RUSSELL v. MUSCOGEE COUNTY SCHOOL DISTRICT Et Al.

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
A17A0371. RUSSELL v. MUSCOGEE COUNTY SCHOOL
DISTRICT et al.

SELF, Judge.

This case arose out of a collision between a car in which appellant, Roderick

Russell, was a passenger and a school bus owned by the Muscogee County School

District (“the MCSD”) and driven by its employee, Richard Shores. Russell sued

Shores alleging he was negligent in causing the collision and also sued the MCSD on

the theory of vicarious liability and for negligent entrustment of a vehicle and

negligent hiring. Following the entry of a default judgment against them, the MCSD

and Shores (collectively “appellees”) entered a special appearance and moved to

dismiss the complaint, or in the alternative, open default based upon Russell’s failure

to effect proper service. The trial court granted the motion to dismiss and Russell
appeals. For the reasons explained below, we affirm the portion of the trial court’s

order dismissing the complaint against Shores, but reverse the portion dismissing the

complaint against the MCSD.

On November 3, 2014, Russell filed this lawsuit against the MCSD and Shores,

seeking damages for personal injuries arising out of an automobile accident that

occurred on November 2, 2012.1 On March 10, 2015, a court-appointed process

server filed an affidavit of service attesting that on November 5, 2014, he served the

MCSD by leaving a copy of the summons and complaint with “the assistant for the

HR Department, 2960 Macon Road, Columbus, Georgia.” On October 16, 2015,

Russell filed a motion for entry of default on the ground that appellees failed to file

an answer.

On January 28, 2016, appellees filed an answer by special appearance and

moved to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (4) and (5) or, in the

alternative, open default based upon Russell’s failure to effect proper service. In

support of the motion, Shores submitted his own affidavit stating that as of January

28, 2016, he had not been served with the summons or complaint. Russell did not

1
As November 2, 2014 was a Sunday, Russell filed suit on Monday, November
3, 2014. See OCGA § 1-3-1 (d) (3).

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respond to the motion.2 In their answer, appellees raised the defenses of insufficiency

of process, service of process, and the running of the statue of limitation. On August

2, 2016, the trial court granted the motion to dismiss finding as follows:

Defendants having moved for dismissal of this action as to claims
against them set forth by the Plaintiff, and it appearing that Plaintiff has
neither responded nor objected to such dismissal, and said Motion
having come before the Court with no response, and the Court having
considered the Motion, and the Argument and Citation of Authority,
hereby GRANTS [Defendants’] Motion. Therefore, the above-styled
action is hereby DISMISSED.

On August 30, 2016, Russell filed a “motion and brief to reconsider and vacate order

granting defendants’ motion to dismiss.” Russell attached an amended affidavit of

service to the motion, in which the court-appointed process server attested as follows:

On [November 5, 2014,] I entered the [MCSD] building and was
required to sign in at the front desk on the first level. I first asked the
desk attendant where the proper place for the documents to be served
would be and was told that I would need to go to the HR department. I
was given a “physical pass” to enter the building and instructed where
to go. I went to the 2nd floor and reported to the receptionist’s desk. I

2
Russell admits as much in his appellate brief and explains that his original
attorney and an “associated” attorney brought on to assist with the entry of default
were confused as to who bore responsibility for responding to the motion to dismiss.

3
 explained that I had legal documents to serve to the [MCSD] and was
advised that. . . she would need to call someone to find the proper place
for them to go, while I waited. I watched as the receptionist called
someone and could hear over the phone the person state that I could just
leave it with them at the front desk. I was then told that I could leave the
documents with her. I was given a name of the Deputy Superintendent,
Becky Braaten, that the document would end up going to. I further
believed that was who the receptionist was speaking to. Because I
entered into a secured building with multiple levels of security and I was
not able to just walk in and meet with the Deputy Superintendent and I
was forced to follow the instructions of the office protocol, I left the
documentation with the receptionist. I fully believe that this was the
process that the HR department followed and replicated. Everyone
including the downstairs desk attendant knew where and whom the
documentation went to. The receptionist and the person that she was
speaking to was made aware of the documentation and what it was in
reference to and [its] meaning.

