THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
June 15, 2022
In the Court of Appeals of Georgia
A22A0141. YOUD v. BESKIN et al.
REESE, Judge.
The Superior Court of Fulton County entered a default judgment against Steven
Youd (“Appellant”) in favor of James and Elizabeth Beskin (“Appellees”), and
Appellant filed a motion to open default. The trial court subsequently entered a final
judgment against Appellant, and denied his motion to open default. This appeal
followed. For the reasons set forth infra, we affirm in part and vacate in part, and
remand this case with direction.
The record shows that Steven and Anna Youd (the “Youds”) and Appellees
shared a common boundary between their properties. In January 2016, the retaining
wall on the Youds’ property collapsed, sending debris onto Appellees’ property.
Although there were discussions concerning repairing the wall, when the Youds
failed to take action, Appellees filed suit against the Youds on August 15, 2019.
Anna Youd was personally served on August 20, 2019, and she subsequently
filed an answer and affirmative defenses. Upon learning that the Youds had divorced,
Appellees attempted to serve Appellant at his separate address through private
process servers in November 2019 and January 2020. However, the process servers
were unable to serve Appellant, and an affidavit of due diligence from one server
stated that Appellant appeared to be “evading service.” Appellees also utilized the
Fulton County Sheriff to serve Appellant, but the Sheriff’s department stated that they
were also unable to perfect service on Appellant despite several attempts.
In March 2020, Appellees filed an affidavit of service stating that Appellant
was successfully served on March 16 when Appellant reported for trial at the Atlanta
Municipal Court. The process server’s affidavit stated that
[t]he court was closed but the[ court] did not have any information about
the[ ] closure on the website so [the process server] waited to see if
[Appellant] would show up. At 8:05 [a.m.], [the process server] saw a
man who looked like the photo the [Appellees] had provided and
[Appellant] also turned around when [the process server] said his name.
When he saw that [the process server] had documents to give him he
refused to take them from [the process server’s] hand. [The process
2
server] explained in a loud voice what the papers were for and left them
at [Appellant’s] feet.
The affidavit also described Appellant as a Caucasian male in his thirties weighing
170 pounds and standing five-foot-seven inches tall with brown hair.
The trial court “inadvertently” overlooked this filing by Appellees and entered
an order directing that service be perfected upon Appellant within 30 days of the date
of the order. Appellees filed a notice of service of process stating that service had
been perfected on Appellant, and attached the previous affidavit of service attesting
that Appellant had been served on March 16, 2020. Appellees then moved for default
judgment against Appellant, which the trial court granted.
The trial court subsequently held a hearing on damages. Although Appellees
and Anna Youd attended, Appellant did not participate. Following the hearing on
damages and more than three months after the court’s default judgment, Appellant
filed a motion to open default. The trial court entered a final judgment against
Appellant the next day, awarding Appellees damages totaling $667,593, as well as
injunctive relief, and shortly thereafter, entered an order denying Appellant’s motion
to open default. The Appellant now appeals.
3
Where a defendant claims there was a failure of service, the trial
court has the authority to decide as a factual matter whether service has
occurred. This finding will not be disturbed as long as there is some
evidence to support it. Further, when a defendant in a lawsuit challenges
the sufficiency of service, he bears the burden of showing improper
service. The process server’s return of service 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.1
When considering a trial court’s ruling on a motion to open a default,
[i]t is not arguable as a proposition of law that the decision whether to
open a default judgment falls squarely within the discretionary powers
of the trial court granting or denying the same. The exercise of this
1
Newsome v. Johnson, 305 Ga. App. 579, 581 (1) (699 SE2d 874) (2010)
(citations and punctuation omitted). Although Appellant argues that the proper
standard of review on this issue is de novo because the question of whether a
judgment is void or voidable is a question of law, that is not the issue presented here.
This claim of error centers around whether Appellant was properly served, and such
determinations are factual matters decided by the trial court and will not be disturbed
as long as there is some evidence to support the trial court’s ruling. Id. Moreover, the
case cited by Appellant is inapplicable to the present matter, as Williams v. Willis
involved the question of whether a South Carolina judgment made a Georgia
judgment duplicative and therefore void. See 340 Ga. App. 740, 742 (798 SE2d 323)
(2017). Further, Williams was physical precedent only and not binding on this Court.
See Court of Appeals Rule 33.2 (a) (2).
4
discretionary power should not excite interference by a reviewing court
unless the trial court manifestly abuses the discretion vested within it.2
“On appellate review of a bench trial, we must affirm the court’s award of damages
if there is any evidence showing with reasonable certainty the amount of damages.
