Judgment denied where creditor attempted to serve complaint on semi-conscious nursing home resident

In Space Coast Credit Union v. Groce, 2016 Ga. App. LEXIS 252 (May 2, 2016), a lawsuit was filed to reinstate a first priority deed to secure debt. The creditor, Space Coast Credit Union, argued that its lien against property owned by a nursing home resident, Robert Steve Groce, was still valid because Groce’s debt was not paid in full. However, a lawsuit cannot begin until the Defendant has been served, or officially notified that he or she has been sued.

Space Coast hired a private process server who went to Mr. Groce’s last known home address. The process server discovered that Groce no longer lived at that address, so it looked elsewhere to find him. About a week later, the process server located Mr. Groce at a nearby nursing home. Mr. Groce was sleeping in his bed, in and out of consciousness and was unable to take the papers. The process server left them on a table next to the bed.

Space Coast waited thirty days. When Mr. Groce failed to answer the lawsuit, it moved for summary judgment (a way to win a lawsuit when facts are not in dispute). The Court heard testimony from the process server, who described Mr. Groce’s semi-counscious condition. The Court found that Mr. Groce was incapable of accepting service, and that leaving papers at his bedside was insufficient. There are safeguards associated with procedural rules relating to service of process – personal service means something more than merely leaving papers in the vicinity of an unaware defendant.

Space Coast objected, but to no avail. It argued that the Court’s ruling would require it to open a guardianship case to have someone appointed to accept service of process. The Court disagreed. A process server encountering an incapacitated defendant might attempt to rouse the defendant, or simply return another time. Alternatively, the process server might leave papers at the defendant’s dwelling house or usual place of abode with someone of suitable age and discretion then residing therein. However, if those alternatives proved to be insufficient, then the creditor’s complaint is with the legislature, not the Courts. The General Assembly is vested with authority to amend the statute, while the Courts simply apply it.