VASILE Et Al. v. ADDO

FOURTH DIVISION
DILLARD, P. J.,
RAY and SELF, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

April 13, 2017

In the Court of Appeals of Georgia
A17A0553. TIMIS VASILE et al. v. ENOCH ADDO.

SELF, Judge.

In this discretionary appeal, Timis Vasile, individually and d/b/a Timis Auto

Sales (“Vasile”), and Roga Import Export, LLC (“Roga”) appeal the trial court’s

denial of their second motion to set aside a default judgment. For reasons that follow,

we agree with appellants as to Vasile, but disagree as to Roga.

So viewed, the record shows that on September 3, 2015, Enoch Addo sued

appellants for breach of contract, money had and received, quantum merit, and unjust

enrichment arising from an agreement whereby appellants allegedly consented to

receive on behalf of Addo, the amount of $72,000, via a wire transfer. Addo sought

judgment in the amount of $64,000, plus interest and attorney fees. Addo alleged that
the money was wired into Roga’s bank account and then transferred by Vasile to an

account in the name of Timis Auto Sales, but never turned over to Addo.

On September 10, 2015, Addo attempted to serve Vasile individually and as

the registered agent for Roga, but the deputy sheriff’s return of service was returned

non est with a notation that “Timis Vasile owns residence, but rents the home out,

defendant is possibly in Romania.” On October 27, 2015, Addo moved for service

upon Vasile by publication and by mail, averring that he rents the downstairs of

Vasile’s residence and that Vasile is aware of the lawsuit. According to Addo, Vasile

told him before the filing of the lawsuit that he was in a “Mexican jail” and has sent

hundreds of threatening text messages to Addo about the lawsuit, including one on

September 22, 2015, stating that he hopes Addo dies of cancer and that “God would

punish [Addo] for suing [Vasile] while knowing he was in prison,” and another on

September 29, 2015, asking “when is the court date?” Addo’s attorney also filed an

affidavit stating that,

[d]espite the effort at service, affiant has been unsuccessful in serving
[Vasile] due to [his] continuing willful and deliberate efforts to avoid
service, to wit: Prior to the filing of the lawsuit, Vasile told the Plaintiff
he was in a “Mexican jail” but refused to provide the name of that jail.
Prior to the filing of this Complaint, Vasile has also communicated with
the Plaintiff via the texting “app” “What’s App” so it is highly doubtful

2
 he would have access to a smart phone or computer while he was in a
Mexican prison. Further, after the lawsuit was filed, Vasile somehow
learned of the filing of the lawsuit and has sent and has continued to
send many threatening text messages to [Addo]. Also, as noted above,
Vasile’s tenant told the Deputy that Vasile was in Romania so that is
more likely the truth than Vasile being in a Mexican prison. . . . It is
clear that [Vasile] has personal knowledge of the [complaint] and has
personally communicated with [Addo] but [Vasile] will not allow
himself to be served.

The trial court granted the motion on November 2, 2015, finding that Vasile

“appears to remain a resident of the State of Georgia and has actual knowledge that

this action has been filed and is pending, and that the sole reason for [Addo’s] failure

to accomplish personal service. . . has been the efforts of [Vasile] to secret himself

and to conceal himself to avoid service.” On December 11, 2015, the notice of

publication was filed with the court. In addition, Addo requested that the clerk of the

Gwinnett County State Court mail a stamped-filed copy of the notice to Vasile’s

alleged address. Beginning on December 17, 2015, the notice was published in the

Gwinnett Daily Post for four consecutive weeks.

Addo effected substitute service upon Roga by serving the Georgia Secretary

of State via certified mail. On December 11, 2015, the Secretary of State issued a

3
certificate of acknowledgment, which indicated that the Secretary of State received

the “complaint, summons, [and] attorney certification.”

On February 4, 2016, Addo filed a request for default judgment, alleging that

“[t]he Defendant Roga. . . was served as follows: (a) by attempting Personal Service

on its Registered Agent [(]which was not successful[)]; (b) by Certified Mail to its

Registered Agent at its principal office; and (c) by service on the Secretary of State

via Certified Mail.”1 On February 17, 2016, the trial court entered a default judgment

against appellants for failure to file an answer or other responsive pleadings. The

order provided as follows: “Judgment by default is hereby entered against

[appellants], jointly and severally, in favor of . . . A[ddo] in the principal sum of

$64,000.00 plus interest (18% per annum).”

In March 2016, appellants answered the complaint and moved to set aside the

default judgment, contending that Addo committed a fraud upon the court by alleging

that he was unaware of Vasile’s whereabouts when he moved for service by

1
Attached to Roga’s brief in support of its second motion to set aside is a letter
filed with the Secretary of State from Addo’s attorney stating as follows: “[P]lease
find enclosed two (2) copies of such process, notice, or demand. This letter also
constitutes our certification in writing to you. . . that we have forwarded by registered
or certified mail or statutory overnight delivery such process, notice or demand to the
most recent registered office listed on the records of the Secretary of State and that
service cannot be effected at such office.”