So long as the award is within the range of the evidence adduced, we will affirm the
trial court’s judgment.”3 With these guiding principles in mind, we now turn to
Appellant’s claims of error.
1. Appellant argues that the trial court erred in entering a final judgment as it
did not have personal jurisdiction over him due to Appellees’ failure to properly serve
Appellant.
OCGA § 9-11-4 (e) states that “[e]xcept for cases in which the defendant has
waived service, the summons and complaint shall be served together. . . . Service
shall be made by delivering a copy of the summons attached to a copy of the
2
Fulton County Hosp. Auth. v. Hyman, 189 Ga. App. 613, 614 (1) (376 SE2d
689) (1988) (citation and punctuation omitted); see also COMCAST Corp. v. Warren,
286 Ga. App. 835, 838 (1) (650 SE2d 307) (2007) (reviewing the denial of a motion
to open default for an abuse of discretion).
3
Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 15 (3) (b) (712 SE2d 531)
(2011) (punctuation and footnote omitted).
5
complaint . . . to the defendant personally[.]” When considering claims of a failure of
service, this Court has held,
the question of whether evidence is sufficient to overcome facts
reflected in a return of service is a matter addressed to the discretion of
the trial court. Indeed, a return of service is prima facie evidence of
personal service, and it may only be set aside when the defendant
presents evidence that is the strongest of which the nature of the case
will admit. Furthermore, factual disputes regarding service of process
are to be resolved by the trial court, and the court’s findings will be
upheld if there is any evidence to support them.4
Here, the process server hired by Appellees made multiple attempts to serve
Appellant at his address and noted that it appeared Appellant was “evading service[.]”
After these unsuccessful attempts, the record shows that the process server went to
the Atlanta Municipal Court on a day Appellant was scheduled to appear, located a
person fitting Appellant’s description who responded to the Appellant’s name, and
when the individual refused to accept the documents, the process server left them at
his feet. Although Appellant asserted in his affidavit that he was not at the court on
the day in question, and that he was including as an exhibit correspondence from the
4
Cosby v. Lewis, 308 Ga. App. 668, 673 (2) (708 SE2d 585) (2011)
(punctuation and footnotes omitted).
6
court informing him that his hearing had been canceled, he did not attach any
document supporting this assertion. Therefore, as the trial court is given deference to
resolve factual disputes regarding issues surrounding the service of process, and there
was some evidence supporting the fact Appellant was properly served, the trial court
did not abuse its discretion.
Additionally, although Appellant cites Space Coast Credit Union v. Groce,5
that case is distinguishable from the present matter. In Space Coast Credit Union, this
Court upheld the trial court’s ruling that service of process was not sufficient when
a server went to the defendant’s nursing home and left the documents on a table next
to the defendant’s bed while he was “in and out of consciousness[.]”6 In contrast, here
the process server asserted that he saw a person fitting Appellant’s description, that
he informed him of “what the papers were for[,]” and that Appellant refused to accept
them. Thus, Groce is distinguishable as here Appellant was alert and informed of the
papers’ purpose. Therefore, we affirm the trial court’s ruling.7
5
337 Ga. App. 24 (785 SE2d 663) (2016).
6
Id. at 25, 28 (2).
7
See Carroll v. Celanese Corp. of America, 205 Ga. 493, 493 (2) (54 SE2d
221) (1949) (holding that personal service would be valid if a deputy sheriff informed
the defendant he had documents for her and after defendant refused to accept them
7
2. Appellant argues that the trial court erred in denying his motion to open
default pursuant to OCGA § 9-11-55. Specifically, Appellant argues that the court
should have opened the default because his failure to file an answer was due to a
providential cause as he was never properly served.8
Under OCGA § 9-11-55(b), a prejudgment default may be opened
on one of three grounds if four conditions are met. The three grounds
are: (1) providential cause, (2) excusable neglect, and (3) proper case;
the four conditions are: (1) showing made under oath, (2) offer to plead
instanter, (3) announcement of ready to proceed with trial, and (4)
setting up a meritorious defense. The question of whether to open a
default on one of the three grounds noted above rests within the
discretion of the trial judge.9
the deputy sheriff dropped the papers at the defendant’s feet); Cosby, 308 Ga. App.
at 673-674 (2); Newsome, 305 Ga. App. at 583 (1) (“[I]t is generally held that if the
process server and the defendant are within speaking distance of each other, and such
action is taken as to convince a reasonable person that personal service is being
attempted, service cannot be avoided by physically refusing to accept the
summons.”).
