Carl Aikens filed a complaint against Brent Scarbrough & Company “Scarbrough Co.”, seeking to recover damages under a respondeat superior theory for injuries Aikens sustained when he fell down a manhole while working at a job site. Scarbrough Co. did not file an answer, and the trial court entered a default judgment followed by a final judgment against it in the amount of $4,147,442.24. Scarbrough Co. filed a motion to set aside the judgments, asserting, inter alia, that service had not been properly perfected. The trial court granted the motion but directed Scarbrough Co. to acknowledge service of Aikens’s complaint. The court also granted a certificate of immediate review, but we denied Aikens’s application for interlocutory appeal. Scarbrough Co. then moved for summary judgment, and the trial court granted its motion. On appeal, Aikens asserts that the trial court erred in setting aside the default judgment. He does not contest the merits of the grant of summary judgment, but contends that the trial court erred in reaching that motion. Accordingly, the primary thrust of Aikens’s appeal is that service was properly perfected on Scarbrough Co. Because there is evidence to support the trial court’s findings of fact, we affirm the order setting aside the judgments. In its order, the trial court made the following findings of fact: On March 8, 2005, Scarbrough Co.’s registered agent for service of process was Brent Scarbrough. On that day, a private process server attempted to serve Scarbrough Co. at its place of business, but its registered agent was not present. The process server alleged that he served the receptionist. On that day, Carol Chambers was Scarbrough Co.’s receptionist. The return of service identifies Chambers as receiving the complaint. Chambers, however, does not recall receiving the complaint from the process server. The trial court determined that 1 Chambers was not the registered agent for service of process; 2 Chambers did not otherwise have authority to accept service on behalf of Scarbrough Co.; 3 Chambers was not appointed by an authorized agent to accept service of process; and 4 Chambers was not a proper agent for service of process because she did not have a supervisory or managerial position that would have allowed service to be perfected upon Scarbrough Co. through her. Based on the findings, the court held that service was not properly perfected on Scarbrough Co., so that the court did not have personal jurisdiction when it entered the default judgment or the final judgment. The court accordingly granted the motion to set aside the judgments against the company.
Aikens asserts that we owe no deference to the trial court’s ruling. That is not correct. A trial court’s finding of insufficient service of process will be upheld on appeal absent a showing of an abuse of discretion.1 The trial court resolves factual disputes regarding service, and we will uphold the court’s findings if there is any evidence to support them.2 “When the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the ‘any evidence’ rule, and absent an abuse of discretion, we will not reverse a trial court’s . . . judgment.”3 The non-deferential standard of review to which Aikens refers generally has been applied to a trial court’s decision concerning whether service was properly effected upon a nonresident defendant pursuant to the Georgia Long Arm Statute, OCGA § 9-10-91, and only when the defendant’s motion to dismiss is considered on the basis of written submissions alone.4 As this case does not concern a nonresident defendant, we will apply the “any evidence” rule.
