How to Communicate with Courts, Parties in Litigation and Others

There are times when formal “legal” communication is necessary. This post addresses several instances regarding how that can be done. It is not meant to be all inclusive and, in many cases, specific communication rules apply.

Beginning a lawsuit:

When you begin a lawsuit, a summons must be served on the Defendant(s). Generally, Rule 4 of the Federal Rules of Civil Procedure and Rule 4 of the Georgia Rules of Civil Procedure apply. A summons must be issued and must include the name of the court and parties. It must be directed to the defendant, state the time within which the deefndant must respond, must state that failure to respond will ressult in default, be signed by the clerk and bear the Court’s seal. The plaintiff is responsible for having the summons and complaint served. Under the federal rules, it may be served by anyone 18 years or older who is not a party to the litigation. At the plaintiff’s request, it may be served by a United States Marshall or someone specially appointed by the court. Under the Georgia rules, service of a complaint is usually done by the sheriff of the county where the lawsuit was filed or the county where the defendant is found. However, the complaint and summons may also be served by the marshal or sheriff of the court or by such official’s deputy; any citizen of the United States specially appointed by the court for that purpose; a person who is not a party, not younger than 18 years of age, and has been appointed by the court to serve process or as a permanent process server;  or a certified process server as provided in Code Section 9-11-4.1. Formal service may be waived and, under Rule (d)(2), certain defendants have a duty to avoid unnecessary costs.

Personal service is accomplished against most individuals by serving the defendant personally, or by leaving copies at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Service on corporations is discussed below.

Service on a minor is accomplished by serving the minor and also serving minor’s father, mother, guardian, or duly appointed guardian ad litem unless the minor is married, in which case service shall not be made on the minor’s father, mother, or guardian.

If a probate court has imposed a guardianship or conservatorsip, the ward should be served with a copy to his or her guardian and, if there is no guardian appointed, then to his or her duly appointed guardian ad litem. Ideally the guardian would notify the conservator.

Generally, Georgia’s long-arm statute grants jurisdiction over nonresidents who take actions decribed in O.C.G.A. § 9-10-91. Section 9-10-94 provides that the individual or his executor or administrator, may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction. Special rules exist for nonresident motorists.  O.C.G.A. 40-12-1 appoints the Secretary of State as agent for service in actions against nonresident motorists. The method of service is addressed at section 40-12-2.

Other Court Service:

After a case begins, Rule 5 of the Federal Rules of Civil Procedure and Rule 5 of the Georgia Rules of Civil Procedure indicating how other documents must be served (delivered). Generally, the rule applies to all Orders, pleadings, discovery, written motions and written notices.

If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. If the person is unrepresented, then the person affected must be served. Service may be accomplished in any of the following ways: handing it to the person; leaving it: (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; mailing it to the person’s last known address—in which event service is complete upon mailing; leaving it with the court clerk if the person has no known address; sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means that the person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

If service is done using the court’s electronic filing system, then no certificate of service is required. Otherwise, a certificate of service is required stating that the document was sent to the other party (or parties), the date, address and manner in which it was sent.

Georgia’s Rule 5 permits electronic service under certain conditions. “Delivery of a copy” also means transmitting a copy via e-mail in portable document format (PDF) to the person to be served using all e-mail addresses provided pursuant to subsection (f) of this Code section and showing in the subject line of the e-mail message the words “STATUTORY ELECTRONIC SERVICE” in capital letters. Service by mail is complete upon mailing.  Proof of service may be made by certificate of an attorney or of his or her employee, by written admission, by affidavit, or by other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service. Rule 5(f) then provides:

Electronic service of pleadings.

(1) A person to be served may consent to being served with pleadings electronically by:

(A) Filing a notice of consent to electronic service and including the person to be served’s e-mail address or addresses in such pleading;  or

(B) Including the person to be served’s e-mail address or addresses in or below the signature block of the complaint or answer, as applicable to the person to be served.

(2) A person who is not an attorney may rescind his or her election to be served with pleadings electronically by filing and serving a notice of such rescission.

(3) If a person to be served agrees to electronic service of pleadings, such person to be served bears the responsibility of providing notice of any change in his or her email address or addresses.

