Service By Publication Allowed Against Defendant Intentionally Evading Personal Service

This case concerned a defendant who was aware that the plaintiff was attempting personal service of the complaint. The defendant intentionally avoided personal service despite several attempts by the plaintiff to perfect service.  The Georgia Court of Appeals’ decision in Cascade Parc Property Owners Association, Inc., v. Clark, 336 Ga. App. 99, 783 S.E.2d 692 (2016), provided guidance to plaintiffs who find themselves in this situation.

Plaintiff Cascade Park initially filed suit against Defendant Stephani Clark on November 4, 2014, seeking to recover unpaid homeowners’ association fees, interest, and other charges.  Soon after filing, Plaintiff attempted service at a dwelling in Atlanta that turned out to be vacant.

The Fulton County Superior Court ordered Plaintiff to perfect service by December 5 or show cause why the case should not be dismissed.  Plaintiff found another address for Clark and attempted service on December 2, again without success.

Clark had apparently moved to Texas.  A Texas process server spoke with her on the telephone on December 3, and Clark agreed to meet and accept service.  On the next day, December 4, Clark reneged on her agreement to meet with the process server or to accept service.

On December 18, Plaintiff moved the trial court for permission to serve Clark by publication.  The trial court denied Plaintiff’s motion and then dismissed Plaintiff’s complaint, without prejudice.

Plaintiff refiled its suit on February 2, 2015.  On February 24, the Texas process server again spoke with Clark on the telephone.  She refused to admit him into the building where she lived or otherwise accept service.  The process server attempted service again two days later, also without success.

Three weeks later Plaintiff moved the trial court again for permission to serve the complaint by publication.  The trial court denied Plaintiff’s motion, stating that Plaintiff had not “exercised due diligence in pursuing reasonably available channels of information to locate and perfect service” and that the court was “unpersuaded that [Clark] is concealing herself to avoid service.”

The trial court directed Plaintiff to perfect service by April 17.  Plaintiff made no further attempt to serve Clark, and its complaint was dismissed.

Plaintiff then brought this appeal, arguing that service by publication should have been permitted, and that the trial court should not have dismissed the complaint.

The Georgia Court of Appeals first noted that the standard of review was whether or not the trial court had abused its discretion.

Quoting earlier precedent, the court of appeals stated:

It is the duty of a defendant to accept and submit to the service of process when he is aware of the process server’s purpose.  It is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.

Examining the language of the trial court’s order (quoted above), the court of appeals stated it was unclear what additional “channels of information” Plaintiff should have pursued or what relevant information those channels might have provided.  Furthermore, whether Clark was “concealing herself” was beside the point.  Once Clark became aware that service was being attempted, she had a duty to accept service.  She could not evade process by staying behind a locked door.

The Georgia Court of Appeals reversed the decision of the trial court, concluding that service by publication should have been permitted under these circumstances.  Implicit in the court of appeals’ decision was the conclusion that the complaint should have not have been dismissed.