Whatley's Interiors, Inc. v. Anderson

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE; McMURRAY, P.J., and BENHAM
• Citation: Whatley's Interiors, Inc. v. Anderson, 336 S.E.2d 326, 176 Ga.App. 406 (Ga. App. 1985)
• Decision Date: 11 October 1985
• Docket Number: No. 71051,71051
• Parties: WHATLEY'S INTERIORS, INC. v. ANDERSON et al.

Page 326

336 S.E.2d 326

176 Ga.App. 406

WHATLEY'S INTERIORS, INC. v. ANDERSON et al.

No. 71051.

Court of Appeals of Georgia.

Oct. 11, 1985.

Lynn H. Whatley, Atlanta, for appellant.

James Booker, Atlanta, for appellees.

BANKE, Chief Judge.

Whatley's Interiors filed this action on April 19, 1982, seeking to recover damages from defendant Halkirk Corporation for its breach of an alleged contractual obligation to pay for labor and materials expended on certain real property improvements. The complaint also sought to foreclose a materialman's lien on the property in question, naming the following as the alleged owners of the property: "David D. Anderson, as Nominee for a Partnership Composed of Walter M. Madden, Laurence J. Hendrickson, Carolyn J. Stone, and Michael L. Kirkpatrick, Individually ..."

Defendants Madden, Hendrickson, and Stone were never served with process and were subsequently voluntarily dismissed from the action by the appellant, leaving the case pending only against Halkirk Corporation, Kirkpatrick, and Anderson. The trial court dismissed each of these defendants, ruling that Kirkpatrick had never been served in his individual capacity, that service upon Halkirk Corporation, of which Kirkpatrick was president, was insufficient, and that Anderson had no ownership interest in the property. Service on Halkirk Corporation had been attempted by leaving a copy of the complaint and summons with Kirkpatrick's personal secretary, Ms. Evelyn Holmes, at the Georgia offices of the corporation. On appeal, the plaintiff does not challenge Kirkpatrick's dismissal as a defendant in his individual capacity but asserts that the suit should not have been dismissed with respect either to the corporation or to Anderson. Held:

1. The plaintiff's motion to strike an affidavit submitted by Halkirk Corporation as an attachment to its brief on appeal is granted. It is axiomatic that exhibits contained in an appellate brief which do not appear in the record or transcript cannot be considered by this court. Strickland v. American Motorists Ins. Co., 149 Ga.App. 690, 691, 256 S.E.2d 92 (1979).

2. The trial court was authorized to conclude, on the basis of the record before it, that Kirkpatrick's personal secretary was not an agent of the corporation upon whom service of the corporation could be effected pursuant to OCGA § 9-11-4(d). In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee's position be "such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him." Scott v. Atlanta Dairies Co-Op, 239 Ga. 721, 724, 238 S.E.2d 340 (1977). "It is not necessary that the employee in question be an officer or that he be authorized to enter into contracts on behalf of the corporation." Ogles v. Globe Oil Co., 171 Ga.App. 785, 786, 320 S.E.2d 848 (1984). See also Browning v. Europa Hair, 244 Ga. 222, 224, 259 S.E.2d 473 (1979). However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization. See Headrick v. Fordham, 154 Ga.App. 415(1), 268 S.E.2d 753 (1980). Accord Citizens Bank of Hapeville v. Alexander-Smith Academy, 226 Ga. 871, 178 S.E.2d 178 (1970); Adair Realty Co. v. Greenbriar-Fulton, 149 Ga.App 669, 255 S.E.2d 128 (1979). Compare Southwest Community Hosp. & c. v. Thompson, 165 Ga.App. 442(4), 301 S.E.2d 501 (1983) (where it was shown that the secretary to whom the process was delivered regularly accepted service on behalf of the corporation and was knowledgeable about the procedures to be followed in such situations); Northwestern Nat. Ins. Co. v. Kennesaw Transp., 168 Ga.App. 701, 309 S.E.2d 917 (1983) (where there was at least some indication that the employee in question was in charge of the office where service was made).

Where the evidence...