Passmore v. Thomas

Andrews, Presiding Judge,

dissenting.

Because I do not believe that the service in the original suit complied with OCGA § 9-11-4,1 respectfully dissent.

As reflected in the majority, the original action was served in California pursuant to the Crisp County Superior Court’s order of August 6, 1998, in which “MLQ Attorney Services or its designated agent. . . [was] specially appointed” to make and file proof of service on Thomas. Service was made in California on October 5, 1998, according to the affidavit of service, by “Mark E. Harmon, an agent of MLQ Attorney Services.” The only identifying information in the record regarding Harmon is contained on the billing statement sent by him to plaintiffs’ attorneys. Next to the printed logo for “Erdman Attorney Service, Inc.,” Harmon is identified in typewriting as a “REGISTERED INDEPENDENT CONTRACTOR, ATTORNEYS MESSENGER SERVICE, Registration #1, Alameda County. . . .”

Pursuant to OCGA § 9-11-4 (c), process

shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by such sher*614iff’s deputy, or by the marshal or sheriff of the court, or by such official’s deputy, or by any citizen of the United States specially appointed by the court for that purpose, or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought.
Decided June 3, 2002. Copeland & Haugabrook, Tyrone N Haugabrook, Karla L. Walker, for appellants. John T. Croley, Jr., for appellee.

(Emphasis supplied.)

The trial court, correctly, I believe, concluded that the order for appointment of process server “was not effective to appoint a special process server because the appointee therein [(i.e., MLQ)] did not constitute a legal entity capable of being appointed as special process server” under the above-italicized portion of OCGA § 9-11-4 (c), the only one applicable to this situation.

Even assuming that, based on the record, there is some way to tie Harmon to MLQ Attorney Services, there is no indication that MLQ is a natural person “doing business as,” or a corporation, partnership, or other legally recognized artificial entity. See Brand v. Southern Employment Sue., 247 Ga. App. 638, 639 (545 SE2d 67) (2001); Russell v. O’Donnell, 132 Ga. App. 294, 296 (2) (208 SE2d 107) (1974).

In any event, OCGA § 9-11-4 (c) mandates that a “citizen of the United States” be specially appointed, which requires the naming of a natural person, not an artificial entity. OCGA §§ 1-2-1; 1-2-2. Here, Harmon was not named nor was any such natural person named, and I believe the trial court correctly dismissed the renewal action. Merck v. Saint Joseph’s Hosp. &c., 251 Ga. App. 631, 632 (555 SE2d 11) (2001); Hawkins v. Wilbanks, 248 Ga. App. 264 (546 SE2d 33) (2001).

“On the issue of improper service, the court is the trier of fact, and in the absence of legal error, we are without jurisdiction to interfere with a verdict supported by some evidence.” (Footnote omitted.) Wilkinson v. Udinsky, 242 Ga. App. 464 (1) (530 SE2d 215) (2000).

I am authorized to state that Chief Judge Blackburn joins in this dissent.