Full Text of Appellant’s Brief

COURT of APPEALS of GEORGIA

Case Number A25A1075

MICHAEL PERRY

Plaintiff / Appellant

— versus —

DARRYLL PETERSON

Defendant / Appellee

APPELLANT’S BRIEF

Riah Greathouse

Georgia Bar No. 403830

Katherine Brown

Georgia Bar No. 608772

Greathouse Trial Law, LLC

100 Galleria Parkway Suite 1460

Atlanta, GA 30339

Telephone: 678-310-2827

Facsimile: 404-393-3281 Riah@atltriallaw.com

Katherine@atltriallaw.com

Daniel E. Holloway

Georgia Bar No. 658026

DEH Law, PLLC

2062 Promise Road, Unit 1305

Rapid City, SD 57701

(404) 670-6227

dan@dehlegal.com

TABLE OF CONTENTS

INTRODUCTION 4

JURISDICTIONAL STATEMENT 5

ENUMERATION OF ERRORS 6

STATEMENT OF THE CASE 7

DE NOVO REVIEW OF LEGAL QUESTIONS 10

ARGUMENT 11

1. A civil action commences when a complaint is filed; the court acquires jurisdiction over the defendant when he is served; and a failure to make proof of service is not jurisdictional — so late filing of proof of service does not invalidate a judgment or provide a basis for dismissal. 11

2. It is undisputed here that service was made months before the limitations period expired. So the trial court acquired jurisdiction over Pearson, and the case against him commenced, before the limitations period expired. 15

3. Late filing of PROOF of service is not a basis for dismissal if service was in fact made properly and timely. 17

Supreme Court Cases 17

Court of Appeals Cases 21

Superior & State Court Cases 25

The Trial Court’s Reasoning in this Case 26

CONCLUSION 28

TABLE OF AUTHORITIES

Cases

Carter v. Progressive Ins. Co., 246 Ga. App. 562 (2000) 16

Couch v. Creative Hospice Care, 2020 Ga. State LEXIS 4603 25

Cousin v. Tubbs, 353 Ga. App. 873 (2020) 16

Gonzalez v. Miller, 320 Ga. 170 (2024) 10

Henderson v. James, 350 Ga. App. 361 (2019) 10

Johnson v. Grant, 2020 Ga. State LEXIS 2209 25

Jones v. Bibb Brick, 120 Ga. 321 (1904) 4, 13, 20

Kegler v. Pite, 2018 Ga. Super. LEXIS 4351 9, 26

Lewis v. Waller, 282 Ga. App. 8 (2006) 22

McPherson v. McPherson, 238 Ga. 271 (1977) 6, 18

Millis v. Millis, 165 Ga. 233 (1927) 19

Montgomery v. USS Agri-Chemical, 155 Ga. App. 189 (1980) 13, 22, 27

Nelson v. Lovett, 104 Ga. App. 770 (1961) 24

Newsome v. Johnson, 305 Ga. App. 579 (2010) 21

Olvey v. Citizens & S. Bank, 146 Ga. App. 484 (1978) 23

Patterson v. Coleman, 252 Ga. 152 (1984) 16

Roberts v. Roberts, 226 Ga. 203 (1970) 18

Sanders Truck v. Beverly, 113 Ga. App. 271 (1966) 24

Summers v. Wasdin, 337 Ga. App. 671 (2016) 14

Thompson v. Lagerquist, 232 Ga. 75 (1974) 11

Thorburn Co. v. Allied Media, 237 Ga. App. 800 (1999) 12

Van Omen v. Lopresti, 357 Ga. App. 9 (2020) 27

Statutes

OCGA 9-11-3(a) 11

OCGA 9-11-4(e) 12, 15

OCGA 9-11-4(h) 4, 6, 9, 12, 13, 19, 21-27

INTRODUCTION

“Failure to make proof of service shall not affect the validity of the service.”

— OCGA 9-11-4(h).

“Process and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional.”

