AMERIBANK, NA v. Quattlebaum

469 S.E.2d 462 (1996)

220 Ga. App. 345

AMERIBANK, N.A. v. QUATTLEBAUM.

No. A95A1999.

Court of Appeals of Georgia.

February 27, 1996.

J. Keith Berry, Jr., Savannah, for appellant.

McCorkle, Pedigo & Johnson, David H. Johnson, Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, Savannah, for appellee.

BEASLEY, Chief Judge.

Ameribank makes two arguments for reversal, neither of which is supported by the facts or the law.

Robert Quattlebaum, Jr., a physician, was a guarantor for his son, Robert Quattlebaum III, who, together with Isaacson, had given a security deed to Ameribank. Ameribank exercised *463 its power of sale and applied to the superior court to confirm the sale under OCGA § 44-14-161. The confirmation hearing was eventually set for September 12, 1994, and a return of service was filed showing Quattlebaum, Jr., had been served with notice of the hearing and confirmation application on August 19.[1]

The court initially confirmed the sale as to all parties but later set aside that portion of the confirmation order that found Quattlebaum, Jr., had been properly served, ruling that he had not been personally served with notice of the September 12 hearing on Ameribank's confirmation application. It was from this set-aside order that Ameribank sought, and was granted, interlocutory appeal.

1. Ameribank first contends the evidence was insufficient to allow the court to conclude that Quattlebaum, Jr., had not been personally served. Quattlebaum's own affidavit stated he had not been served and had found the papers on his office desk. His receptionist's affidavit stated the deputy had handed her the papers and she put them on Quattlebaum's desk. Two other office staff averred the deputy came in, told the receptionist he needed to give Quattlebaum some papers, waited a few minutes, gave the papers to the receptionist, and left.

The deputy who completed the return of service was deposed. His recollection of service was not strong. Although he stated he personally served Quattlebaum, he could remember no details of the event such as where in the office service took place, exactly how he met Quattlebaum, or who else he talked to. His statements about his routine in serving physicians revealed that he often left papers with office staff and that his superior had misgivings about such service procedures. His first answer to the question of whether he had "any independent recollection of handing Dr. Quattlebaum those documents" was: "Not personally, no." After his deposition, the deputy corrected a portion of his testimony and stated that when he had told a paralegal investigating the service that he had personally served Quattlebaum, he had confused Quattlebaum with another physician.

The court's order makes it clear that the court found the testimony of Quattlebaum and the other affiants more credible than the "equivocal" testimony of the deputy, and the evidence authorized the court's finding of no personal service. See Hudson v. Williams, 188 Ga.App. 726, 727, 374 S.E.2d 220 (1988).

2. Ameribank also contends personal service of notice of the hearing is not required, only actual notice, which the court found Quattlebaum had. Ameribank did not raise the issue in its brief below, contending only that the deputy had personally served Quattlebaum. The court's order does address the matter and concludes personal service is necessary.

The court was correct. OCGA § 44-14-161(c) requires "that the debtor be personally served with notice of the hearing on the creditor's application at least five days prior thereto. [Cit.]" Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 298(1), 430 S.E.2d 732 (1993). The fact that Quattlebaum had actual notice of the hearing does not change the requirement for valid personal service. Phelan v. Wells Fargo Credit Corp., 207 Ga. App. 54, 55, 427 S.E.2d 46 (1993); see also Henry v. Hiwassee Land Co., 246 Ga. 87, 88, 269 S.E.2d 2 (1980).

Ameribank argues that Henry, upon which Phelan relied for its statement about notice, and which Vlass cited in support of its statement that personal service is required, was implicitly overruled by Vlass, and there is then no requirement for personal service of confirmation documents. The argument completely overlooks the fact that Vlass itself repeated the statement that personal service is required. It is true that Henry did note that methods of personal service could be found in the Civil Practice Act, OCGA § 9-11-4(d). Vlass avoided the time requirements of OCGA § 9-11-4 by distinguishing a confirmation application under OCGA § 44-14-161 from a "complaint," declaring the confirmation *464 application to be other than a "civil action," and declaring the confirmation application to be outside the coverage of the CPA. Vlass, supra at 296-297(1), 298(2), 430 S.E.2d 732. The requirement of personal service is clearly stated in Vlass and there is no suggestion we should not continue to look to the principles embodied in OCGA § 9-11-4(d) for an understanding of what personal service means.

The trial court was justified in finding Quattlebaum, Jr., was not personally served, and it correctly concluded that such is required by the law.

Judgment affirmed.

POPE, P.J., and RUFFIN, J., concur.

[1] The two borrowers, Quattlebaum III and Isaacson, were served by mail to their attorneys, which attorneys had earlier acknowledged service of the confirmation application and notice of the hearing originally scheduled for June 27.