Gamlins v. A. E. Roberts & Associates, Inc.Gamlins v. A. E. Roberts & Associates, Inc.
- Reporters:
- , , ,
- Before:
- Smith
In this аction brought to recover legal fees, Gamlins, Solicitors & Notaries, a business providing legal services in the United Kingdоm, brought suit against A. E. Roberts & Associates, Inc., a Georgia corporation, alleging that Roberts failed to pay Gаmlins for legal services performed in the United Kingdom. Gamlins appeals from the trial court’s grant of Roberts’s motion tо dismiss, brought on the grounds of insufficient service of process and the statute of limitation. Gamlins contends the trial court erred when it dismissed the action because Roberts made a general appearance and waived аny defense of lack of personal jurisdiction. We conclude that any argument regarding the inadequacy of the original attempt at service has been waived by Gamlins and that its attempt at later service was ineffectivе. Because the statute of limitation for a suit on account had expired without proper service on Roberts, the trial court did not err in dismissing Gamlins’s complaint.
The record shows that acting without an attorney, Mr. A. E. Roberts filed what appears to be correspondence between him and Gam-lins, which he now characterizes as an “answer.” Gamlins filed a motion for default judgment or, in the alternative, for judgment on the pleadings. Roberts then retained an attorney, who filed a notice of appearance, a response to Gamlins’s motion, and an amended answer. The trial court denied Gamlins’s motion, finding that although Roberts had not filed a proper answer, the summons was defeсtive and therefore service upon the corporation was insufficient. Gamlins then attempted service upon the Secretary of State under
1. Gamlins argues that the trial court should have granted its motion to enter a default judgment or for judgment on the pleadings. But Gamlins has not designated this order in the notice of appeal. The notice of appeal specifically recitеs that the order appealed from is the order granting Roberts’s motion to dismiss. Therefore, even though Gamlins argues in its brief the propriety of the trial court’s denial of its motion for a default judgment or judgment on the pleadings, it has waived consideration of this issue on appeal. “Matters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Citations and punctuation omitted.) Wilson v. City of Atlanta,
2. Gamlins contends the trial court erred in granting Roberts’s motion to dismiss the action. Gamlins argues that the trial court erroneously found that Robеrts was improperly served because Roberts made a general appearance, waiving any defеnse of lack of personal jurisdiction. The order dismissing Gamlins’s complaint did not recite the trial court’s reasoning оr the grounds for dismissal. But the motion was made on the ground that the complaint had never been served and was barred by thе applicable statute of limitation.
(a) The trial court had previously held that service was defective. This ruling is the law of the case. And Gamlins’s later attempt at service was never properly effected. Gamlins’s attemрt to serve Roberts under
shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefоre appears that the corporation has failed either to maintain a registered office or tо appoint a registered agent in this state.
The Secretary of State’s certificate of filing recites that the “attached documents regarding service of process have been filed.” The attached documents dо not include either the required certification or the required affidavit. The affidavit of Gamlins’s attorney, pointed to by Gamlins, is dated November 22, 2000, while Gamlins claims to have served the Secretary of State on November 13, 2000. That affidavit therefore did not exist at the time of service upon the Secretary of State and could not have been filеd at that time. And the affidavit of the private process server is inadequate under the statute. The record doеs not show that this process server was either a sheriff or marshal, or that he was appointed by the court, as required by
(b) The statute of limitation for a suit on account is four years.
Judgment affirmed.