8
Although Appellant references both providential cause and excusable neglect
generally as grounds to open the default judgment, the argument section of his brief
only asserts that he was “providentially hindered” from responding.
9
Collier v. Cawthon, 256 Ga. App. 825, 826 (1) (570 SE2d 53) (2002)
(citations and punctuation omitted),
8
Here, Appellant’s sole basis for opening the court’s default was that he was
never served. However, as discussed supra, the evidence supports the trial court’s
conclusion that Appellant was properly served in March 2020. As this rationale for
Appellant’s failure to respond to Appellees’ complaint has been found unpersuasive,
and Appellant does not cite any other facts demonstrating that he was prevented from
responding by some providential cause “over which [Appellant] or his attorney had
no control,”10 we conclude that the trial did not manifestly abuse its discretion in
denying Appellant’s motion to open default.11
10
Bowen v. Savoy, 308 Ga. 204, 207 (839 SE2d 546) (2020).
11
Although the trial court did not expressly address the issue of whether
Appellant made a showing of a meritorious defense, we note that Appellant only
asserted that he had various meritorious defenses, including but not limited to, cross-
claims against Anna Youd and affirmative defenses of unclean hands, laches,
contributory negligence, and failure to mitigate damages, which he would plead with
more particularity in his answer, defenses, and cross-claim upon the opening of the
default. However, Appellant never elaborated on these alleged defenses. To establish
a meritorious defense, “a defendant must demonstrate that the outcome of the case
may be different if the motion [was] granted[,]” and “in making that showing, a
defendant . . . must set forth facts that establish the essential elements of a meritorious
defense.” Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 849 (1) (652 SE2d
877) (2007) (punctuation and footnote omitted). However, “absent the showing of a
meritorious defense, a trial court has no discretion to open a default.” Id. Thus, even
assuming arguendo that Appellant established a providential cause that prevented him
from filing a timely response, his failure to cite any facts supporting a meritorious
defense would have barred the trial court from opening the default. See Water Visions
Intl. v. Tippett Clepper Assoc., 293 Ga. App. 285, 287 (2) (666 SE2d 628) (2008)
9
3. Appellant argues that the trial court erred in issuing a final order awarding
damages to Appellees that were vague, ambiguous, speculative and constituted a
double recovery.
As an initial matter, we address Appellees’ argument that we should not
consider this claim of error as Appellant did not raise these issues before the trial
court, and the court did not have an opportunity to consider them. “As a rule, an
appellate court will not consider arguments raised for the first time on appeal. But a
claim that a verdict was an impermissible double recovery as a matter of law is an
exception to this rule[.]”12 Thus, we will examine Appellant’s assertion that the trial
court’s final judgment contained impermissible double recoveries, but we consider
all other assertions in this claim of error waived as he is raising them for the first time
on appeal.
The Supreme Court of Georgia, when discussing a double recovery of
damages, has held that
(affirming trial court’s denial of a motion to open default where the motion was
devoid of facts and details establishing a meritorious defense).
12
City of Roswell v. Bolton, 271 Ga. App. 1, 8 (5) (608 SE2d 659) (2004)
(citations omitted).
10
Georgia, as part of its common law and public policy, has always
prohibited a plaintiff from a double recovery of damages; the plaintiff
is entitled to only one recovery and satisfaction of damages, because
such recovery and satisfaction is deemed to make the plaintiff whole.
Accordingly, a plaintiff is not entitled to an award of both the
diminution in market value and costs to restore for the same injury
occasioned by the same trespass and nuisance.13
However, the Supreme Court later clarified that it “did not rule [in Lusk14] that
Georgia law precludes a diminution in value award in addition to restoration and
repair costs where the repair does not fully restore the property to its pre-damage
value.”15 More specifically,
[a]lthough unusual, it may sometimes be appropriate, in order to make
the injured party whole, to award a combination of both measures of
damages. In such cases, notwithstanding remedial measures undertaken
by the injured party, there remains a diminution in value of the property,
and an award of only the costs of remedying the defects will not fully
compensate the injured party.16
13
Georgia Northeastern R. Co. v. Lusk, 277 Ga. 245, 246 (1) (587 SE2d 643)
(2003) (citation omitted).
14
277 Ga. 245.
15
Royal Capital Dev., 291 Ga. 262, 266 (2) (728 SE2d 234) (2012).
16
Id. at 265 (1) (citations and punctuation omitted).
11
Here, three of the trial court’s awards are at issue as possible double recoveries.