— Jones v. Bibb Brick, 120 Ga. 321 (1904)

The trial court dismissed Michael Perry’s claim against Darryl Pearson because Perry did not file proof of service before the statute of limitations passed and did not exercise the greatest possible diligence in filing the proof. Defendant Pearson acknowledges that a Sheriff’s Deputy served him with the summons and complaint month before the limitations period passed. But the trial court deemed that service is not made until proof of it is filed with the court, and that “the action against the Defendant does not begin until such a time as when the Plaintiff files the return [of service] with the court.” The trial court thus dismissed Perry’s claim against Pearson. That was error.

Service and proof of service are two different things. A failure of proof has no effect on the validity of service. If a plaintiff does not file proof of service within five days of making service, then the defendant can hold off on filing an answer to the complaint until the plaintiff files the proof of service. But that’s the only “remedy” for delay in filing the proof of service. Where service has in fact been made properly and timely, the failure to file proof of service timely is not a basis for dismissing the case. Accordingly, on behalf of Michael Perry we ask the Court to reverse the dismissal and remand for further proceedings.

JURISDICTIONAL STATEMENT

Basis for this Court’s appellate jurisdiction: OCGA 5-6-34(a)(1), appeal from a final judgment — following the trial court’s order designating a final judgment pursuant to OCGA 9-11-54(b).

Basis for this Court having jurisdiction instead of the Supreme Court: OCGA 15-3-3.1(6), cases not reserved to the Supreme Court or conferred on other courts. See also Ga. Const. Art. VI, Sec. VI, Par. II (identifying issues not implicated by this appeal).

Filing dates establishing that the appeal is timely:

• November 25, 2024 — Order designating a final judgment pursuant to OCGA 9-11-54(b). (V2–248.)

• December 19, 2024 — Notice of Appeal. (V2–249.)

• January 30, 2025 — Notice of Docketing of Appeal.

• February 17, 2025 — Filing of this brief.

ENUMERATION OF ERRORS

1. Erroneously treating the filing of proof of service as if it were part of service itself. This is contrary to OCGA 9-11-4(h) which treats service and proof of service as two different things: “Failure to make proof of service shall not affect the validity of the service.”

2. Erroneously concluding that “the action against the Defendant does not begin until such a time as when the Plaintiff files the return [of service] with the court.” This is contrary to OCGA 9-11-4(h). It is also contrary to a century of Georgia caselaw holding that proof of service is not jurisdictional — so that judgment in a case is valid even though proof of service was never filed. See, e.g., McPherson v. McPherson, 238 Ga. 271 (1977) (rejecting an argument that a judgment was invalid because proof of service was never filed).

3. Erroneously dismissing Perry’s claim against Pearson on the basis of insufficiency of service. This was erroneous because Pearson conceded that he was properly served the summons and complaint by a Sheriff’s Deputy before the statute of limitations ran.

STATEMENT OF THE CASE

On June 28, 2022, Defendant/Appellee Pearson crashed his pickup truck into Plaintiff/Appellant Perry’s car. (V2–8.) On October 19, 2023 (about eight months before the statute of limitations ran), Perry filed this lawsuit. (V2–7.) Perry intended to file in Carroll County but inadvertently filed in Bryan County. (Id.) On November 16, 2023, Defendant Pearson filed an answer in Bryan County. (See V2–165, ¶ 4.) Weeks later, on December 15, 2023, Plaintiff Perry moved to transfer the case to Carroll County. (V2–80.) That order was granted on January 5, 2024. (V2–5.)

After the case was transferred to Carroll County, on January 23, 2024 (still about five months before the limitations period expired), Perry’s counsel sent the lawsuit papers to the Carroll County Sheriff’s Office for service on Defendant Pearson. (V2–197.) On February 15, 2024, a Sheriff’s Deputy served the summons and complaint on Defendant Pearson — about four months before the limitations period expired. (V2–171.) The same day, the Deputy documented service on Pearson on a “Sheriff’s Entry of Service” form. (Id.) The next day, on February 16, 2024, Defendant Pearson’s insurance company (Geico) filed an Answer in the Carroll County case. (V2–97.) On March 1, 2024, Pearson’s counsel received the Entry of Service from the Sheriff’s office. (V2–197.)

