Georgia Pines Community Service Board v. Summerlin

SEARS, Chief Justice.

Marilyn Summerlin filed a wrongful death action against the Georgia Pines Community Service Board in the Thomas County Superior Court under the Georgia Tort Claims Act.1 According to Ms. Summerlin, her eighteen-year-old son died unexpectedly at Georgia Pines, a residential facility for the care and treatment of individuals with mental illness, mental retardation, and addiction operated by the Board.2 The Board moved for summary judgment on the ground that service of process was defective because the summons and complaint were not handed directly to Robert Henry Jones, Jr., the Director of Georgia Pines. Instead, sheriffs deputies handed the summons and complaint to Connie Brogdon, the personnel manager at Georgia Pines, to give to Jones.

The Superior Court held that service was improper under the service provision of the Georgia Tort Claims Act, OCGA § 50-21-35. The Court of Appeals reversed,3 holding that service was proper under the service provision of the Civil Practice Act4 applicable to service of process on a “public body,” OCGA § 9-11-4 (e) (5).5 We granted certiorari to determine whether OCGA§ 9-ll-4(e) (5) applies to proceedings brought under the Georgia Tort Claims Act or whether OCGA § 50-21-35 instead provides the exclusive method for service of process on a State entity.6 We have concluded that OCGA § 9-11-4 (e) (5) applies to claims brought under the Georgia Tort Claims Act and, additionally, that the Court of Appeals correctly held that the Board waived any defense based on defective service of process. We therefore affirm the Court of Appeals’ judgment.

1. The Board contends that OCGA § 50-21-35 required Ms. Summerlin to have the summons and complaint handed to Jones *340personally in order to perfect service of process on the Board. The Board rests its argument on the following portion of OCGA § 50-21-35:

In all civil actions brought against the state under [the Georgia Tort Claims Act], to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address.

According to the Board, the statutory text specifies not only who must be served (i.e., the CEO of the agency sued and the director of the Risk Management Division) and where (at their usual office address), but also how (by personally handing the summons and complaint to the two designated individuals). This reading would add an element to the statute the General Assembly elected not to include.

In statutes regarding “service of process,” the word “service” is a term of art referring to the “formal delivery of a writ, summons, or other legal process.”7 This “formal delivery’ may be accomplished by handing the “process” — here, the summons and complaint — to a specific individual. However, service of process may also be accomplished by certified mail, hand delivery to a party’s agent, or even publication depending on the circumstances.8 Thus, to say, as OCGA § 50-21-35 does, that a plaintiff must “cause process to be served upon” the chief executive officer of a State agency and the director of the Risk Management Division to perfect service of process tells us only who must be served in cases arising under the Georgia Tort Claims Act, not how the named individuals must be served. To answer that question, we must look elsewhere.

The Board contends that there is nowhere else to look. According to the Board, the Georgia Tort Claims Act is “a self-contained limitation on the waiver of state sovereign immunity,” and courts are thus prohibited from “looking] beyond the four corners” of the Georgia Tort Claims Act to find answers to procedural questions. This argument is difficult to sustain in light of our recent unanimous decision in Camp v. Coweta County, 280 Ga. 199 (625 SE2d 759) (2006), in which we specifically relied on OCGA § 9-11-15 (a) in holding that *341amendments to the complaint are generally allowed prior to the entry of a pretrial order even in Georgia Tort Claims Act cases.9 Moreover, it contradicts the plain language of several provisions of the Civil Practice Act,10 including the one governing service of process.11

Under the Board’s reading of OCGA § 50-21-35, every time a plaintiff sues a State agency under the Georgia Tort Claims Act, the sheriffs department (or some other designated process server) must track down and secure an audience with the agency’s CEO so that the summons and complaint can be personally handed to him or her; hand delivery to an administrative assistant or any other agency employee is legally insufficient. The statutory text does not demand such a counterintuitive interpretation.

The Georgia Tort Claims Act is not a civil procedure statute. It touches on procedural matters only incidentally. It makes no provision for the form of pleadings and motions, pretrial discovery, trial practice, or the entry of judgments and summary judgments. Thus, if Georgia Tort Claims Act cases are ever to be litigated, the courts will have to look elsewhere for answers to procedural questions. The place to find these answers is the Civil Practice Act. Accordingly, we hold that the Court of Appeals properly looked to the “public body” service provision of the Civil Practice Act to determine whether Ms. Summerlin was required to have the summons and complaint handed to Jones personally in order to perfect service of process on the Board.

2. In addition, the Board waived any service of process defense it may have had by its own actions during discovery. Although the Board raised the defective service defense in its answer to Ms. Summerlin’s complaint, just a few weeks later it submitted woefully inadequate responses to Ms. Summerlin’s discovery requests. As the Court of Appeals explained:

*342Summerlin’s interrogatories specifically asked Georgia Pines to state the basis upon which it contended there was any deficiency in the service of process claim and to identify who Georgia Pines contended should have been served. Interrogatory Number 1 read as follows:
Do you contend that any of the named Defendants have been improperly named as parties to this action and/or that improper or incorrect agents for service were utilized to effectuate service upon the Defendants? If your answer to either of these inquiries is “yes,” please provide a detailed explanation as to why you contend the named Defendants have been improperly named or the agents used for service were improper and provide the complete and correct name of the entities you contend should have been named and/or served.
(Emphasis supplied.) In its responses to Summerlin’s interrogatories, served approximately one month after its answer, Georgia Pines responded as follows:
Yes. Lakeview ITR is not an independent legal entity and, therefore, is improperly named as a defendant in this suit.
With regard to service of process, plaintiff failed to execute service as statutorily prescribed by the Georgia Tort Claims Act.
Georgia Pines did not state anywhere within its interrogatory response that Brogdon was an incorrect or improper agent for service of process, nor did Georgia Pines state that Jones had not been served with the complaint.
In Interrogatory Number 2, Summerlin asked,
Do you contend that venue is improper in this Court as to any of the named Defendants, jurisdiction is lacking over any of the named Defendants in this Court, or that service of process has been deficient on any of the named Defendants in this matter? If so, please describe and state with specificity all factual and legal bases supporting any such contention(s).

