Serving a Lawsuit in Georgia: Understanding the Sheriff’s Entry of Service Form

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In Georgia, with some exceptions, the opposing party a/k/a the defendant must be “personally” served before a lawsuit can go forward. This means the lawsuit must be physically handed to the defendant. If the defendant is a corporation, service is made on the corporation’s registered agent. (Every corporation in Georgia is required to appoint a registered agent—this information can be found on the Georgia Secretary of State’s website.)

Service usually begins by providing the sheriff a copy of the complaint, summons, and sheriff’s entry of service form. Service by the sheriff typically takes two to three weeks, during which time a sheriff’s deputy will complete the form and mail it back to the filing party. What does this form mean? Below is the relevant part of the form and how we address the various types of service in our office:

If the “personal” box is completed (box # 1 above), almost always, the sheriff has handed the paperwork to the opposing party and service is complete. Now we can get to work on the case.

If the “notorious” box is checked (box # 2 above)  this means the sheriff has handed the paperwork to someone over 18 years old who lives the opposing party. Georgia law allows notorious service, but, in our experience, we should be cautious in these situations because notorious service is sometimes unreliable and can challenged. Fortunately, an answer is due from the opposing party 30 days after service. If service isn’t contested in the answer, we no longer need to worry about service. If service is contested in the answer and seems reasonable, we will discuss with you the merits of repeating service. Ultimately, getting proper service is important because if we don’t have proper service, any judgment we obtain might be overturned.

The “corporation” box  (box # 3 above) obviously applies to serving a corporation. If this is checked, generally, this ends up being successful service.

If the “better address” box is checked (box # 5 above)  this means the person living at the address provided has told the sheriff that opposing party has moved.

Finally, the dreaded “non-est” box  box # 5 above): this means the sheriff has gone to the address provided but was unable to serve the defendant. Most importantly, this means the lawsuit can’t continue. At this point, we need to determine if we have a good address for the opposing party. A defendant can be served at home, work, church, etc. If we are confident we have a good address despite the sheriff being unsuccessful, we recommend hiring a private process server. Unlike the sheriff, a private process server will work with us and has a much better chance of successfully serving the defendant. The cost for a private process server is about $100, but goes up depending on difficulty. If we aren’t confident that we have a good address, we recommend hiring an investigator to find a good address for the defendant. This is more expensive and will cost $250 and upwards.

If we still can’t find the defendant or believe the defendant is avoiding service, we’re entitled to ask the court to allow us to serve the opposing party by publication. We’ll address service by publication in a separate blog.

We hope this gives you a better idea regarding service of a lawsuit in Georgia. If you have any questions, please don’t hesitate to call us at 404-382-9994.

Foreclosure Confirmations: True Market Value Revisited

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Conyers 138, LLC et al. v. ONH1, LLC, A17A0145, June 2, 2017, concerns the unique Georgia proceeding that allows foreclosures to be retroactively confirmed by petition in Superior Court. The purpose of a confirmation is to verify the property sold at foreclosure for the fair market value, thereby permitting the lender to sue the borrower to recover the difference between the loan amount and the amount at foreclosure. If the property sells for less than fair market value at the foreclosure, then the lender can’t pursue a deficiency claim against the borrower.

In Conyers 138, LLC, the lender’s appraiser testified the market value of the property was $2,510,000, but to arrive at the fair market value, he subtracted $765,000 for demolition because he contended the best use of the property was as raw, vacant land. The borrower argued that estimate of the demolition cost was inflated because the demolition company used a faulty methodology. The Court of Appeals rejected this argument, stating disputes such as which methodology to apply are factual disputes best evaluated and decided by the trial judge. “The trial judge is the judge of credibility of the witnesses and of the weights to be given to the evidence.” (citations and punctuation omitted).

Since there was some evidence presented that supported the trial court’s decision, the Court of Appeals refused to disturb the trial court’s ruling. The takeaway is that the trial court has a lot of leeway and that it’s an uphill battle to successfully appeal a trial court’s decision in a foreclosure confirmation proceeding.

