Stone Exch., Inc. v. Surface Tech. Corp., 605 S.E.2d 404 (Ga. Ct. App. 2004). · Go Syfert
Stone Exch., Inc. v. Surface Tech. Corp., 605 S.E.2d 404 (Ga. Ct. App. 2004). Cases Citing This Book View Copy Cite
“stone ex change”
38 citation events (38 in the last 25 years) across 4 distinct courts.
Strongest positive: Anthony Hill Grading, Inc. v. SBS Investments, LLC. (gactapp, 2009-05-08)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (quoted) Anthony Hill Grading, Inc. v. SBS Investments, LLC. (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2009 · quote attribution · 1 verbatim quote · confidence low
stone ex change
discussed Cited as authority (rule) Teddy B. Alger v. Atlanta Auto Restoration, LLC
Ga. Ct. App. · 2023 · confidence medium
First, in Stone Exchange, we reversed the trial court’s 8 order denying plaintiff’s motion to set aside default judgment because under OCGA § 9-11-4 (e) (1) (2002),4 “substituted service upon the Secretary of State is proper only after a plaintiff has attempted to serve the persons listed in the statute and for any reason that attempt is unsuccessful.” 269 Ga. App. at 772-773 (punctuation omitted; emphasis in original).
cited Cited as authority (rule) Sophia Williams v. Abebe Sandy Ventures, LLC
Ga. Ct. App. · 2023 · confidence medium
Corp., 269 Ga. App. 770, 773 (605 2 The statutory language pertinent in Daly’s Driving School has since been re- designated as OCGA § 9-11-4 (e) (1).
discussed Cited as authority (rule) Imc Construction Company, Inc. v. Niya Mitchell (2×)
Ga. Ct. App. · 2022 · confidence medium
Corp. of Ga., 269 Ga. App. 770, 772 ( 605 SE2d 404 ) (2004) (emphasis in original). 5 When a defendant in a lawsuit challenges the sufficiency of service, the defendant bears the burden of showing improper service.11 “If the defendant makes such a showing, the burden shifts back to the plaintiff to show that service was proper.”12 As a general rule, “a return of service is prima facie evidence of the facts recited therein, but it may be rebutted by proof that such facts are untrue.
cited Cited as authority (rule) Womack v. EVOL Nutrition Associates, Inc.
N.D.N.Y. · 2021 · confidence medium
Corp., 605 S.E.2d 404, 405 (Ga. Ct. App. 2004) (emphasis in original)).
cited Cited as authority (rule) Christopher M. Hunt, Sr. v. Nationstar Mortgage, LLC
11th Cir. · 2019 · confidence medium
Corp. of Ga., 605 S.E.2d 404, 405 (Ga. Ct. App. 2004).
discussed Cited as authority (rule) Jacques v. Murray
Ga. Ct. App. · 2008 · confidence medium
Miller and Ellington, JJ., concur. 1 The transcript of this hearing was not included in the record on appeal despite the fact that the trial court’s order directed that all transcripts be included. 2 Stone Exchange, Inc. v. Surface Technology Corp. of Ga., 269 Ga. App. 770, 771 ( 605 SE2d 404 ) (2004). 3 Migmar, Inc. v. Williams, 281 Ga. App. 870 ( 637 SE2d 471 ) (2006). 4 Lewis v. Carscallen, 274 Ga. App. 711, 714 (3) ( 618 SE2d 618 ) (2005). 5 Truitt v. Housing Auth. of the City of Augusta, 235 Ga. App. 92, 94 ( 507 SE2d 781 ) (1998). 6 Euler-Siac S.P.A.
cited Cited as authority (rule) B&B Quick Lube, Inc. v. G&K Services Co.
Ga. Ct. App. · 2007 · confidence medium
Stone Exchange v. Surface Technology Corp. of Ga., 269 Ga. App. 770, 771 ( 605 SE2d 404 ) (2004).
discussed Cited "see" GMAC Mortgage Corp. v. Bongiorno (2×)
Ga. Ct. App. · 2006 · signal: see · confidence high
See Stone Exchange, Inc. v. Surface Technology Corp. of Ga., 269 Ga. App. 770, 771-772 ( 605 SE2d 404 ) (2004); Beard v. Calvert Fire Ins.
discussed Cited "see, e.g." Utilicom Supply Associates, LLC. v. Terra Tech, Inc. (2×)
Ga. Ct. App. · 2021 · signal: compare · confidence medium
Compare Stone Exchange 14 v. Surface Technology Corp. of Ga., 269 Ga. App. 770, 773 ( 605 SE2d 404 ) (2004) (substituted service upon the Secretary of State under OCGA § 9-11-4 (e) (1) is not sufficient where plaintiff has actual knowledge of the corporation’s current correct address, because the language of that Code section first requires an attempt to personally serve the officers of the corporation).
Retrieving the full opinion text from the archive…
Stone Exchange, Inc.
v.
Surface Technology Corporation of Georgia
A04A1402.
Court of Appeals of Georgia.
Sep 29, 2004.
605 S.E.2d 404
Berger, Collier & Loewenthal, Gordon M. Berger, Glenn A. Loe-wenthal, for appellant., Schulten, Ward & Turner, Dean R. Fuchs, for appellee.
Ruffin, Smith, Andrews, Johnson, Blackburn, Eldridge, Barnes, Miller, Ellington, Phipps, Mikell, Adams.
Cited by 13 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 74%
Citer courts: Court of Appeals of Georgia (1)
Ruffin, Presiding Judge.

