Focus Healthcare Med. Ctr. Inc. v. O'Neal

Focus Healthcare Medical Center, Inc. appeals from the trial court’s sua sponte dismissal with prejudice of its complaint suit on open account brought against Phillip O’Neal as barred by the statute of limitations. O’Neal was served notoriously at what the summons and return of service alleged was his notorious place of abode and was alleged to be in default, but has never made an appearance in any court. We reverse, because the trial court had no authority to assert an affirmative defense, which could be waived, on behalf of a party in order to dismiss with prejudice; the trial court may, after inquiry under USCR 15, dismiss without prejudice this complaint for lack of service/defective service if it is not shown that the place of service was the defendant’s notorious place of abode.

Neither the complaint, the account statement, nor the attorney’s certificate set forth that Phillip O’Neal lived at 2249 Casher Court, Decatur, DeKalb County, Georgia and that this was his residence, dwelling house, usual place of abode, or notorious place of abode in this county. Nor did it plead what his residence address was in the county when service was made. Only on the summons and the return of service had the plaintiff typed-in the defendant’s name and address as “Phillip O’Neal, 2249 Casher Ct., Decatur, Ga. 30032.” The marshal’s return of service had the name and address of the defendant typed in, but under service, Phillip O’Neal’s name was handwritten, along with the name Emma Norwood and descriptive facts regarding her appearance; the rest of the return was pre-printed, stating: