Ballenger v. Floyd, 639 S.E.2d 554 (Ga. Ct. App. 2006). · Go Syfert
Ballenger v. Floyd, 639 S.E.2d 554 (Ga. Ct. App. 2006). Cases Citing This Book View Copy Cite
“answer asserting insufficiency of service put on notice and she was then required to exercise the greatest possible diligence to ensure proper and timely service.”
22 citation events (22 in the last 25 years) across 1 distinct court.
Strongest positive: Indya McFadden v. Sandra C. Brigham (gactapp, 2021-02-16)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 10 distinct citers.
discussed Cited as authority (verbatim quote) Indya McFadden v. Sandra C. Brigham (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2021 · quote attribution · 1 verbatim quote · confidence high
raised the defense of insufficient service in his answer and was on notice that service had not been perfected.
examined Cited as authority (verbatim quote) Jones v. Lopez-Herrera (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2011 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
answer asserting insufficiency of service put on notice and she was then required to exercise the greatest possible diligence to ensure proper and timely service.
discussed Cited as authority (rule) Inyang Peter Oduok v. Wedean Properties, Inc.
Ga. Ct. App. · 2013 · confidence medium
Those findings will not be disturbed on appellate review when supported by any evidence.4 Oduok’s complaint was filed on May 8, 2009, and a copy of the complaint and summons was served on June 4, 2009 upon “Barbara Hamilton[,] the authorized agent 3 (Citations and punctuation omitted.) West v. Veterans Administration, 182 Ga. App. 767, 768 (1) ( 357 SE2d 121 ) (1987). 4 (Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006). 5 for Wedean Properties5,” and upon “Barbara Hamilton[,] the authorized agent for Kent Wedean.” (i) With respect …
cited Cited as authority (rule) Oduok v. Wedean Properties, Inc.
Ga. Ct. App. · 2013 · confidence medium
(Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006).
cited Cited as authority (rule) Milton v. Goins
Ga. Ct. App. · 2011 · confidence medium
(Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006).
discussed Cited as authority (rule) Calhoun v. Government Employees Insurance Co.
Ga. Ct. App. · 2009 · confidence medium
Co. v. Manders, 292 Ga. App. 793, 794 (1) ( 665 SE2d 886 ) (2008); Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006). 4 OCGA § 9-11-4 (e). 5 See OCGA § 9-3-33 (statute of limitation for personal injury action is two years). 6 269 Ga. 611 ( 502 SE2d 226 ) (1998). 7 Id. at 611-612 . 8 Id. at 612 . 9 See id., citing Bohannon v. Futrell, 189 Ga. App. 340 ( 375 SE2d 637 ) (1988), aff'd, Bohannon v. J.C.
discussed Cited "see" Tracy Shuler v. Geraldine Akpan (2×)
Ga. Ct. App. · 2022 · signal: see · confidence high
The two sheriff’s entry-of-service forms detail the failed attempts to serve Dawn and Herbert, respectively, but neither 10 Bible v. Bible, 259 Ga. 418, 419 ( 383 SE2d 108 ) (1989); see Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006) (explaining that our Supreme Court rejected the “substantial compliance rule” in matters involving service of process and that service must be made as provided by the Code section). 11 Bible, 259 Ga. at 419 . 8 form mentions Tracy; and the record contains no additional entry-of-service form concerning her.
discussed Cited "see" Marion Hutcheson v. Elizabeth Brennan Antiques (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at 6 See OCGA § 9-11-4 (f) (1) (A). 8 his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case . . . .7 …
discussed Cited "see" Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc. (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
Bible v. Bible, 259 Ga. 418, 419 ( 383 SE2d 108 ) (1989); see Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006); Fudge v Balkissoon, 199 Ga. App. 755, 755 ( 406 SE2d 116 ) (1991).
discussed Cited "see" State Farm Mutual Automobile Insurance Co. v. Manders (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
See Ballenger v. Floyd, 282 Ga. App. 574, 575 ( 639 SE2d 554 ) (2006); Franchell v. Clark, 241 Ga. App. 128, 131 (3) ( 524 SE2d 512 ) (1999).
BALLENGER Et Al.
v.
FLOYD
A06A1763.
Court of Appeals of Georgia.
Nov 28, 2006.
639 S.E.2d 554
Martenson, Hasbrouck & Simon, Peter V. Hasbrouck, for appellants., Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Jeffrey P. Raasch, for appellee.
Andrews, Barnes, Bernes.
Cited by 10 opinions  |  Published
Pinpoint authority: bottom 50%
ANDREWS, Presiding Judge.