Stone Exchange, Inc. appeals the trial court’s denial of its motion to set aside a default judgment. For reasons that follow, we reverse. [1]

[*771] Absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a default judgment. [2] Here, the relevant facts are not in dispute. On May 22, 2003, Surface Technology filed a complaint against Stone Exchange, alleging, among other things, that Stone Exchange breached an asset purchase agreement. Shortly before filing the complaint, Surface Technology had corresponded with Stone Exchange’s president at Stone Exchange’s current correct address. Nevertheless, Surface Technology attempted to serve Stone Exchange through Stone Exchange’s registered agent, but was unsuccessful because the registered agent was no longer located at the address listed for the agent at the Secretary of State’s office. Surface Technology then obtained substituted service on Stone Exchange through the Secretary of State’s office pursuant to OCGA § 9-11-4 (e) (1).

On September 16, 2003, the trial court entered a default judgment against Stone Exchange for failure to file an answer or other responsive pleadings. On November 24, 2003, Stone Exchange moved to set aside the judgment, arguing that it had not been properly served.

Relying on our decision in Daly’s Driving School v. Scott, 3 the trial court denied Stone Exchange’s motion, finding that substituted service of process was properly made by Surface Technology pursuant to OCGA § 9-11-4 (e) (1). We granted Stone Exchange’s application for discretionary appeal.

On appeal, Stone Exchange argues that Daly’s is distinguishable because Surface Technology, unlike the plaintiff in Daly’s, had actual knowledge of Stone Exchange’s current address and should be required to attempt service at that location. We agree.

Pursuant to OCGA § 14-2-501, each corporation in Georgia must continuously maintain in this state a registered office and a registered agent. And “[a]s a condition of doing business in Georgia” corporations must comply with this statute, which is designed to make it simple for a plaintiff to achieve service on a domestic corporation. [4] Service on a corporation, however, is not restricted to the registered agent. Under OCGA § 9-11-4 (e) (1),

[*772] [s]ervice shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: (1) If the action is against a corporation ... to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation upon whom any process, notice, or demand may be served. [5]

Thus, pursuant to OCGA § 9-11-4, substituted service upon the Secretary of State is proper only after a plaintiff has attempted to serve the persons listed in the statute and “for any reason” that attempt is unsuccessful.

Here, Surface Technology had actual knowledge of Stone Exchange’s current address, had been corresponding with the corporation at that address, and has cited no “reason” that service could not be had at that address on the corporation’s president or one of the other persons listed in the statute. And because Surface Technology did not attempt such service, it was not authorized under the statute to resort to substituted service on the Secretary of State. To hold otherwise would violate the clear language of OCGA § 9-11-4 (e) (1).

Our opinion in Daly’s does not require a different result. In Daly’s, we addressed the difference between OCGA §§ 14-2-504 and 9-11-4 with respect to due diligence. Scott sued Daly’s Driving School and attempted to serve Daly’s at its registered office. When such service was unsuccessful because the address was incorrect, Scott served the Secretary of State pursuant to OCGA § 9-11-4 and later obtained a default judgment. Daly’s moved to set aside the judgment, arguing that Scott knew that the school was no longer doing business at its registered office and that it could have located the agent simply by calling the school. Scott argued, on the other hand, that he would have had to take the affirmative steps, i.e., exercise due diligence, to locate the agent, and that due diligence was not required under OCGA § 9-11-4.

The trial court denied the motion, and we affirmed. We noted that OCGA § 14-2-504 authorizes service on a corporation by registered or certified mail when the corporation has no registered agent or the registered agent cannot with reasonable diligence be served. Given the reasonable diligence requirement in this provision, we found that Scott would have been required to exercise due diligence had he sought service through OCGA § 14-2-504. Scott, however,[*773] availed himself of OCGA § 9-11-4, which does not require due diligence, and we specifically found that these two sections provide alternative service methods.

Decided September 29, 2004. Berger, Collier & Loewenthal, Gordon M. Berger, Glenn A. Loe-wenthal, for appellant. Schulten, Ward & Turner, Dean R. Fuchs, for appellee.

Like the plaintiff in Daly’s, Surface Technology served process through OCGA § 9-11-4 (e) (1). Unlike the situation in Daly’s, however, Surface Technology had actual knowledge of Stone Exchange’s current address and there was no “reason” for it to resort to substituted service on the Secretary of State without attempting service at that address. Under these facts, Surface Technology’s service on the Secretary of State violated the language of OCGA § 9-11-4 (e) (1). [6]

To the extent Daly’s suggests that, without exception, substituted service on the Secretary of State is permitted whenever a corporation fails to maintain a registered office or personal service cannot be affected there, we disapprove of that opinion. Although substituted service often may be appropriate when a corporation fails to comply with the registered agent requirements, we cannot find such service sufficient when the plaintiff has actual knowledge of the corporation’s current correct address and the location of corporate officers who may be properly served under OCGA § 9-11-4 (e) (1).

Judgment reversed.

Smith, C. J., Andrews, P. J., Johnson, P. J., Blackburn, P. J., Eldridge, Barnes, Miller, Ellington, Phipps, Mikell and Adams, JJ., concur.
1

Surface Technology Corporation of Georgia maintains that this appeal is frivolous and[*771] that we should impose a penalty against Stone Exchange. However, Surface Technology has not made a motion pursuant to Court of Appeals Rule 15 (b), and, given our holding in this case, Stone Exchange’s appeal obviously is not frivolous.

2

See Smith v. Wood, 174 Ga. App. 799 (1) (331 SE2d 636) (1985).

4

American Consolidated Svc. Corp. v. Nationwide Mut. Ins. Co., 156 Ga. App. 193, 195 (1) (273 SE2d 898) (1980).

5

(Emphasis supplied.)

6

We also note that substituted service under these facts appears to raise due process concerns. See Abba Gana v. Abba Gana, 251 Ga. 340, 343 (304 SE2d 909) (1983). However, we do not address such concerns since they were not raised below.