(4) When an attorney files a pleading in a case via an electronic filing service provider, such attorney shall be deemed to have consented to be served electronically with future pleadings for such case at the primary email address on record with the electronic filing service provider.  An attorney may not rescind his or her election to be served with pleadings electronically in cases that were initiated using an electronic filing service provider.

(5) If electronic service of a pleading is made upon a person to be served, and such person certifies to the court under oath that he or she did not receive such pleading, it shall be presumed that such pleading was not received unless the serving party disputes the assertion of nonservice, in which case the court shall decide the issue of service of such pleading.

General Application of Civil Practice Act’s Rules:

O.C.G.A. § 9-11-81  makes the Civil Practice Act the default set of litigation rules except where specific rules conflict and are expressly prescribed by law. See for example Uniform Superior Court Rules (referencing CPA); Uniform Probate Court Rules; and Administrative Rules of Procedure.

Service on Executors, Administrators and Trustees:

Generally, the Civil Practice Act applies to actions against executors and administrators. See O.C.G.A. 53-7-13 and 53-11-1 (actions in probate court involving trusts). A trustee’s delivery of reports creates a two year limitations period for potential claims disclosed in the report. O.C.G.A. 53-12-307. Foreign individuals and entities acting as a fiduciary in Georgia must file with the Secretary of State and identity a person who may be served with process; otherwise the Secretary of State is their agent for service of process. See O.C.G.A. 53-12-320 (individuals) and O.C.G.A. 53-12-323 (entities).

Of note, O.C.G.A. § 53-6-2 provides that any person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted. Such executor shall not be allowed to set off any debt due the executor by the decedent or voluntarily paid by the executor out of the assets. If the executor dies, the executor’s personal representative shall be liable in the same manner and to the same extent as would the executor were the executor still living.

Commerical Transactions:

Typically, well written contracts include a provision stating how each party should be notified and at what address. However, Section 1-202 of the Uniform Commerical Code generally governs knowledge and notice in the absence of specific agreed uon terms. The Georgia counterpart, O.C.G.A. § 11-1-202 provides:

(a) Subject to subsection (f) of this Code section, a person has “notice” of a fact if the person:

(1) Has actual knowledge of it;

(2) Has received a notice or notification of it;  or

(3) From all the facts and circumstances known to the person at the time in question, has reason to know that it exists.

(b) “Knows” or “knowledge” means actual knowledge.

(c) “Discover,” “learn,” or words of similar import refer to knowledge rather than to reason to know.

(d) A person “notifies” or “gives” a notice or notification to another person by taking such steps as may be reasonably required to inform the other person in the ordinary course, whether or not the other person actually comes to know of it.

(e) Subject to subsection (f) of this Code section, a person “receives” a notice or notification when:

(1) It comes to that person’s attention;  or

(2) It is duly delivered in a form reasonable under the circumstances at the place of business through which the contract was made or at another location held out by that person as the place for receipt of such communications.

(f) Notice, knowledge, or a notice or notification received by an organization shall be effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction and, in any event, from the time it would have been brought to the individual’s attention if the organization had exercised due diligence.  An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines.  Due diligence does not require an individual acting for the organization to communicate information unless the communication is part of the individual’s regular duties or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.

Rules relating to secured transactions and the filing of financing statements range from O.C.G.A. 11-9-501 through 11-9-518. The specific rule regarding what constitues filing is at section 11-9-516.

The Commissioner of Insurance is an agent for service on insurance companies not authorized to at in Georgia. See O.C.G.A. § 33-5-52.

Deeds and Land:

Deeds are public records. Generally, the filing of a deed gives notice to everyone with an interest in the property. O.C.G.A. 44-2-2(b) provides: Deeds, mortgages, and liens of all kinds which are required by law to be recorded in the office of the clerk of superior court and which are against the interests of third parties who have acquired a transfer or lien binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record in the clerk’s office.

Any party, or his or her legal representative, to a settlement which will convey legal or equitable title to real estate or any interest therein or create any lien thereon by way of a deed to secure debt, mortgage, or other instrument may file an instrument to be designated a “notice of settlement” with the clerk of the superior court of the county in which the real estate is situated. See O.C.G.A. § 44-2-30.

