Styles v. Spyke Ten, LLC
342 Ga. App. 122
| Ga. Ct. App. | 2017Background
- DeKalb County sold Styles’s property (149 Candler Rd) at tax sale; excess proceeds deposited in court registry. Spyke Ten claimed a Fulton tax lien on a different property, purportedly redeemed the DeKalb sale by paying Callaway $180,000, and sued to foreclose and recover the excess funds.
- Spyke Ten filed an unverified complaint seeking to enforce its lien and alleged Styles could be served at 98 Candler Rd; it also stated it would "tack and mail" service at 149 Candler Rd. Process server affidavit said documents were posted at 149 and attempted at 98 (marked “Non-Est”).
- Spyke Ten moved for service by publication under OCGA § 9-11-4(f)(1)(B), supported by counsel’s affidavit that a skip tracer used a LexisNexis/Accurint search to locate Styles; no skip tracer affidavit was produced. Trial court authorized publication.
- After publication and no answer, trial court entered default judgment against Styles for equitable subrogation ($180,000). Styles filed a verified motion to set aside, averring he resided at 149 Candler Rd continuously and attaching tax bills addressed there.
- At the hearing the process server admitted he was instructed only to attempt service at the two addresses, performed no independent locating steps, made one outing, and did not use additional databases; the skip tracer did not testify. Trial court denied the motion to set aside; Court of Appeals granted review.
Issues
| Issue | Plaintiff's Argument (Styles) | Defendant's Argument (Spyke Ten) | Held |
|---|---|---|---|
| Whether service by publication satisfied OCGA § 9-11-4(f)(1)(B) | Service by publication was improper because Spyke Ten failed to exercise due diligence to locate Styles; relied on limited steps and wrong address | Spyke Ten argued it exercised due diligence: used Accurint (Lexis) to find last known address, attempted personal service at that address, posted and mailed at property | Reversed: Spyke Ten did not show due diligence; single-source search and limited server efforts were inadequate to authorize publication |
| Whether publication satisfied due process (reasonable efforts to provide notice) | Publication violated due process because plaintiff had actual residence at 149 and evidence (tax bills) showed address; posting/mail proof was inadequate | Spyke Ten argued combining posting, attempted service, and mailing made actual notice reasonable; process reasonably calculated to inform Styles | Reversed: procedures were not reasonably calculated to give actual notice; plaintiff did not pursue reasonably available channels |
| Whether default judgment should be set aside for lack of in personam jurisdiction | Judgment should be set aside because jurisdiction rested on defective publication/service | Spyke Ten maintained judgment valid due to court-ordered publication and alleged actual knowledge by Styles | Judgment set aside (trial court abused discretion in permitting publication); appellate court reversed default judgment denial |
| Sufficiency of mailing and proof of mailing | Envelope evidence and publisher affidavit were insufficient to prove proper mail or publication timing | Spyke Ten contended mailing and publication occurred; publisher defect was immaterial | Evidence was insufficient: envelope lacked postmark/date; publisher affidavit defects undermined proof of mailing/publication |
Key Cases Cited
- Moore v. Davidson, 292 Ga. App. 57 (standard of review for OCGA 9-11-60(d) motion to set aside)
- Vibratech, Inc. v. Frost, 291 Ga. App. 133 (factual disputes on service are for trial court; findings upheld if supported)
- Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123 (service must comply with statute; substantial compliance insufficient)
- Abba Gana v. Abba Gana, 251 Ga. 340 (publication requires showing reasonable diligence and pursuing every reasonably available channel)
- Ragan v. Mallow, 319 Ga. App. 443 (due diligence requirement for publication service)
- McGhee v. Jones, 287 Ga. App. 345 (skip tracer assertions require specifics to show diligence)
- H & C Dev. v. Bershader, 248 Ga. App. 546 (appellate courts independently decide adequacy of notice searches)
- Hamilton v. Renewed Hope, 277 Ga. 465 (error where plaintiff relied only on tax and deed records without other channels)
- DRST Holdings v. Brown, 290 Ga. 317 (statutory discussion of redemption rights under OCGA § 48-4-40 series)