On March 14, 2024 (about three months before the limitations period expired) Pearson filed an Answer and served interrogatories and document requests. (V2–112.)

On July 16, 2024, after the limitations period expired, Defendant Pearson filed a motion to dismiss. Pearson’s motion asserted that “To date, Plaintiff has not perfected service of process upon Defendant.” (V2–165.) That was not true, and Pearson did not support the assertion. Pearson did not deny that he had been given the summons and complaint by a Sheriff Deputy or other process server. Pearson submitted no affidavit. (V2–165-67.)

After receiving Defendant Pearson’s motion to dismiss, Perry’s counsel realized they had not filed the proof of service. So they filed it the same day they responded to the dismissal motion, August 16, 2024. (V2–171, 172.)

Without a hearing, the trial court granted the motion to dismiss Perry’s claims against Pearson. Without discussing the issue, the trial court assumed that service is not perfected until proof of service is filed. The court wrote:

Service can be perfected when a proper service agent delivers the complaint and the summons to the defendant, and service is filled with the clerk. … [Proof of service was] not e-filed with the Clerk of Carroll County until August 16th, 2024. This date is well outside both the statute of limitations (June 28, 2024) and outside of any statutory safe harbors.

The court dismissed Perry’s claim against Pearson with prejudice. (V2–195.)

Plaintiff Perry filed a motion to reconsider, arguing among other things that “the failure to file the proof of service shall not affect the validity of the service if service was made.” Perry cited OCGA 9-11-4(h) and Kegler v. Pite, 2018 Ga. Super. LEXIS 4351 (DeKalb County, Jan. 11, 2018). (V2–197-200.)

Defendant Pearson opposed Perry’s motion to reconsider. In doing so, Pearson made clear that he “does not contest the sufficiency upon whom service was made, or whether service was proper.” (V2–228.)

The trial court denied Perry’s motion to reconsider. (V2–231-37.) The trial court appears to have thought the filing of proof of service is part of service itself — so that the court does not acquire jurisdiction over the defendant and “the action against the Defendant does not begin” until proof of service is filed with the court. (V2–231-32.) On that incorrect premise, the trial court reasoned that Perry did not make service until after the statute of limitations ran. (V2–233-34: “The Court agrees that service was made valid on August 16th, 2024, when the return was filed.”) Based on that, the trial court held Perry to the standard of “greatest possible diligence” in service. Finding that Perry did not meet that standard, the court upheld the prior dismissal. (V2–235-36.)

After the dismissal of Pearson, Pearson’s insurer Geico remained in the case, preventing a direct appeal. On Perry’s motion (V2–238), the trial court on November 25, 2024, designated its dismissal of Pearson as a final judgment pursuant to OCGA 9-11-54(b). (V2–248.) This appeal followed.

DE NOVO REVIEW OF LEGAL QUESTIONS

It is a question of law whether the filing of proof of service constitutes an integral part of service itself, so that service is not made, and jurisdiction over the defendant is not obtained, until proof of service is filed in court. On questions of law, this Court exercises de novo review. See Gonzalez v. Miller, 320 Ga. 170 (2024) (“This appeal presents questions of law, and questions of law are subject to de novo review.”).

ARGUMENT

1. A civil action commences when a complaint is filed; the court acquires jurisdiction over the defendant when he is served; and a failure to make proof of service is not jurisdictional — so late filing of proof of service does not invalidate a judgment or provide a basis for dismissal.

This case illustrates confusion about elementary principles of civil actions. So we start with a few basics.

First, “A civil action is commenced by filing a complaint with the court.” OCGA 9-11-3(a).