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publication and effected substitute service on the Secretary of State. In an affidavit

filed contemporaneously with the motions, Vasile averred that he was in Romania

from June 2, 2015, until October 25, 2015; that Addo resided in a basement apartment

of his home and knew Vasile was out of the country; that at the time Addo moved for

service by publication, he was aware that Vasile had returned from Romania and was

living in the upstairs portion of the home; that he has never been personally served

with the lawsuit or “served by mail with anything pertaining to [the] lawsuit” and did

not know of its existence until March 17, 2016, when his attorney told him to get a

copy from the court; and, that he never received any money on behalf of Addo.

In April 2016, appellants’ counsel withdrew from the case. On May 10, 2016,

the trial court denied appellants’ motion to set aside. On May 21, 2016, appellants’

new counsel then filed a second motion, moving to set aside the default judgment for

lack of personal jurisdiction based upon improper service, pursuant to OCGA § 9-11-

60 (d) (1). Roga argued that the court lacked personal jurisdiction because service

was defective pursuant to OCGA § 14-11-209 (f) and Vasile argued that the court

lacked personal jurisdiction because service was defective pursuant to OCGA § 9-11-

4 (f). On August 8, 2016, the trial court summarily denied the motions and we granted

appellants’ application for discretionary appeal.

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 1. As a threshold matter, Addo challenges the trial court’s consideration of

appellants’ second motion to set aside, contending that it was barred by the doctrine

of res judicata. Addo claims that appellants should have raised the issue of improper

service in their first motion to set aside when they alleged fraud. In Holloway v.

McCarthy, 151 Ga. App. 828 (261 SE2d 732) (1979), this Court held that the denial

of a defendant’s first motion to set aside a default judgment did not bar the

defendant’s second motion to set aside because the motions attacked the judgment on

different grounds. Id. at 829 (1). In this case, Vasile’s first motion to set aside

attacked the judgment on the ground that Addo perpetrated a fraud against the trial

court, and the second motion to set aside attacked the judgment on the ground that the

trial court lacked personal jurisdiction due to improper service. Accordingly, “the

prior ruling of the trial judge against [appellants’] motion to set aside the judgment,

from which ruling no appeal was made, was not res judicata.” (Citation and

punctuation omitted.) Id. Compare Guthrie v. Wickes, 295 Ga. App. 892, 894 (2) (673

SE2d 523) (2009) (order denying application for discretionary review invokes the

doctrine of res judicata when the judgment appealed from is final and on the merits).

2. In their first enumeration of error, appellants contend that the trial court

should have set aside the default judgment against Vasile because service was

6
improper under OCGA § 9-11-4 (f). Appellants argue that (a) one attempt at service

does not meet the requirement of “due diligence,” and (b) the clerk of court failed to

mail notice to Vasile of the service by publication as required by the statute.2

We review a ruling on a motion to set aside for abuse of discretion and affirm

if there is any evidence to support it. Hooks v. McCondichie Properties 1, 330 Ga.

App. 583, 584 (767 SE2d 517) (2015). “Factual disputes regarding service are to be

resolved by the trial court, and the court’s findings will be upheld if there is any

evidence to support them.” (Citation and punctuation omitted; emphasis in original.)

Vibratech, Inc. v. Frost, 291 Ga. App. 133, 140 (1) (b) (661 SE2d 185) (2008).

However, we review a question of law on appeal under a de novo standard of review,

meaning that we “owe no deference to the trial court’s ruling and apply the ‘plain

legal error’ standard of review.” (Citation, punctuation and footnote omitted.)

Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 125 (730

SE2d 514) (2012).

2
Appellants do not take issue with the trial court’s finding that Vasile
concealed himself to avoid service. Nor do they argue on appeal that Addo
perpetrated a fraud upon the trial court by alleging that he was unaware of Vasile’s
whereabouts when he moved for service by publication.

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OCGA § 9-11-4 (f) (1) (A) 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.
...

Id. See Ragan v. Mallow, 319 Ga. App. 443, 446–47 (2) (744 SE2d 337) (2012).

Because we do not find the service by publication in this case legal, we need not

address appellants’ contention that one attempt at service does not meet the

requirement of “due diligence.”

Code section 9-11-4 (f) (1) (C) provides that, once publication is made

following a court order, if

the residence or abiding place of the absent or nonresident party is
known, the party obtaining the order shall advise the clerk thereof; and
it shall be the duty of the clerk, within 15 days after filing of the order
for service by publication, to enclose, direct, stamp, and mail a copy of
the notice, together with a copy of the order for service by publication

8
 and complaint, if any, to the party named in the order at his or her last
known address, if any, and make an entry of this action on the complaint
or other pleadings filed in the case.