The process server further stated that on August 15, 2016, he returned to the MCSD

to serve a copy of the same package of documents in this case and was told by the

receptionist in the “HR department” that, following a phone a call, she had been

instructed to accept the paperwork and would pass it on to “Mrs. Tracey Fox, Director

of Risk Management for the [MCSD].”

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 On August 31, 2016, Russell filed a supplemental brief in support of motion

to reconsider and vacate order granting defendants’ motion to dismiss. In that brief,

Russell pointed out the MCSD admitted proper service in a companion case, which

was served by the same court-appointed process server with a near-identical return

of service: “On [September 22, 2014]. . . I personally served [MCSD] a copy of the

summons and complaint. . . to defendant by leaving a copy with assistant for Hr.

Dept. 2960 Macon Road, Columbus, Georgia.”3 On September 1, 2016, before the

trial court could rule on the motion for reconsideration, Russell filed a notice of

appeal from the trial court’s order granting appellees’ motion to dismiss.

1. In two related enumerations, Russell contends that the trial court erred in

dismissing the complaint under OCGA § 9-11-12 (b) (4) and (5) because there was

no deficiency in the process issued in this case and no insufficiency of service of that

process. In their brief, appellees concede the first contention, noting that “[i]t is the

service of the [c]omplaint and summons that was invalid.” Accordingly, we need only

address the issue of the sufficiency of service in this case.

3
Appellees noted in their brief in support of their motion to dismiss that the
companion case, brought by the driver of the vehicle in which Russell was a
passenger, was dismissed without prejudice in August 2015, due to the plaintiff’s
failure to appear.

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 “When a defendant in a lawsuit challenges the sufficiency of service, that

defendant bears the burden of showing improper service. The return can only be set

aside upon evidence which is not only clear and convincing, but the strongest of

which the nature of the case will admit.” (Citations and punctuation omitted.)

Franchell v. Clark, 241 Ga. App. 128, 130 (3) (524 SE2d 512) (1999). “The. . . return

of service constitutes prima facie proof of the facts recited therein, but it is not

conclusive and may be traversed by proof that such facts are untrue. . . . Whether

evidence is sufficient to overcome facts reflected in a return of service is a matter

addressed to the discretion of the trial court.” (Citation and punctuation omitted.)

Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). This Court will not

disturb those findings when supported by any evidence. Franchell, supra.

(a) At the outset, we note that there is absolutely no evidence in the record that

Shores was served. On the contrary, Shores affirmed that as of January 28, 2016, –

14 months after the complaint was filed in this case – he still had not been served

with the summons or complaint. Accordingly, the trial court did not err in dismissing

the complaint against Shores for insufficient service of process.

(b) As for whether service of process on the MCSD was sufficient, OCGA §

9-11-4 (e) provides:

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 [e]xcept for cases in which the defendant has waived service, the
summons and complaint shall be served together. The plaintiff shall
furnish the clerk of the court with such copies as are necessary. Service
shall be made by delivering a copy of the summons attached to a copy
of the complaint as follows: . . . (5) If against a county, municipality,
city, or town, to the chairman of the board of commissioners, president
of the council of trustees, mayor or city manager of the city, or to an
agent authorized by appointment to receive service of process. If against
any other public body or organization subject to an action, to the chief
executive officer or clerk thereof[.]

(Emphasis supplied.) OCGA § 9-11-4 (e) (5). Here, the MCSD argued in their motion

to dismiss that service upon “the assistant for the HR department” was insufficient

under the statute. Relying on Foskey v. Vidalia City School, 258 Ga. App. 298, 302

(b) (574 SE2d 367) (2002), and the court-appointed process server’s first affidavit of

service, the MCSD argued that “the assistant for the HR Department” is not the chief

executive officer or clerk of the MCSD and, therefore, was not authorized to accept

service on its behalf. See id. (noting that plaintiff served the mayor of the city, who

was neither the chief executive officer or clerk of Vidalia City School District, as

provided by OCGA § 9-11-4 (e) (5)).4 Merely stating this fact, however, does not

4
In their appellate brief, the MCSD also relies on Aaron v. Gwinnett County
School District, No. 1:14-CV-00408-WSD, 2015 U.S. Dist. Lexis 80946 (N.D. Ga.