Second, despite the commencement of a case, the trial court acquires jurisdiction over the defendant only when the defendant is served with the summons and complaint. The US and Georgia Constitutions both include a right of due process. So the court has no power over the defendant until the defendant is given notice — that is, until service of process. See, e.g., Thompson v. Lagerquist, 232 Ga. 75 (1974) (“[N]otice is the very bedrock of due process. … [I]n the absence of service … no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.”).

Third, the Civil Practice Act defines service. It defines service thus: “Service shall be made by delivering a copy of the summons attached to a copy of the complaint” in various specified ways. OCGA 9-11-4(e). When service has been made as provided by § 4(e), the defendant has received the constitutionally required notice, and the court has acquired jurisdiction over the defendant. Filing the proof of service is not included as an action that constitutes service. In stating what counts as service, § 4(e) says nothing about filing the proof of service.

Fourth, as a practical matter, the trial court does need to know if the court has jurisdiction over the defendant. It would be a waste of time, for example, to go through the work of making a default judgment only to realize later that the court never acquired jurisdiction over the defendant. So the CPA requires the plaintiff to file proof of service with the court. OCGA 9-11-4(h).

However, fifth, “Failure to make proof of service shall not affect the validity of the service.” OCGA 9-11-4(h). That is, filing proof of service is not part of the service itself. The filing of a proof is a separate act. Failure to file the proof does not mean a failure to make the service.

Sixth, as implied by the preceding points, the filing of proof of service is not “jurisdictional” — that is, the filing of proof is not necessary for the court to acquire jurisdiction over the defendant. That was the rule even before the Civil Practice Act. See, e.g., Jones v. Bibb Brick, 120 Ga. 321 (1904) (“Process and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional.”). See also, e.g., Montgomery v. USS Agri-Chemical, 155 Ga. App. 189 (1980) (“It is apparent that, under the Civil Practice Act, what has formerly been characterized as a ‘void’ return of service is not fatal to the validity of a judgment rendered under proper service, even if such judgment arises by default.”).

Seventh, if a plaintiff neglects to file proof of service within five days of making service, then the defendant can choose not to file an answer to the complaint until after the plaintiff files the proof. OCGA 9-11-4(h) (“If the proof of service is not filed within five business days, the time for the party served to answer the process shall not begin to run until such proof of service is filed.”). For a case applying that delayed-answer procedure, see Summers v. Wasdin, 337 Ga. App. 671, 672-73 (2016).

———

All this brings us to the issue in the present case: What happens when a plaintiff files a case and serves the summons and complaint months before the statute of limitations runs, but neglects to file the proof of service until six weeks after the statute runs? By now the answer should be obvious: The case proceeds. The trial court acquired jurisdiction over the defendant when the defendant was served — before the statute of limitations ran. Until the proof of service is filed, maybe the defendant chooses to hold off on filing an answer; or maybe (as in this case), the defendant goes ahead and files an answer. But the six-week delay in filing the proof of service has no other practical effect on the case. The delay provides no basis for dismissing the case.

2. It is undisputed here that service was made months before the limitations period expired. So the trial court acquired jurisdiction over Pearson, and the case against him commenced, before the limitations period expired.

In this case, it is undisputed that a Sheriff’s Deputy personally delivered the summons and complaint to Defendant Pearson on February 14, 2024 — more than four months before the statute of limitations ran. (V2–171.) That constitutes service pursuant to OCGA 9-11-4(e)(7). Defendant Pearson has never denied that.

Defendant Pearson has never challenged the adequacy of service on any ground other than the late filing of proof of service. In his Answer, Pearson claimed the insufficiency of service generally but did not deny that a Sheriff’s Deputy or other process server delivered the summons and complaint to him. (V2–112.) Pearson did not deny that in his motion to dismiss, either. (V2–165-66.) Much less did Pearson submit a sworn affidavit denying service. Later, in responding to Plaintiff Perry’s motion to reconsider, Pearson wrote, “Defendant’s Motion to Dismiss … does not contest the sufficiency upon whom service was made, or whether service was proper….” (V2–228.)