In Wyndham Lakes Homeowners Ass’n v. Gray, 303 Ga. App. 45 (2010), the Court stated it is well settled in Georgia that when “a restrictive covenant is recorded, the purchaser is charged with legal notice of the covenant, even if it is not stated in his own deed.

In Hill v. Moye, 221 Ga. App. 411 (1996), the Court stated “[p]ursuant to O.C.G.A. § 44-14-161, when the holder of a security deed sells the secured property and the property does not bring the amount of the debt, the creditor may seek a deficiency judgment only if the superior court confirms the property sold fairly. O.C.G.A. § 44-14-161 (a), (b). See Guthrie v. Bank South, 195 Ga. App. 123, 125 (3) (393 S.E.2d 60) (1990). But no confirmation is valid against a debtor who is not given at least five days legal notice of the confirmation hearing by personal service on the debtor. O.C.G.A. § 44-14-161 (c); Vlass v. Security Pacific Nat. Bank, 263 Ga. 296 (1), 298 (430 S.E.2d 732) (1993); Henry v. Hiwassee Land Co., 246 Ga. 87, 88-89 (269 S.E.2d 2) (1980).”

Serving Corporations and Government Agencies:

Rule 4(e) provides, when a corporation must be served with process, it shall be made by delivering it as follows:

If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered 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 or foreign corporation upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. The plaintiff or the plaintiff’s attorney shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or registered agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that such corporation or foreign corporation has failed either to maintain a registered office or to appoint a registered agent in this state. Further, if it appears from such certification that there is a last known address of a known officer of such corporation or foreign corporation outside this state, the plaintiff shall, in addition to and after such service upon the Secretary of State, mail or cause to be mailed to the known officer at the address by registered or certified mail or statutory overnight delivery a copy of the summons and a copy of the complaint. Any such service by certification to the Secretary of State shall be answerable not more than 30 days from the date the Secretary of State receives such certification.

A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State. O.C.G.A. § 14-2-1501 (also listing activities which do not constitute doing business in Georgia).

O.C.G.A. § 14-2-504 states that a corporation’s registered agent is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the corporation. Although other legal means are not prohibited, if a corporation has no registered agent or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail or statutory overnight delivery, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:

Similar rules apply for LLCs, partnerships and unincorporated associations.

Rule 4(e)(5) provides service on a county, municipality, city, or town must be delivered to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city, or to an agent authorized by appointment to receive service of process. If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof. Tort actions against the State must be served as provided in O.C.G.A. 50-21-35 although an ante litem notice is likely a prerequite.

In disputes with State agencys, a party must exhaust all administrative remedies available within the agency before filing suit. O.C.G.A. § 50-13-19.

Registered Mail, Certified Mail and Statutory Overnight Delivery:

It is always best to have proof of delivery. One way to accomplish that is by sending notice by registered mail, but O.C.G.A. § 9-10-12 provides that whenever any law, statute, Code section, ordinance, rule, or regulation of this state or any officer, department, agency, municipality, or governmental subdivision thereof provides that a notice shall be given by “registered mail,” the notice may be given by “certified mail.”

Subsection (b) of O.C.G.A. § 9-10-12 provides whenever any law, statute, Code section, ordinance, rule, or regulation of this state or any officer, department, agency, municipality, or governmental subdivision thereof provides that a notice may be given by “statutory overnight delivery,” it shall be sufficient compliance if:

Service by Publication:

In some cases, an individual cannot be found. Rule 4(f) authroizes service by publicationi when the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action. In those cases, the Court can authorize service by publication.