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make it true. The MCSD bore the burden of coming forward with evidence that the

assistant for the HR department was not a “clerk” within the meaning of the statute.

See Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (442 SE2d 795) (1994)

(defendant failed to meet its burden of showing that administrative assistant’s duties

“did not entail managerial or supervisory responsibilities” so as to render service of

process on her insufficient under OCGA § 9-11-4 (d) (1)).

In Murray, plaintiffs sued the defendant company for injuries sustained in a

collision. Plaintiff served the defendant company pursuant to OCGA § 9-11-4 (d) (1)

by leaving a copy of the summons and complaint with the administrative assistant.

The trial court granted the defendant company’s motion for summary judgment, or

in the alternative, motion to dismiss on the ground of insufficient service of process.

We reversed dismissal of the complaint, finding that the administrative assistant was

an authorized agent for the corporation. We concluded that the burden was on the

defendant to show that the administrative assistant’s responsibilities did not entail

June 23, 2015), where the plaintiff conceded that serving an insurance specialist
employed by the defendant school district was not sufficient to perfect service
because she was not the CEO or clerk as provided by OCGA § 9-11-4 (e) (5). Id. at
*8-9.

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managerial or supervisory responsibilities and that the defendant did not present

evidence to meet this burden. Id. at 649 (2).

We reiterate in this case that the burden is on the MCSD to present evidence

showing that the assistant was not a clerk just as the burden was on the defendant in

Murray to show that the administrative assistant was not an authorized agent for the

corporation. The MCSD failed to present the trial court with any evidence, whether

by affidavit or otherwise, to dispute the assistant’s position as a clerk authorized to

accept service under the statute. See, e.g., Nesmith v. Landmark Dodge, 302 Ga. App.

315, 316 (691 SE2d 240) (2010) (defendant failed to present trial court with

competent evidence showing administrative assistant was not authorized to accept

service on behalf of corporation). Compare Summerlin v. Georgia Pines Cmty. Svc.

Bd., 278 Ga. App. 831, 833-834 (1) (630 SE2d 115) (2006), affirmed, Georgia Pines

Cmty. Svc. Bd. v. Summerlin, 282 Ga. 339 (647 SE2d 566) (2007) (reversing grant of

summary judgment to defendant because personnel manager was clerk within the

meaning of OCGA § 9-11-4 (e) (5), and explaining that, “[w]hile the word ‘clerk’ is

not defined in the statute, ‘all words, except words of art, shall be given their ordinary

significance.’ Black’s Law Dictionary defines the word ‘clerk’ as a person employed

in public office ‘whose duties include keeping records or accounts.’ The American

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Heritage Dictionary defines the word ‘clerk’ as a person who works in an office

‘performing such tasks as keeping records, attending to correspondence, or filing.’”)

Given that the MCSD failed to carry its burden of showing that the assistant

was not a clerk within the meaning of the statute, we must conclude that the trial court

erred in granting the motion to dismiss as to the MCSD. See Nesmith, supra

(reversing dismissal of complaint); Murray, supra (same).

2. Russell also argues that we must vacate the trial court’s order and remand

the case because it is unlikely the trial court considered the entire record in making

its ruling; rather, the wording of the order suggests that the trial court granted

appellees’ motion to dismiss because Russell failed to respond. Given our holding in

Division 1, supra, we need not rule on this enumeration. However, we note that while

the failure of a non-moving party to respond does not automatically entitle the

moving party to judgment in its favor,5 the order here clearly states that the trial court

considered the “Motion. . . and the Argument and Citation of Authority” before

ruling. Based on this language, we will assume that the trial court exercised its

discretion and considered the entire record before ruling on the motion. See Pearson

5
See Neely v. Jones, 264 Ga. App. 795, 796 (592 SE2d 447) (2003), citing
Bishop v. Westminster Schools, 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990).

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v. Small World Day Care Center, 234 Ga. App. 843, 844-845 (2) (a) (508 SE2d 200)

(1998) (where trial court order stated that “the defendant’s [motion] is unopposed and

that no genuine issues of material fact remain[,]” this Court would not assume that

summary judgment was granted simply because the plaintiff did not respond to

defendant’s motion).

Judgment affirmed in part and reversed in part. Dillard, P. J. and Ray, J.,

concur.

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