The trial court itself did not find the Deputy’s return of service false or defective. To the contrary, in the first dismissal order, the trial court wrote, “A Sheriff's Deputy was sent to the defendant’s address on February 15th, 2024, and recorded that the Defendant was serviced via personal service.” The trial court did not question the accuracy of the Deputy’s record. (V2–195.)

Here, in the absence of any contrary evidence, the Deputy’s proof of service is conclusive. See Patterson v. Coleman, 252 Ga. 152 (1984) (“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.”); Carter v. Progressive Ins. Co., 246 Ga. App. 562 (2000) (“The process server's return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.”).

———

The Sheriff’s Deputy properly and timely served Plaintiff Perry’s summons and complaint on Defendant Pearson months before the statute of limitations ran. The trial court therefore acquired jurisdiction over Pearson before the limitations period expired. There is no basis for dismissing Perry’s claim against Pearson.

3. Late filing of PROOF of service is not a basis for dismissal if service was in fact made properly and timely.

All the essential points have been made above. As we have already seen, while service itself is vital, proof of service is not required to create jurisdiction over the defendant. The delay in filing proof of service here would have allowed Defendant Pearson to hold off on filing an answer to the complaint until after the proof was filed. But Pearson chose instead to file an answer. But having chosen to forego the remedy the CPA does provide, Pearson does not get to make up an entirely different one — dismissal of the case — in its place.

This brief could end here. However, because of the confusion over these procedural matters, and since there are relatively few cases on point, it may be useful to collect those cases here. The remainder of the brief does that and then briefly addresses the trial court’s reasoning.

Supreme Court Cases

Both before and after enactment of the Civil Practice Act, the Supreme Court has repeatedly held that a failure of proof of service does not even preclude entry of a default judgment against the defendant, much less mandate dismissal of the claim.

McPherson v. McPherson, 238 Ga. 271 (1977)

McPherson was a divorce case by the wife against the husband. The trial court dismissed the case for lack of jurisdiction. The Supreme Court reversed. The husband argued in part that the trial court lacked jurisdiction over him because the wife had failed to file proof of service, although service had been made. The Supreme Court rejected that out of hand:

In an effort to invoke the ‘right for any reason’ rule, on appeal the husband contends for the first time that the wife’s attorney, who had been specially appointed by the court to perfect service, did not make return of service by affidavit as required by [statute]. That section also provides that “Failure to make proof of service shall not affect the validity of the service.”

Judgment reversed.

Id. at 273. Where service was made, failure to file the proof of service does not authorize dismissal.

Roberts v. Roberts, 226 Ga. 203 (1970)

This was another divorce case. Both husband and wife filed citations for contempt against the other, based on violations of prior court orders. The trial court found both parties in contempt. Both parties appealed. On appeal, the wife disputed service of the husband’s writ of contempt against her. In addressing the evidence of proper service, the Supreme Court wrote that the statutory provision “Failure to make proof of service shall not affect the validity of service” “virtually eliminates the requirement of proof of service, except such as will satisfy the trial court in its discretion.” Id. at 205.

——

Pre-CPA cases are less relevant here, because OCGA 9-11-4(h) would abrogate any contrary prior caselaw. Nonetheless, it is noteworthy that pre-CPA cases saw the same the distinction between service and proof of service.

Millis v. Millis, 165 Ga. 233 (1927)

Millis was yet another divorce case. The Supreme Court held that where service has actually been made, a judgment may be valid even though proof of service was not made until after judgment was entered:

Service of the notice, both by its publication and by mailing it to the nonresident defendant, is jurisdictional. Lack of either one would render the judgment void. … The adjudication by the trial judge that service has been perfected in these ways, though essential and important, is like the return of an officer of service, not jurisdictional. Jurisdiction is dependent upon the fact of service, and not on proof thereof. The order furnishes the proof of service; but its absence does not render the judgment void.