In its final judgment against Appellant, the trial court granted Appellees’ requests for
$270,000 as the loss of the property’s value due to the wall’s collapse, and $200,000
to allow Appellees to build a replacement wall on their property to prevent further
damage to their land. The trial court also reentered its previous injunction requiring
Appellant to remove dirt and stone from Appellees’ property as a result of the
collapse and to repair and restore the retaining wall to a condition that would prevent
another collapse.17
The intent of such awards is to “place an injured party, as nearly as possible,
in the same position it would have been if the injury had never occurred.”18 However,
this goal would be accomplished by either the trial court’s award of the loss of value
in Appellees’ land or by the injunction requiring Appellant to remove the debris from
their property and repair and restore the collapsed wall. Both of these awards aim to
accomplish the goal of making Appellees whole after the collapse of Appellant’s
wall. Further, there is no evidence presented that complete repair of the retaining wall
17
Although the trial court also awarded Appellees other damages, we do not
review this portion of the judgment as these were not challenged by Appellant.
18
Royal Capital Dev., 291 Ga. at 264 (1).
12
by Appellant would not “fully restore the property to its pre-damage value[,]”19
thereby creating an exception to the general prohibition against awarding both the
diminution in market value and the cost of restoring the property based on the same
injury.20 Thus, we conclude that the award of the loss of value in the property and the
injunction requiring Appellant to rebuild the wall constituted an impermissible double
recovery.
Additionally, although the award of the cost for Appellees to build a retaining
wall on their property and the injunction requiring Appellant to rebuild the retaining
wall on his property is slightly more nuanced, we conclude that these awards also
constitute a double recovery.21 As noted above, nothing in the record suggests that the
19
Id. at 266 (2).
20
See id.; Lusk, 277 Ga. at 246-247 (1). Although Appellees cite DeKalb
County v. Heath, 331 Ga. App. 179 (770 SE2d 269) (2015), for the proposition that
one may receive an award of diminution in value and the cost of preventing further
damage to one’s property, that case is distinguishable. In Heath, the trial court issued
two awards in two separate actions, namely an award of the diminished value of the
landowner’s property due to flooding and erosion before the retaining wall failed, and
subsequently the costs of repairing the wall after it failed. Id. at 182 (1). As this Court
noted in Heath, “the two actions did not share identical causes of action, and the
present action involved a fresh nuisance[.]” Id. Here, in contrast, both remedies
stemmed from the collapse of the retaining wall.
21
See Marvin Nix Dev. Co. v. United Community Bank, 302 Ga. App. 566, 568
(692 SE2d 23) (2010) (holding that a party “is not permitted a double recovery of the
13
repair and replacement of Appellant’s wall would fail to restore Appellees to their
previous position. Rather, building the retaining wall on Appellees’ land appears
intended to prevent further damage to Appellees’ property in the event Appellant fails
to comply with the injunction.22 Put another way, the grant of both awards would not
return Appellees to “the same position [they] would have been if the injury had never
occurred[,]”23 but would provide Appellees with a rebuilt retaining wall on
Appellant’s property, in addition to a new retaining wall on their own property.24
For the above reasons, we conclude that the trial court erred in awarding
Appellees collectively the loss of value in their property, the cost of building a
same damages”) (citation and punctuation omitted).
22
Appellees stated that the purpose of the wall was to prevent “further
encroachment by Appellant’s earth, concrete, granite blocks, and other debris onto
their property[,]” and noted that as of the time of the appeal, 68 months had passed
since Appellant’s wall had collapsed. Appellees also stated in their memorandum in
support of damages against Appellant that “the [trial court] reasonably can conclude
that the [Youds] will not replace their retaining walls before [Appellees] suffer further
property damage and personal injury.” Moreover, James Beskin stated at the damages
hearing that “[h]e would anticipate building [the retaining wall on his property], if
[the Youds] don’t fix theirs[.]”
23
Royal Capital Dev., 291 Ga. at 264 (1).
24
See Lusk, 277 Ga. at 246 (1) (“[T]he plaintiff is entitled to only one recovery
and satisfaction of damages, because such recovery and satisfaction is deemed to
make the plaintiff whole.”).
14
retaining wall on their property, and injunctive relief requiring Appellant to repair and
restore the wall on his property. Thus, we vacate the trial court’s award of these three
remedies only, and remand the case for further consideration consistent with this
opinion. The remaining damages awarded by the trial court remain unchanged.
Judgment affirmed in part and vacated in part, and case remanded with
direction. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps concur.
15