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Stokes & Clinton PC v. Noble Sys. Corp.

In this breach of contract action, the trial court erred in determining that the defendant waived the defense of insufficient service by failing to file a responsive pleading or motion prior to entry of default, as the plaintiff appropriately raised the issue via a motion to set aside the judgment pursuant to OCGA § 9-11-60 d.

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Stokes & Clinton, P.C. “S&C”, appeals from the trial court’s refusal to set aside a default judgment pursuant to OCGA § 9-11-60 d for various reasons, including that Noble Systems Corp. failed to properly serve S&C. The trial court determined that S&C waived the defense of insufficient service by failing to file a responsive pleading or motion prior to entry of default. We granted S&C’s application for discretionary appeal, and for the reasons that follow, we vacate the judgment and remand the case.

The record shows that Noble filed a breach of contract claim against S&C on January 28, 2011. Noble later filed the affidavit of the private process server, Roger Snow, in which he averred that he had served the complaint on Steven Jacobs, the registered agent of S&C, on February 8, 2011, at 12:55 p.m. at the office of S&C. After S&C failed to answer, Noble filed a certificate of default on April 12, 2011, and the trial court issued an order and final judgment in favor of Noble on April 27, 2011. Prior to entry of the final judgment, on April 19, 2011, S&C filed the affidavit of Jacobs in which he stated that Snow’s affidavit was false, Jacobs was never served with the complaint, and video surveillance of the S&C lobby on the day in question showed that a process server left documents on the receptionist desk without serving Jacobs or anyone else. S&C did not file any other documents with the trial court prior to the trial court’s April 27, 2011 final judgment.

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