Id. at 241-42. Again, failure to file proof of service does not prevent jurisdiction from attaching.

Jones v. Bibb Brick, 120 Ga. 321 (1904)

The trial court in the present case relied in part on dicta from Jones. (V2–232-33.) Jones does not support the trial court’s dismissal of Perry’s claim against Pearson. In Jones, the trial court entered a default judgment against the defendant. The defendant later moved to set aside the default. It was undisputed (a) that service was proper, but also (b) that the proof of service was “incomplete and defective.” The proof of service was never amended.

The Supreme Court upheld the default judgment. In doing so, the Court confirmed that service and proof of service are two different things, and that proof is not jurisdictional:

Process and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional. Still it is manifest that a court ought not to proceed without having a legal return of record to show that its process had been actually served and that it had acquired jurisdiction over the person of the defendant. If there is an entire absence of a return, or if the return made is void because showing service upon the wrong person, or at a time, place, or in a manner not provided by law, the court can not proceed. … Where there has been valid service and no return, the deficiency may be supplied BEFORE TAKING FURTHER STEPS IN THE CAUSE. … For in its last analysis it is the fact of the service, rather than the proof thereon by the return, which is of vital importance.

Id. at 324-25. This pre-CPA dicta means that before a trial court takes action in a case (e.g., issuing a default judgment), the court should require the plaintiff to file proof of service. It does not mean the court should dismiss the case. The reference to supplying proof before taking further steps would make no sense if the lack of proof was a basis for dismissal. But even if Jones could be read as permitting dismissal, it would to that extent be abrogated by the provision in OCGA 9-11-4(h) that “Failure to make proof of service shall not affect the validity of the service.”

———

Our Supreme Court’s precedent — in the CPA era and before — precludes dismissal of a claim based on late filing of proof of service, where the service itself was proper and timely.

Court of Appeals Cases

Unsurprisingly, this Court’s precedent also recognizes that service and proof of service are two different things, and that late filing of proof of service does not invalidate service, does not prevent jurisdiction from attaching, and furnishes no basis to dismiss a claim or set aside a judgment.

Newsome v. Johnson, 305 Ga. App. 579 (2010)

In Newsome, a defendant challenged entry of a default judgment on the ground that (among other things) the affidavits of process “were not timely filed.” Citing OCGA 9-11-4(h), this Court wrote that, “The argument as to the timing of the filing of the return of service bears no weight in determining whether in fact proper service was made.” Id. at 582-83. This Court upheld the default judgment.

Lewis v. Waller, 282 Ga. App. 8 (2006)

Lewis concerned a renewal action that was filed after the statute of limitations expired. In the renewal action, Plaintiff Lewis served Defendant Waller shortly after filing the complaint but waited five months before filing the proof of service. On appeal, this Court reversed the trial court’s dismissal of the claim against Waller, despite the five-month delay in filing proof of service:

“Waller contends that entry of a default judgment would be improper because Lewis waited five months to file the affidavit of service…. But, failure to make proof of service does not affect the validity of the service. Likewise, late filing of the return of service does not affect the validity of the service, at least where the served party was not deceived or prejudiced by the delay.”

Late filing of proof of service does not authorize dismissal.

Montgomery v. USS Agri-Chemical, 155 Ga. App. 189 (1980)

In Montgomery — which the trial court relied on here — a defendant sought to set aside a default judgment because the original proof of service was defective. The defendant argued that the trial court erred in allowing a retroactive amendment of the proof of service. This Court rejected the defendant’s argument. The Court cited OCGA 9-11-4(h) and wrote:

It is apparent that, under the Civil Practice Act, what has formerly been characterized as a ‘void’ return of service is not fatal to the validity of a judgment rendered under proper service, even if such judgment arises by default.

