Cascade Parc Property Owners Association, Inc. v. Clark
336 Ga. App. 94
| Ga. Ct. App. | 2016Background
- Cascade Parc sued Clark to recover unpaid HOA fees; initial suit (Nov 2014) led to unsuccessful service attempts and court-ordered deadline to perfect service.
- Clark, who had moved to Texas, spoke with process servers but refused to accept papers or to admit servers, remaining behind locked doors during multiple attempts.
- Trial court denied Cascade Parc’s motion for service by publication, concluding plaintiff had not shown due diligence and was not convinced Clark was concealing herself to avoid service; court ordered Cascade Parc to perfect service or show cause.
- Cascade Parc’s case was dismissed for failure to perfect service after its motion for reconsideration was denied and plaintiff did not effectuate further service within the deadline.
- Cascade Parc refiled and again attempted service in Texas; Clark again refused entry/acceptance, and the trial court likewise denied service by publication and dismissed the refiled complaint.
- On appeal, Cascade Parc argued denial of publication service and the court’s sua sponte dismissal were erroneous because Clark knowingly evaded service; the Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred denying service by publication | Cascade Parc: it exercised due diligence locating Clark and Clark knowingly evaded personal service, so publication was proper | Clark: (implied) plaintiff failed to show due diligence and Clark was not concealing herself | Court: Reversed — publication should have been allowed given attempts and Clark’s evasion |
| Whether trial court properly dismissed complaint for failure to perfect service | Cascade Parc: dismissal rewarded Clark’s knowing evasion and was improper | Clark: (implied) court had discretion to dismiss for failure to perfect service | Court: Reversed — dismissal was improper; trial court abused discretion |
Key Cases Cited
- Melton v. Johnson, 242 Ga. 400 (duty of defendant to accept service; purpose of service laws is fair notice)
- Jacobson v. Garland, 227 Ga. App. 81 (defendant aware of server must accept service; cannot evade by refusing)
- Newsome v. Johnson, 305 Ga. App. 579 (service may be sufficient by leaving papers when defendant evades at door)
- Tavakolian v. Agio Corp., 304 Ga. App. 660 (service valid where person matching description denied identity then closed door and papers left)
- Luca v. State Farm Mut. Auto Ins. Co., 281 Ga. App. 658 (trial court abused discretion by denying service by publication where due diligence shown)
- Wentworth v. Fireman’s Fund Am. Ins. Co., 147 Ga. App. 854 (service by publication appropriate when plaintiff shows due diligence)
- Lee v. Pace, 252 Ga. 546 (service under long-arm treated like in-state service)