OCGA § 9-11-4 (f) (1) (C). Because service by publication raises due process

concerns and is a “notoriously unreliable means of actually informing interested

parties about pending suits,” Baxley v. Baldwin, 279 Ga. App. 480, 482 (2) (631 SE2d

506) (2006), it must be accomplished as provided by the statute and “substantial

compliance” is insufficient. Hutcheson, supra, 317 Ga. App. at 125-128 (1) (service

by publication did not comply with statute where clerk of court conceded failure to

mail documents to defendant). See also Fudge v. Balkissoon, 199 Ga. App. 755 (406

SE2d 116) (1991) (service by publication did not comply with statute where only one

of four publications was made within 60-day period for publication; substantial

compliance is not sufficient).

Here, Addo’s attorney directed the clerk of court to mail a stamped-filed copy

of the notice to Vasile’s alleged address as required by OCGA § 9-11-4 (f) (1) (C).

Vasile averred that he was never served with the lawsuit and did not know of its

existence until six months after it was filed. The statute requires the clerk of court to

mail a copy of the order for service by publication, notice of publication, and the

9
complaint to Vasile’s last known address and to certify such action on the complaint

filed in the case. The record contains no evidence of the clerk’s certification. Where

service by publication is procured, it is the plaintiff’s burden to establish “that the

defendant received actual notice or expressly or impliedly waived such notice.”

McDade v. McDade, 263 Ga. 456, 457 (2) (435 SE2d 24) (1993). Addo offers no

proof that the clerk mailed the documents and instead argues that clerks and deputy

clerks of court are public officers who are presumed to discharge their duties

properly. In the cases upon which Addo relies in support of this argument, however,

the documents at issue were certified by and on file with the respective clerks of court

and neither address the requirements for service by publication. See Taylor v. Young,

253 Ga. App. 585, 586 (1) (b) (560 SE2d 40) (2002) (addressing validity of order

appointing probate court clerk as hearing officer); Oller v. State, 187 Ga. App. 818,

820 (2) (371 SE2d 455) (1988) (holding sufficient proof of prior conviction based

upon authenticated records “certified as a true and correct copy of the original

‘indictment, plea and sentence’”). Additionally, in both cases, it was noted that the

authenticated records of the office of the clerk of court are presumed to speak the

truth. Taylor, supra; Oller, supra. In this case, there is a complete absence in the

record of any entry by the clerk of court showing that the documents were mailed.

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 Addo contends that an exhibit, purporting to be a text message from Vasile to

Addo with a photo of an envelope allegedly containing a copy of the lawsuit, attached

to Addo’s response to appellants’ first motion to set aside proves that appellants

received a copy of the lawsuit via mail. In that same text, Vagile allegedly asked

Addo, “Is there anything I can do so I don’t have to go to court?” Simply attaching

an exhibit to a motion, however, does not prove its genuineness or authenticity. See

OCGA § 24-9-901. See also Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47)

(2009) (email-transmission purporting to show victim lying about defendant’s

molestation of her ruled inadmissible because “[a]s a general rule, a writing will not

be admitted into evidence unless the offering party tenders proof of the authenticity

or genuineness of the writing. There is no presumption of authenticity, and the burden

of proof rests upon the proffering party to establish a prima facie case of

genuineness.”). Additionally, we point out that the exhibit is blurred and virtually

illegible and, therefore, not entitled to evidentiary consideration. See Black v. Floyd,

280 Ga. 525, 526 (1) (630 SE2d 382) (2006) (completely illegible documents are not

entitled to evidentiary consideration). But, even if the exhibit purports to be what

Addo claims, it does not prove that the clerk of court complied with the statute.

Moreover, as appellants point out, there is no evidence of the contents of that

11
envelope. Because strict compliance with the statute is required, the trial court erred

in denying appellants’ motion to set aside the default judgment against Vasile on this

ground.

3. In their second enumeration of error, appellants contend that the trial court

should have set aside the default judgment against Roga because service was

improper under OCGA § 14-11-209 (f). In particular, appellants argue that one

attempt at service cannot be deemed reasonable diligence and the certification

submitted to the Secretary of State fails to set forth when Addo mailed notice to Roga

in accordance with the statute. We disagree.