In a footnote, the Court added:

This is not to say that the trial court should proceed to judgment without an affirmative showing of service in the record. However, if the court does so proceed and upon a subsequent challenge to the judgment it appears to the satisfaction of the court that proper service was in fact made, the original return may be amended or, if no return exists, it may be supplied so as to save that which has been done under service valid in fact.

With or without proof of service, the existence of actual service suffices to enter a default judgment. Hence, the lack of proof provides no basis for dismissal, although a court should require proof to be filed before entering judgment against the defendant.

Olvey v. Citizens & S. Bank, 146 Ga. App. 484 (1978)

Another defendant moved to set aside a default judgment and dismiss the case on the basis that proof of service was filed too late. This Court again rejected the defendant’s argument for dismissal:

Code § 81A-104 (g) dealing with return of service states it must be made to the court “promptly and in any event within the time during which the person served must respond to the process.” However, the last sentence of this subdivision adds the following: “Failure to make proof of service shall not affect the validity of the service.” … Late filing of the return of service, at least where it is not shown that any party was deceived thereby, does not void the service. This is in accord with prior case law holding that, while process and service are essential, the return of service is only evidence of what the officer has done and is not itself jurisdictional.

Late filing of proof was not a basis for dismissal.

Sanders Truck v. Beverly, 113 Ga. App. 271 (1966)

Sanders was decided under pre-CPA law. The defendant sought dismissal based on defective proof of service. In holding that dismissal was not authorized, this Court wrote: “It is the fact of service rather than the proof thereof which is of vital importance. So… where there has in fact been service though no return thereof has been made, this defect may be corrected.”

Nelson v. Lovett, 104 Ga. App. 770 (1961)

In this earlier pre-CPA case, the Court said the same thing: “[W]here there has been no return of service whatever, but evidence can be adduced to show that the defendant has in fact been served, a return of service may be made on motion by an entry on the process nunc pro tunc.”

———

In short, binding precedent makes clear that OCGA 9-11-4(h) means what it plainly says: “Failure to make proof of service shall not affect the validity of the service.” Service and proof of service are two different things. A failure to file proof of service may (at the defendant’s option) delay the filing of an answer. But late or absent proof of service does not invalidate service actually made, does not prevent jurisdiction over the defendant, and does not provide a basis for dismissal.

Superior & State Court Cases

Decisions of the trial courts are not binding, but it may be worth noting that the few trial courts to have addressed the issue (so far as the Lexis database shows) follow the rule stated above. For example, in Johnson v. Grant, the trial court had dismissed a case for lack of proof of service. After the plaintiff submitted proof of service, the court set aside the dismissal and reopened the case. See Civ. 19EV005450, 2020 Ga. State LEXIS 2209 (Fulton State, Feb. 19, 2020). Lack of proof is a defect that can be remedied, and once proof is supplied, dismissal is not authorized.

In Couch v. Creative Hospice Care, the defendants moved to dismiss on grounds of inadequate service. In denying the motion, the trial court cited OCGA 9-11-4(h) and wrote, “Failure of a party to file a return of service within five days of said service does not form appropriate grounds for dismissal, instead it lengthens the time in which defendants may file responsive pleadings.” See Civ. 19-EV-003033-E, 2020 Ga. State LEXIS 4603 (Fulton State, Aug. 19, 2020).

In Kegler v. Pite, the defendant moved to dismiss based in part on insufficiency of service. In denying the motion, the trial court noted, “As an initial matter, this Court notes that Plaintiff has not filed a return of service, and thus, service is not evident from the record. This fact, however, is not conclusive because the failure to file the proof of service shall not affect the validity of the service if service was made.” See Civ. 17CV9459-6, 2018 Ga. Super. LEXIS 4351 (DeKalb Superior, Jan. 11, 2018).

So far as we have found, the trial court’s decision in the present case is the only decision in which a Georgia court has dismissed a claim on the ground that proof of service was filed late, where service had in fact been made properly and timely. Our trial courts recognize that a failure to file proof of service does not invalidate service actually made, does not prevent jurisdiction over the defendant, and does not provide a basis for dismissing a claim.

