The Court of Appeals of Georgia ruled that notice of a lawsuit does not waive the defense of lack of service. IMC Construction Company, Inc. v. Mitchell, A22A0995, 2022 WL 4493625 (Sept. 28, 2022). Essentially, notice of the suit is insufficient in the absence of actual service in compliance with O.C.G.A. § 9-11-4. Id.
As a general rule, “when a Georgia resident is served with process in an action brought in a Georgia court, he must assert the defense of lack of personal jurisdiction at the earliest opportunity, or else it is waived.” Tavakolian v. Agio Corp., 304 Ga. App. 660, 662-663 (1), 697 S.E.2d 233 (2010); see McCarthy v. Ashment, 338 Ga. App. 858, 860 (1), 790 S.E.2d 651 (2016) (noting that “the lack of personal jurisdiction arising from the defects of invalidity of service or improper venue may be waived if such defenses are not made either by motion under O.C.G.A. § 9-11-12 or in the original responsive pleading”). However, “if there was no valid service of process, it is immaterial whether the defendant had actual notice of the pendency of the action.” Devendorf v. Midkiff, 184 Ga. App. 722, 362 S.E.2d 398 (1987) (citations and punctuation omitted); accord Heard v. Hopper, 233 Ga. 617, 618 (2), 212 S.E.2d 797 (1975).
In the IMC Construction Company matter, the plaintiff filed suit against 4 defendants, including an entity and the owner/registered agent of that entity. IMC Construction Company, Inc., 2022 WL 4493625 at *1. In February 2019, a process server attempted service on the owner defendant, in his individual capacity, and the complaint and summons were left with that Defendant's son at their residence. Id. The return of services stated that the owner defendant was inside the house at the time of service. Id. The plaintiff filed a certificate of acknowledgment indicating service of the defendant company through the Secretary of State weeks later. Id. The plaintiff then moved for default against the two defendants. Id. Nine months later, without filing an answer, company and owner defendants had an attorney file an entry of appearance and a motion to set aside the default judgment that had been entered against them. Id. The owner stated that he had never been served because his son never gave him documents and further explained that the company had never been served via its registered agent. Id.
First, the Court of Appeals found that there was no service on the company because no evidence had been submitted stating such other than the acknowledgment of service on the secretary of state. Id. at *3. This was deemed insufficient because substituted service is only allowed after attempted service. Id. at *2. Specifically, service on a corporation “shall be made by delivering a copy of the summons attached to a copy of the complaint” to the president, other officer, or a managing or registered agent. O.C.G.A. § 9-11-4 (e) (1) (A). However, “when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation or foreign corporation upon whom any process, notice, or demand may be served.” Id. As this Court has explained, “substituted service upon the Secretary of State is proper only after a plaintiff has attempted to serve the persons listed in the statute and ‘for any reason’ that attempt is unsuccessful.” IMC Construction Company, Inc., 2022 WL 4493625 at *2 quoting Stone Exchange v. Surface Tech. Corp. of Ga., 269 Ga. App. 770, 772, 605 S.E.2d 404 (2004) (emphasis in original). Since the only evidence was a return of service on the individual, the company was deemed not served.
Second, because there was no service, the Court distinguished Tavakolian, a case in which a defendant was found to have waived lack of service as a defense because of knowledge of the suit, because in the matter presently before the Court there simply was no service. Id. at *3.
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