Plaintiffs below appeal from the trial court’s grant of Troy Christopher Floyd’s motion to dismiss due to insufficient service of process. We find no error and affirm.

This case arose after an automobile accident in which plaintiffs’ (collectively “Ballenger’s”) decedent was killed. Ballenger sued the driver of the other vehicle, the driver’s father, Hooters’ Restaurant, and Troy Floyd, a passenger in the other vehicle.

Instead of serving Floyd personally with the summons and complaint, the process server attempted to serve him pursuant to OCGA § 9-11-4 (e) (7), which provides that the defendant may be served “by leaving copies [of the summons and complaint] at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” The record shows that an entry of service for Troy Floyd was made as being given to “Linda Floyd — Mother” at “197 King’s Gin Road.”

When reviewing a claim of insufficient service of process, we first note that a return of service is a prima facie showing of personal service. Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). But, although a return of service imports verity and itself is prima facie evidence concerning the facts recited therein, it is not conclusive and may be traversed and set aside by proof that such facts are untrue. Kim v. Platt, 229 Ga. App. 92, 93 (493 SE2d 249) (1997). This proof must be “not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) NUCOR Corp. v. Meyers, 211 Ga. App. 787, 788 (440 SE2d 531) (1994).

Applying these standards, the record shows that Floyd submitted an affidavit stating that he gave Ballenger his correct address, 130 Chandler Road, at his deposition, and he continued to reside at that address. Floyd also stated that he never gave his mother permission to accept service on his behalf. In addition, Floyd submitted his mother’s affidavit stating that he did not live at her address and had not authorized her to receive service of any legal documents.

[*575] The trial court found that Ballenger served Floyd at his mother’s address on January 17,2003, despite having known of Floyd’s correct address at least as of May 22, 2002. The court also pointed out that Ballenger had not introduced any evidence that Floyd lived at his mother’s house and not at the 130 Chandler Road address. The court concluded, therefore, that plaintiffs could not show that Ballenger exercised the greatest possible diligence in attempting to serve Floyd.

On appeal, “absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. . . . Those findings will not be disturbed on appellate review when supported by any evidence.” (Citation omitted.) Campbell v. Coats, 254 Ga. App. 57, 58-59 (561 SE2d 195) (2002).

In Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989), the Supreme Court rejected the “substantial compliance rule” in matters involving service of process. The Court held that service must be made as provided by the Code section. Id. at 419. Moreover, the Court also held that there was no authority to dispense with the clear requirements of the Code section “merely because the defendant may otherwise obtain knowledge of the filing of the action.” Id.

Contrary to Ballenger’s contention on appeal, the record does not support her position that Floyd’s mother’s address was sometimes Floyd’s place of abode or dwelling place. Ballenger points to Floyd’s testimony at his deposition that he would sometimes stay at his mother’s house and sometimes stay at his father’s. But, this statement was in response to questions about where he was staying at the time of the accident, December 1999, three years previously. As previously stated, when asked his current address at this same deposition, Floyd responded that he lived at 130 Chandler Road. Therefore, service on Floyd’s mother at a different address was insufficient. See Terrell v. Porter, 189 Ga. App. 778, 779 (377 SE2d 540) (1989) (“Acopy of the summons and complaint left with a relative at a place other than appellee’s residence or usual place of abode is not sufficient service.”) (citation omitted).

Moreover, Floyd raised the defense of insufficient service in his answer and Ballenger was on notice that service had not been perfected. Nevertheless, Ballenger made no further efforts to perfect service. “Once the plaintiff becomes aware of a problem with service, . . . his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.” (Citation omitted.) Harris v. Johns, 274 Ga. App. 553, 554 (618 SE2d 1) (2005). Floyd’s answer asserting insufficiency of service put Ballenger on notice and she was then required to exercise the greatest possible diligence to ensure proper and timely service. Pryor v. Douglas [*576] Shopper The Coffee County News, 236 Ga. App. 854, 857 (514 SE2d 59) (1999). Ballenger did not do so.

Decided November 28, 2006. Martenson, Hasbrouck & Simon, Peter V. Hasbrouck, for appellants. Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Jeffrey P. Raasch, for appellee.

Judgment affirmed.

Barnes and Bernes, JJ., concur.