Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc.
317 Ga. App. 123
| Ga. Ct. App. | 2012Background
- Brennan sued Hutcheson for payment on an open account for work on Hutcheson’s property (2006–2008).
- Hutcheson failed to timely answer after service by publication, leading to a default judgment against her.
- Hutcheson challenged the trial court’s denial of a motion to set aside the default on the ground that service by publication was improper and ineffective.
- Clerk of the Walker County Superior Court conceded it failed to mail required documents to Hutcheson under OCGA § 9-11-4 (f) (1) (C), violating service-by-publication requirements.
- Trial court initially held Hutcheson evaded service thus authorizing publication; on appeal, the court reversed the denial of the motion to set aside the default and ultimately reversed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service by publication proper? | Hutcheson | Hutcheson | Service invalid; no personal jurisdiction |
| Did Clerk fail to mail required documents under OCGA § 9-11-4 (f) (1) (C)? | Brennan | Hutcheson | Clerk failed to mail; service defective |
| Does lack of proper service defeat the default judgment? | Brennan | Hutcheson | Yes; due process requires proper service |
| What is the appropriate standard of review for setting aside a default judgment when service is defective? | Brennan | Hutcheson | De novo/legal error standard applies to service issue; reversal appropriate |
| Does the court’s ultimate ruling on damages affect the need to address service deficiency? | Brennan | Hutcheson | Damages issue moot; due process defect controls |
Key Cases Cited
- Bible v. Bible, 259 Ga. 418 (1989) (service by publication must follow statute; substantial compliance not enough)
- Melton v. Johnson, 242 Ga. 400 (1978) (notice by publication is proper only when done per statute)
- Coker v. Moemeka, 311 Ga. App. 105 (2011) (invalid service by publication defeats personal jurisdiction)
- McDade v. McDade, 263 Ga. 456 (1993) (statutory requirements for service by publication must be strictly followed)
- Taylor v. Young, 253 Ga. App. 585 (2002) (authenticated records and procedural requirements in service matters)
- Fudge v Balkissoon, 199 Ga. App. 755 (1991) (service by publication must be as statute provides; substantial compliance inadequate)