News, Events, & Publications

In a lawsuit seeking to recover unpaid assessments on behalf of a community association client, Lueder, Larkin & Hunter was unable to perfect service upon the owner at several different addresses. The Court issued an Order directing that service be perfected within one week or the case would be dismissed. We were finally able to locate an address for the owner in Texas and had a private process server make contact with the owner. The owner made an appointment with the process server to accept service, but later reneged on the agreement. The Court subsequently dismissed the case for failure to serve the owner. We then re-filed suit, and re-attempted service on the owner at the address we had previously located. The process server spoke to the owner through the building’s intercom system and was advised by the owner that she would not allow herself to be served. We then moved for service by publication, which was subsequently denied by the trial court. We then filed a Motion for Reconsideration which was also denied, and at the same time, the trial court dismissed the case a second time. We appealed, arguing that the trial court erred in denying the Motion for Service by Publication and in dismissing the complaint sua sponte. The Court of Appeals disagreed with the trial court and found that we had exercised reasonable diligence in getting the owner served and that, although not required, it was clear that the owner was concealing herself from being served. For these reasons, the Court of Appeals ultimately concluded that Service by Publication should have been granted and held that the trial court had abused its authority to dismiss the case.

In its analysis, the Georgia Court of Appeals noted that “[i]t is unclear what additional ‘channels of information’ the trial court believed [the Association] should have pursued, or what relevant information those channels might have provided. [The Association] did locate Clark’s residence. [The Association] attempted service at that residence multiple times, but the defendant, who knew service of the lawsuit was being attempted, evaded the process server by remaining behind a locked door. Whether or not this constituted “concealment” is beside the point, as the defendant had a duty to accept and submit to the service.”

Brandon D. Wagner is an associate in the Alpharetta office of Lueder, Larkin & Hunter where his practice focuses on litigation and collections.  Brandon can be reached at bwagner@luederlaw.com.