O.C.G.A. 9-10-71 authorizes service by publication where any nonresident or person unknown claims or owns title to or an interest, present or contingent, in any real or personal property in this state and an action is brought to:

(1) To remove a cloud therefrom or quiet title thereto;
(2) To cancel or set aside deeds, mortgages, liens, or encumbrances thereon;
(3) To establish, enforce, or foreclose liens thereon;
(4) To enforce, by decree for specific performance, any contract in reference thereto;
(5) To order the partition thereof by division or sale;
(6) To make any decree or order in which the subject of the action is real or personal property in this state in which a nonresident or unknown person has or may have or claims an interest, actual or contingent, and in which the relief demanded consists wholly or in part in excluding him from an interest therein;
(7) Where a nonresident or person unknown has or may have or may claim a present, future, or contingent interest in any property in this state; or
(8) Where a nonresident or person unknown may have or claim any interest in any trust estate in this state and it becomes necessary or proper or advantageous to order a sale of the whole or any part of the property.

Where service is by publication, it must be in the appropriate Legal Organ (legal newspaper). The requirements for a Official Organ of publication in Georgia are at section 9-13-142. See also Catoosa County v. Rome News Media, LLC, 349 Ga. App. 123 (2019).

Probate and Other Special Courts:

Rule 4(k) provides the methods of service provided in this Code section may be used as alternative methods of service in proceedings in the probate courts and in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section. The rules for service when an estate is probated are at O.C.G.A. § 53-5-22. The rules for service when an estate is administered are at O.C.G.A. § 53-6-22. Service rules for adult guardianships are at O.C.G.A. § 29-4-11(c) and at O.C.G.A. § 29-5-11(c) for adult conservatorships. Notice must be given pursuant to section 29-4-51 upon the death of a guardian and pursuant to section 29-4-61 when appointing a successor guardian. Similarly, notice must be given puruant to 29-5-91 upon the death of a conservator and pursuant to section 29-5-101 when appointing a successor conservator.

Medicaid:

If you receive Supplemental Security Income or Medicaid and your financial condition changes, you must report those changes within 10 days.

Medicaid agencies must accept an application from the applicant, an adult who is in the applicant’s household, … or family, … an authorized representative, or if the applicant is a minor or incapacitated, someone acting responsibly for the applicant…. 42 C.F.R. § 435.907(a). See also Georgia ABD Manual 2050. Applications must be acceted via the internet, by telephone, by mail, in person and through other commonly available electronic means. 42 C.F.R. § 435.907.

The Department must send each applicant a written notice of decision regarding each application. The notice must include a finding of eligibility or ineligibility. 42 C.F.R. § 435.913(b)(1). The notice must contain a statement of what action the Department intends to take. If eligibility is denied, the notice must state the reasons for the action, the specific regulation supporting the action, and an explanation of the applicant’s right to request an evidentiary hearing. 42 C.F.R. § 435.912. A notice of adverse action must be timely. 42 C.F.R. § 435.919. Notice must be given at least 10 days prior to the date of action. 42 C.F.R. § 431.211. Fair hearings must be available pursuant to 42 C.F.R. § 431.220(a). 42 C.F.R. § 431.221(d) requires the  Department to give applicant/recipient’s a reasonable time to appeal, but no longer than 90 days. All parties must be afforded an opportunity for hearing after reasonable notice is served. O.C.G.A. § 50-13-13(a)(1); Ga. R. & Regs. § 616-1-2-09.

If someone has received medical assistance, O.C.G.A. 9-2-21 provides with respect to tort actions: the representative or attorney who has actual knowledge of the receipt of said benefits shall notify the Department of Community Health of the claim. Mailing and deposit in a United States post office or public mail box of said notice addressed to the Department of Community Health with adequate postage affixed is adequate legal notice of the claim. Notice as provided in this subsection shall not be a condition precedent to the filing of any action for tort. Initiating recovery action shall include any communication with a party who may be liable or someone financially responsible for that liability with regard to recovery of a claim including but not limited to the filing of an action in court.

Other Legal Notice:

In Johnson v. State, 297 Ga. App. 254 (2009), the Court stated OCGA § 40-5-60 provides that “[a]ll revocations and suspensions provided for in this chapter shall be effective on the day the driver receives actual knowledge or legal notice thereof, whichever occurs first.

Computation of time:

O.C.G.A. 1-3-1(d)(3) provides: Except as otherwise provided by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty. When the last day prescribed for such action falls on a public and legal holiday as set forth in Code Section 1-4-1, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Resources:

• Litigating Against Government Entities