The Trial Court’s Reasoning in this Case

The trial court erred principally in perceiving that the filing of proof service is part of the service itself — so that service is not made until the proof has been filed in court. The rest of the trial court’s reasoning flows from that primary error.

Neither Defendant Pearson nor the trial court cited any authority for the notion that filing the proof of service is part of the service itself. Nor did Pearson or the trial court offer any explanation of how that notion could be consistent with the provision in OCGA 9-11-4(h) that “Failure to make proof of service shall not affect the validity of the service.”

The trial court cited § 4(h) and Montgomery v. USS Agri-Chemical but did not explain how those authorities comport with the notion that service is not made until proof of it is filed in court. The trial court also cited Van Omen v. Lopresti, 357 Ga. App. 9 (2020), but that case deals with the situation in which service is made after the limitations period expires — which did not happen here.

Ultimately, the trial court’s ruling rests on policy concerns — specifically, the fear that “if a Plaintiff were allowed to serve someone and then not file that return at all, even if the statute of limitations had passed, then the Plaintiff could stall the case indefinitely and wait for a preferable or strategic moment to bring the case to life.” (V2–136-37.) The trial court did not explain how that would work, but the fear is unfounded. Regardless of proof of service, a defendant can file an answer — as Defendant Pearson did in this case. Regardless of proof of service, a defendant can serve interrogatories and document requests, can notice and take depositions, can file a motion to dismiss, can move for summary judgment, can request a trial date, etc. A plaintiff cannot prevent any of that by saying, “but I haven’t filed proof of service.” Regardless of proof of service, a plaintiff has no ability to “stall the case indefinitely.” In any event, even if the CPA had created such a system, the remedy would lie with the legislature, not in the disregard of the statutory provision that “Failure to make proof of service shall not affect the validity of the service.”

———

Service and proof of service are two different things. A failure to file proof of service does not invalidate service, does not prevent jurisdiction from attaching, and does not furnish a basis to dismiss a claim. The trial court erred in dismissing Perry’s claim against Pearson.

CONCLUSION

Plaintiff’s summons and complaint were properly and timely served on Defendant Pearson. The trial court erred by dismissing the claim. On behalf of Michael Perry, we ask this Court to reverse the dismissal and remand the case for further proceedings.

This submission does not exceed the word count limit imposed by Rule 24 (8,400 words).

Respectfully submitted February 17, 2025

Riah Greathouse

Georgia Bar No. 403830

Katherine Brown

Georgia Bar No. 608772

Greathouse Trial Law, LLC

100 Galleria Parkway Suite 1460

Atlanta, GA 30339

Telephone: 678-310-2827

Facsimile: 404-393-3281 Riah@atltriallaw.com

Katherine@atltriallaw.com

/s/ Daniel E. Holloway

Daniel E. Holloway

Georgia Bar No. 658026

DEH Law, PLLC

2062 Promise Road, Unit 1305

Rapid City, SD 57701

(404) 670-6227

dan@dehlegal.com

CERTIFICATE OF SERVICE

Pursuant to Court of Appeals Rule 6(b)(2), the foregoing document is being served today by United States Postal Service to all opposing counsel of record in the trial-court case (Carroll County State Court, Civ. No. STCV2024000015) — namely:

Counsel for Defendant Pearson:

Lindsay Reese

Law Office of Marcus A. Blackwell

3200 Windy Hill Road SE, Suite 1525E

Atlanta, GA 30339-8554

(404) 436-3179

lindsay.reese@allstate.com

Counsel for Co-Defendant GEICO Indemnity Co.

Veronica L. Hoffler, Esq.

Law Office of Andrews & Manganiello

100 Crescent Centre Parkway, Ste. 950

Tucker, GA 30084

vhoffler@geico.com

February 17, 2025

/s/ Daniel E. Holloway

Daniel E. Holloway

Georgia Bar No. 658026