the Superior Court of Gwinnett County against Dawn Shuler, Herbert Shuler, and Tracy Shuler. In doing so, Akpan alleged, inter alia , that the defendants conspired to defraud the elderly and memory-impaired Parker of assets and property during the period of time leading up to her death. Importantly, the record includes two sheriff's entry-of-service forms, both of which were filed on October 8, 2018—one concerning the attempted service of Dawn Shuler on three separate occasions, and the other documenting the two attempts made to serve Herbert Shuler. In stark contrast, the record includes no entry-of-service form concerning Tracy Shuler.

On December 3, 2018, Akpan filed a motion to appoint a special process server, specifically requesting service of "the Complaint for Damages on Defendants Dawn Shuler and Herbert Shuler (collectively referred to hereinafter as the ‘Defendants’)." And in that motion, Akpan noted the sheriff's inability "to perfect service upon the Defendants." Less than one week later, the trial court granted that

362 Ga.App. 812

motion. Other than in the case caption, neither Akpan's motion nor the trial court's order mentions Tracy Shuler.

On February 11, 2019, still unable to perfect service of process, Akpan filed a motion seeking service by publication. After explaining that even the special process server failed to perfect service, Akpan alleged that "both of said defendants are necessary or proper parties to this action, and furthermore a claim exists against both of them as more fully pled in Plaintiff's Complaint."³ And in support of her motion, Akpan attached two affidavits, in which the special process server recounted in considerable detail her unsuccessful attempts to perfect service upon Dawn and Herbert Shuler. Again, other than naming her in the case caption, neither Akpan's motion nor the special process server's affidavits indicated that there had been any attempt to effect service upon Tracy Shuler. Nonetheless, on February 12, 2019, and without holding an evidentiary hearing, the trial court granted Akpan's motion for service by publication, noting that "Defendants Dawn Shuler, Herbert Shuler[,] and Tracy Shuler, on whom service is to be made in the above styled civil action, after due diligence, cannot be found within the State of Georgia or conceal themselves to avoid service of the summons ...."

Despite the publication, none of the defendants filed answers; and as a result, on July

870 S.E.2d 237

29, 2019, Akpan filed a motion for a default judgment. On September 4, 2019, the trial court held a hearing on the matter, which was either not transcribed or not included in the record. Then, on October 10, 2019, the court issued a default-judgment order, awarding monetary damages against all three defendants as joint tortfeasors. In addition, the order noted that service by publication was warranted because both the sheriff and the special process server had been unable to perfect service upon the "defendants," but without recounting the details of those efforts as to each specific defendant.

Nearly eight months later, Tracy Shuler learned about the lawsuit and default judgment after funds from her paycheck were garnished. Thereafter, Tracy retained counsel and, on August 12, 2020, she filed a motion to set aside the default judgment. In this motion, Tracy argued that service by publication was invalid because Akpan failed to comply with the mandatory statutory requirements for such service, and therefore, the trial court lacked personal jurisdiction over her. Akpan filed a response, and the trial court held a hearing,

362 Ga.App. 813

after which it denied Tracy's motion. Subsequently, Tracy filed an application for discretionary review, which we granted. This appeal follows.

Absent an abuse of discretion, we will not reverse a "trial court's refusal to set aside a default judgment."⁴ But the standard of review for a question of law is de novo , "during which we owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review."⁵ With these guiding principles in mind, we will address Tracy's claim of error.

Tracy contends the trial court erred in denying her motion to set aside the default judgment based on a lack of personal jurisdiction. Specifically, she maintains that Akpan's attempt to serve her by publication was invalid because it failed to comply with the mandatory requirements delineated in OCGA § 9-11-4 (f) (1) (A). We agree.

The Supreme Court of the United States has held that "the Due Process Clause requires every method of service to provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ "⁶ Similarly, the Supreme Court of Georgia has explained that "whether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding."⁷ And importantly, because notice by publication is "a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts."⁸

362 Ga.App. 814

Nevertheless, Georgia's Civil Practice Act allows for service by publication in limited circumstances.⁹ The requirements for obtaining

870 S.E.2d 238

an order for service by publication are detailed in OCGA § 9-11-4 (f) (1) (A), which, in relevant part, provides that

[w]hen the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons ....

And given its concerns regarding due process, the Supreme Court of Georgia has held that service must be made as provided by the Code section, and "substantial compliance" in matters involving service of process is insufficient.¹⁰ In fact, our Supreme Court has further held that there was no authority to dispense with the clear requirements of the Code section "merely because the defendant may otherwise obtain knowledge of the filing of the action."¹¹ Furthermore, while the trial court makes the initial decision about the legality of notice, the appellate courts "must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate."

In this matter, Tracy contends Akpan's attempt to serve her by publication was invalid because she failed to comply with OCGA § 9-11-4 (f) (1) (A). In fact, Tracy argues Akpan's attempt to serve the defendants prior to publication...