Slip and Fall Personal Injuries Part Three

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Current Law

In 2009, American Multi-Cinema, Inc. et al. v. Brown et al., the Supreme Court reaffirmed Robinson. Taking note of Robinson’s admonition that “routine” issues of premises liability are not subject to summary adjudication unless plain, palpable, and undisputed evidenced shows otherwise,” the Court affirmed the lower court’s finding that the trial court erred in granting summary judgment to the defendant. 285 Ga. 442, 445, 448.

The decision whether to recognize the [invitees] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances. It is one of the ‘routine’ issues of premises liability—’the negligence of the defendant’—that is “generally not susceptible of summary adjudication” unless the “plain, palpable, and undisputed” evidence requires otherwise. (citations omitted). At 446.

A hazard has been defined as “[a] danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.” Gresham v. Bell’s Food Mkt, 244 Ga. App. 240, 241 (2000) (quoting Black’s Law Dictionary). Either actual or constructive knowledge of the hazard by a defendant will satisfy the first prong. Robinson, at 748. Here, there is both. Defendant admits traversing the stairway, including on the date in question. Defendant therefore has actual knowledge of the alleged hazard.

In analyzing an injured party’s knowledge of a hazard, “Robinson reminded all courts that the plaintiff’s lack of ordinary care for personal safety is generally not susceptible of summary adjudication and that only when the evidence is plain, palpable, and undisputed is summary judgment authorized.” Mac Intern.-Savannah Hotel, Inc. v. Hallman, 265 Ga. App. 727 (2004) (referencing Robinson at 748).

This quick three-part series on Georgia slip and fall law is just the tip of the iceberg. Please call us to discuss your specific situation.

Slip and Fall Personal Injuries Part Two

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Robinson v. Kroger: Surviving Summary Judgment

Following up on our previous blog, the Georgia Supreme Court in 1997 changed the slip and fall landscape. The Court ruled that “an [injured party’s] failure to exercise ordinary care for personal safety is not established as a matter of law by the [injured party’s] admission that she did not look at the site on which she subsequently placed her foot”).

After Robinson, an injured party need only prove (1) that the landowner had actual or constructive knowledge of the hazard, and (2) that the injured party lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner.

Robinson is important because it shifts the focus from the injured party’s conduct to the landowner’s conduct. After Robinson, if the injured party shows the landowner knew about the hazard, then the burden shifts to the landowner to show the injury was caused by the injured party’s negligence (intentional disregard of a known risk or failure to exercise ordinary care for one’s personal safety). This makes it much easier for injured parties to survive summary judgment and get their cases in front of a jury.

Robinson remains good law today.

Slip and Fall Personal Injuries Part One

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Previous Georgia Law

Under Georgia law, a landowner has a nondelegable statutory duty to keep its premises and approaches safe for a customer or guest (lawyers refer to such persons as “invitees”). OCGA § 51-3-1. Georgia law states: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

Analysis of Georgia premises liability law begins with Alterman Foods v. Ligon, 240 Ga. 620 (1980). Alterman Foods established a two-prong test. To recover, injured parties had to show (1) the landowner had actual or constructive knowledge of hazard, and (2) the injured party was without knowledge of the hazard (or for some reason attributable to landowner was prevented from discovering the hazard). After Alterman and for the next 17 years, the conduct of the injured party was the focus. Few slip and fall cases injury cases survived summary judgment. A summary judgment is when a court rules as a matter of law for the landowner; this means the judge and not a jury decides the case.

Recognizing that the pendulum had swung too far in favor of landowners, the Georgia Supreme Court, in Robinson v. Kroger, found that “routine issues of premises liability, i.e., negligence, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” 268 Ga. 735,748 (1997) (“an invitee’s failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee’s admission that she did not look at the site on which she subsequently placed her foot”).

In part two, we will discuss current current slip and fall law in Georgia.