*343(Emphasis supplied.) Georgia Pines responded, “No.”12

The Board’s failure to provide any factual basis for its legal conclusion deprived Ms. Summerlin of an opportunity to correct the alleged defect in a timely manner. We agree with the Court of Appeals that “[a]ny approval by this court of [Georgia Pines’] procedural ‘sandbagging’ in this case would reintroduce the sporting aspect of pleading the Civil Practice Act was designed to eliminate.”13

The Board argues that in cases arising under the Georgia Tort Claims Act, any defect in service of process deprives the trial court of subject matter jurisdiction and therefore cannot be waived. This argument is meritless. The service of process provision of the Georgia Tort Claims Act is procedural in nature, not jurisdictional.14 As the United States Supreme Court has explained:

Service of process, we have come to understand, is properly regarded as a matter discrete from a court’s jurisdiction to adjudicate a controversy of a particular kind [i.e., subject matter jurisdiction], or against a particular individual or entity [i.e., personal jurisdiction]. Its essential purpose is auxiliary, a purpose distinct from . . . substantive matters [such as] who may sue, on what claims, for what relief, [and] within what limitations period. Instead, the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections.

Henderson v. United States, 517 U. S. 654, 671-672 (116 SC 1638, 134 LE2d 880) (1996) (footnotes omitted). There is no dispute that the Board was well aware of Ms. Summerlin’s claims even before she filed her complaint and would have had a full and fair opportunity to answer the complaint and present its defenses and objections had the trial court not terminated the proceedings prematurely by granting summary judgment in favor of the Board. Accordingly, we affirm the *344Court of Appeals’ holding that the Board waived its defective service of process defense.15

Judgment affirmed.

All the Justices concur, except Hines and Melton, JJ., who concur specially.

OCGA§§ 50-21-20 to 50-21-37. The Georgia Tort Claims Act is the Georgia analog to the Federal Tort Claims Act, 28 USC §§ 1346, 2671-2680. Edwards v. Dept. of Children & Youth Svcs., 271 Ga. 890, 891-892 (525 SE2d 83) (2000). See Mauricia Allen, Note, The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?, 18 Ga. St. U. L. Rev. 795, 797-801 (2002) (describing briefly the history of the two acts).

Ms. Summerlin filed suit both individually and in her capacity as administratrix of her son’s estate.

Summerlin v. Ga. Pines Community Svc. Bd., 278 Ga. App. 831 (630 SE2d 115) (2006).

OCGA §§ 9-11-1 to 9-11-133.

OCGA § 9-11-4 (e) provides in relevant part as follows:

Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: ... (5) ... If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof.

The Court of Appeals concluded that Brogdon qualified as a “clerk” under OCGA§ 9-11-4 (e) (5). We express no opinion on the Court of Appeals’ resolution of that question.

Jeremy A. Colby, You’ve Got Mail: The Modern Trend Towards Universal Electronic Service of Process, 51 Buffalo L. Rev. 337, 337, n. 1 (2003) (quoting Black’s Law Dictionary 1372 (7th ed. 1999)).

See generally OCGA § 9-11-4; Fed. R. Civ. Proc. 4.

Camp, supra, 280 Ga. at 203 & n. 7.

OCGA§§ 9-11-1 (“This chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity....”), 9-11-81 (“This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law....”). See United States v. Yellow Cab Co., 340 U. S. 543, 553 (71 SC 399, 95 LE2d 523) (1951) (recognizing that similar language in the Federal Rules of Civil Procedure renders them applicable to claims arising under the Federal Tort Claims Act).

OCGA § 9-11-4 ® (“The methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a statute provides for another method of service, service may be made under the circumstances and in the manner prescribed by the statute or under any other methods prescribed in this Code section.”), (k) (“The methods of service provided in this Code section may be used as alternative methods of service in proceedings in the probate courts and in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.”).

Summerlin, supra, 278 Ga. App. at 835-836.

Summerlin, supra, 278 Ga.App. at 836 (quoting Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1983)).

See Henderson v. Dept. of Transp., 267 Ga. 90, 90 (475 SE2d 614) (1996) (holding that “the notice and service provisions [of the Georgia Tort Claims Act] are procedural rules that constitutionally may be applied retroactively”).

The special concurrence contends that all of Division 1 is dicta lacking in precedential value. It is not. This case is here on a grant of certiorari. As noted above, we granted certiorari to determine whether the Court of Appeals erred in applying the public body service provision of the Civil Practice Act to decide whether Ms. Summerlin properly served the Board in this case. As a separate, additional basis for its decision reversing the trial court’s grant of summary judgment to the Board, the Court of Appeals cited the Board’s waiver of any defective service of process defense. We affirm the Court of Appeals’ decision on both grounds.