At the time Addo was attempting service, OCGA § 14-11-209 (f) provided as

follows:

Whenever a limited liability company shall fail to appoint or maintain
a registered agent in this state or whenever its registered agent cannot
with reasonable diligence be found at the registered office, then the
Secretary of State shall be an agent of such limited liability company
upon whom any process, notice, or demand may be served. Service on
the Secretary of State of any such process, notice, or demand shall be
made by delivering to and leaving with him or her or with any other
person or persons designated by the Secretary of State to receive such
service two copies of such process, notice, or demand. The plaintiff or
his or her attorney shall certify in writing to the Secretary of State that

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 the limited liability company failed either to maintain a registered office
or appoint a registered agent in this state and that he or she has
forwarded by registered or certified mail or statutory overnight delivery
such process, notice, or demand to the most recent registered office
listed on the records of the Secretary of State and that service cannot be
effected at such office.

OCGA § 14-11-209 (f).3 There are no cases interpreting the “reasonable diligence”

required by OCGA § 14-11-209 (f). Black’s Law Dictionary defines “reasonable

diligence” as: “1. A fair degree of diligence expected from someone of ordinary

prudence under circumstances like those at issue. 2. See due diligence.” Black’s Law

Dictionary (7th ed. 2014), p. 468. It defines “due diligence” as “diligence reasonably

expected from, and ordinarily exercised by, a person who seeks to satisfy a legal

requirement or to discharge an obligation. Also termed reasonable diligence; common

diligence.” Id. Accordingly, we find “reasonable diligence” and “due diligence”

synonymous for purposes of analyzing whether Addo complied with OCGA § 14-11-

209 (f). Cf. B&B Quick Lube v. G&K Svcs. Co., 283 Ga. App. 299, 300 (641 SE2d

198) (2007), overruled on other grounds, Giles v. State Farm Mut. Ins. Co., 330 Ga.

3
The subsection was amended effective July 1, 2016, substituting “two copies”
with “a copy.” Ga. L. 2016, p. 225, § 4-2.

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App. 314 (765 SE2d 413) (2014) (stating that plaintiff must “use reasonable or due

diligence in serving the registered agent of the corporation before resorting to service

by registered mail, certified mail, or overnight delivery.”).

In cases where the plaintiff files a complaint before expiration of the statute of

limitation but fails to perfect service before the limitation runs, the plaintiff has the

burden of showing that due diligence was exercised. In those cases, “[t]he trial court

has discretion to determine whether a plaintiff has exercised sufficient diligence to

effect service after the running of the statute of limitation, and we will not disturb the

court’s decision absent an abuse of that discretion.” Baxley, supra, 279 Ga. App. 480

at 482-483 (3).

In this case, the evidence showed that Vasile, Roga’s registered agent, was

either in a Mexican jail or in Romania with an unknown date of release or return.

Accordingly, it was impossible for Addo to perfect service on Roga at the address of

the registered agent. See OCGA § 14-11-209 (a) (2). Given Vasile’s absence, we find

that the trial court did not abuse its discretion in finding that Addo exercised

reasonable diligence under the particular facts and circumstances of this case. See

Hooks, supra, 330 Ga. App. at 587 (1) (finding that under analogous statute, OCGA

§ 14-9-104 (a), plaintiff’s efforts to serve defendant “at an office that was not

14
functioning as a registered office were reasonable and that further efforts were not

required before substituting service upon the Secretary of State”).

We also reject appellants’ contention that the certification submitted by Addo’s

counsel to the Secretary of State was defective. Addo’s attorney certified that he had

“forwarded by registered or certified mail or statutory overnight delivery [two copies

of] such process, notice or demand to the most recent registered office listed on the

records of the Secretary of State.” This language tracks the statute. Additionally, we

can infer from counsel’s use of the past-tense “forwarded” that he mailed two copies

of the summons and complaint to Roga’s address before mailing them to the Secretary

of State. Compare Anthony Hill Grading v. SBS Investments, 297 Ga. App. 728, 728

(678 SE2d 174) (2009) (affirming grant of motion to set aside because simultaneous

mailing of summons and complaint to company and Secretary of State does not

comply with the express requirements of OCGA § 14-11-209 (f)); Governor’s Towne

Club v. J. W. Thomason, Inc., 308 Ga. App. 74, 75 (706 SE2d 602) (2011) (reversing

award of default judgment because affidavit stating that summons was “properly

sent” to the defendant was defective and did not fulfill the requirements of OCGA §

14-11-209 (f)). Finally, the statute does not require that the certification be filed with

15
the trial court. It follows that the trial court correctly denied appellants’ motion to set

aside the default judgment as to Roga.

In sum, we affirm the trial court’s order denying appellants’ motion to set aside

the default judgment as to Roga, reverse the trial court’s order denying appellants’

motion to set aside the default judgment as to Vasile, and vacate that portion of the

trial court’s order entering default judgment jointly and severally against Vasile and

Roga.

Judgment affirmed in part, reversed in part, and vacated in part. Dillard, P.

J. and Ray, J., concur.

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