Space Coast Credit Union v. Groce, A16A0369.

• Decision Date: 02 May 2016
• Docket Number: No. A16A0369.,A16A0369.
• Citation: 337 Ga.App. 24,785 S.E.2d 663
• Parties: SPACE COAST CREDIT UNION v. GROCE.
• Court: Georgia Court of Appeals

337 Ga.App. 24
785 S.E.2d 663

SPACE COAST CREDIT UNION
v.
GROCE.

No. A16A0369.

Court of Appeals of Georgia.

May 2, 2016.

785 S.E.2d 664

Ellis Painter Ratterree & Adams, Kimberly Cofer Harris, Savannah, for Appellant.

PETERSON, Judge.

337 Ga.App. 24

Space Coast Credit Union (“Space Coast”) filed a lawsuit against Robert Steve Groce to reinstate a first priority deed to secure debt. When Groce did not file an answer, Space Coast moved for summary judgment. The trial court denied the motion, ruling that Groce had not been served properly. Space Coast brought this interlocutory appeal, arguing that the trial court had erred in concluding that (1) Groce was mentally impaired and unable to accept service when it was attempted and (2) a process server is required to interact and speak with a defendant at the time of service. Because the trial court did not abuse its discretion in finding that service was not proper when the process server merely left the papers at Groce's bedside as he lay semi-conscious (at best), we affirm.

Groce failed to file a responsive brief, and so he is deemed to admit the statement of facts as set out by Space Coast to the extent supported by the record. See Green v. Waddleton, 288 Ga.App. 369, 369 n. 1, 654 S.E.2d 204 (2007). So viewed, Groce refinanced the first priority loan secured by his home with the same lender that he had previously used, Eastern Financial Florida Credit Union (“EFFCU”). Shortly after the closing, EFFCU erroneously executed and filed a cancellation of the first priority deed, even though the deed had not

337 Ga.App. 25

been satisfied in full. Years later, EFFCU's successor company, Space Coast, filed this lawsuit, seeking to reinstate the deed.

A week after the complaint was filed, a process server attempted to serve Groce at the property that secured the loan. The

785 S.E.2d 665

process server averred that he spoke to a woman there who claimed to be Groce's daughter. She said that her father did not live there but would not share his whereabouts. A little more than a week later, the same process server attempted to serve Groce at a nearby nursing home. In his affidavit, the process server said that Groce, who appeared to be in his late 60s or early 70s, “was sleeping in his bed and in and out of consciousness” and was “unable to take the papers.” The process server said that he put the papers on a table next to the bed.

Groce filed no answer to the suit, and Space Coast filed an unopposed motion for summary judgment, arguing that because the underlying indebtedness on the loan had not been satisfied, the cancellation did not re-convey title to Groce. Space Coast sought a declaratory judgment that the deed remains the first priority deed and that the cancellation was and void. Having taken testimony from the process server at a hearing,¹ the trial court denied the summary judgment motion on the basis that Groce was not properly served and therefore the court lacked personal jurisdiction over him. Finding that the affidavit of service provided evidence that Groce was “mentally impaired” at the time of service and the process server's live testimony at the hearing was insufficient to overcome this evidence, the trial court found that Groce was incapable of accepting the service documents when they were left at his bedside. The trial court found that the process server “was aware of the Defendant's condition” and “could not have reasonably believed that the Defendant was aware service was being attempted.” The trial court issued a certificate for immediate review, and we granted Space Coast's application for interlocutory appeal.

“Absent a showing of an abuse of discretion, a trial court's finding of insufficient service of process must be affirmed.” Franchell v. Clark, 241 Ga.App. 128, 131(3), 524 S.E.2d 512 (1999). “The trial court as factfinder must decide whether the evidence overcomes the facts reflected in a return of service, and we will uphold that finding if it is supported by any evidence.” Holmes & Co. of Orlando v. Carlisle, 289 Ga.App. 619, 620(1), 658 S.E.2d 185 (2008).

337 Ga.App. 26

1. Space Coast argues that the trial court erred by finding that Groce was mentally impaired at the time of service. It is difficult to evaluate this factual finding, because no transcript was made of the hearing. Moreover, it is unclear exactly what role this finding played in the trial court's analysis. The trial court referenced OCGA § 9–11–4(e)(4), which provides that a person “who has been judicially declared to be of unsound mind or incapable of conducting his or her own affairs and for whom a guardian has been appointed” must be served via their guardian or guardian ad litem. But the trial court also recognized that there is no evidence in this case that Groce has been declared legally incompetent, and the court did not say explicitly that the procedure outlined in OCGA § 9–11–4(e)(4) must be followed here.

If the trial court did measure Space Coast's service attempts against the rule of OCGA § 9–11–4(e)(4), the trial court erred. Unless and until a court determines that a person is civilly incompetent or in need of a guardian, the requirements for serving someone who is incompetent do not apply and any lawful means of service will confer personal jurisdiction over him. Trammel v. Bradberry, 256 Ga.App. 412, 415(1), 568 S.E.2d 715 (2002) (physical...