THIRD DIVISION

DOYLE, P. J.,

REESE and BROWN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 28, 2021

In the Court of Appeals of Georgia

A21A0406. SMITH v. SANDERS.

REESE, Judge.

Mark Smith appealsfrom an order of the State Court of DeKalb County, which

denied his motion for entry of default as to liability in Smith’s personal injury action

against Stephanie Sanders. Smith argues that the trial court erred in finding that he

failed to perfect service under Georgia’s Nonresident Motorist Act (“NRMA”),1

that

he failed to file a certification of default under Uniform Superior Court Rule

(“USCR”) 15, and that he failed to file an affidavit that Sanders was not on active

military duty under the Servicemembers Civil Relief Act.

2 For the reasons set forth

infra, we agree with Smith and vacate the trial court’s order.

1

 See OCGA § 40-12-1 et seq.

2

 See 50 USC § 3931.
On June 4, 2019, Smith filed a complaint against Sanders, alleging thatshe had

negligently caused a motor vehicle collision while driving in DeKalb County. On

June 10, 2019, Smith’s attorney filed an “affid[av]it” (the “June Affidavit”), in which

counsel stated that Sanders was not a resident of Georgia, that he had sent a copy of

the summons and complaint to Sanders at an address in Alabama, and that counsel

had complied with the requirements of OCGA § 40-12-2. The June Affidavit was

signed by the attorney, but it was not notarized. On June 11, 2019, the Secretary of

State’s acknowledgment of service, the summons, the complaint, and the June

Affidavit were filed in the trial court.

On August 8, 2019, Sanders filed in the trial court a “Notice of Defendant’s

Pleading Pursuant to OCGA § 9-11-55 (a) and Demand for Trial by Jury of Twelve”

(the “General Appearance”). Sanders served discovery requests on Smith the same

day. In September, Sanders filed a special appearance answer and affirmative

defenses to the complaint.

On October 29, 2019, Smith’s attorney executed a new affidavit (the “October

Affidavit”), that contained a notary’s attestation. The attorney again attested that he

had sent the complaint to Sanders at the Alabama address on June 5, 2019, and added:

2
When I signed the Affidavit that was sent to the Georgia Secretary of

State with the summons and complaint, I forgot to sign it in front of a

notary. However, I knew that the affidavit had to be filed with the clerk

of the court and that I could be subject to sanctions, ethical discipline,

contempt, and possible criminal action if I made a false statement to the

court. I intended the statement . . . to be under oath and in compliance

with Georgia law and my obligations as an officer of the court. 

In May 2020, Smith moved for entry of default judgment asto liability, arguing

that Sanders was in default because she had not filed an answer within 45 days of

June 10, 2019. In addition to the October Affidavit, Smith attached to his motion,

copies of the certified mail sent to Sanders that had been returned as “unclaimed[.]”

The trial court denied the motion, finding that service on Sanders was invalid

because the June Affidavit did not contain a notary signature. The trial court’s order

also stated that “[e]ven if service had been validly perfected, [USCR] 15 requiresthat

a plaintiff seeking a default judgment” make certain certifications in writing and

attach them to the motion for default judgment, including that the defendant was not

currently on active military duty. Finding that Smith had not done this, the trial court

denied the motion on this basis as well. We granted Smith’s application for

interlocutory appeal.

3
We review the trial court’s denial of a motion for default

judgment . . . for an abuse of discretion. An abuse of discretion occurs

where a ruling is unsupported by any evidence of record or where that

ruling misstates or misapplies the relevant law. Further, where it is

apparent that a trial court’s judgment rests on an erroneous legal theory,

we cannot affirm. However, to the extent this case presents a question

of law, the standard of review is de novo, during which we owe no

deference to the trial court’s ruling[.]3

With these guiding principles in mind, we turn now to Smith’s claims of error.

1. Smith argues that service on Sanders was valid, and that the trial court thus

erred in finding that she was not in default. We agree.

Pursuant to OCGA § 9-11-12 (a), a defendant mustserve her answer within 30

days after service of the summons and complaint. When an answer is not filed by the

deadline, the case is automatically considered to be in default.

4 A defendant may open

default as a matter of right within 15 days of the due date.5 After that time, a party

must seek leave of the trial court to open prejudgment default.6

3 Rivers v. Rivers, 348 Ga. App. 402, 404 (823 SE2d 84) (2019) (citations and

punctuation omitted).

4

 OCGA § 9-11-55 (a).

5

 Id.

6

 OCGA § 9-11-55 (b).

4
OCGA § 40-12-2 of the NRMA statesthatservice of process on a nonresident, 

shall be made by serving a copy of the complaint or other pleading with

summons attached thereto on the Secretary of State, his duly authorized

agent, or his successor in office, along with a copy of the affidavit to be

submitted to the court pursuant to this Code section. Such service shall

be sufficient service upon any such nonresident, provided that notice of

such service and a copy of the complaint and process are forthwith sent

by registered or certified mail or statutory overnight delivery by the

plaintiff to the defendant, if his address is known, and the defendant’s

return receipt and the plaintiff’s affidavit of compliance with this Code

section are appended to the summons or other process and filed with the

summons, complaint, and other papers in the case in the court wherein

the action is pending.

Thus, under § 40-12-2, service is effected by serving the Secretary of State with

a copy of the complaint and summons, along with a copy of the affidavit to be

submitted to the court. Smith’s failure to file a properly notarized affidavit only

5
affected the validity of his proof of service, not the service itself.7 Smith cured the

defect in proof of service in the October Affidavit.

8

We reject Sanders’s argument that, under OCGA § 9-11-4 (h), the time to

answer did not begin to run until the October Affidavit wasfiled and that her answer,

filed in September 2019, was thus timely. Section 9-11-4 (h) states in part, “If the

proof of service is not filed within five business days, the time for the party served

to answer the processshall not begin to run until such proof of service is filed.” Proof

7 See Tate v. Hughes, 255 Ga. App. 511, 512 (565 SE2d 853) (2002) (“Service

may be perfected by serving a copy summons and complaint (along with a certificate

of compliance) on the Secretary of State and immediately sending, by certified mail,

a notice of such service and a copy of the complaint and process to the nonresident

at her known address.”).

8

 See Reilly v. Crolk, 112 Ga. App. 334, 336 (145 SE2d 110) (1965).

6
includes “[t]he written admission or acknowledgment of service by the defendant[,]”

9

such as the filing of a general appearance.10

Because Sanders filed her General Appearance on August 8, 2019, her answer

was due no later than Monday, September 9, 2019.

11 She was thus outside the time

to open default as a matter of right by the time she filed her answer on September 26,

2019.

12

9

 OCGA § 9-11-4 (h) states:

The person serving the processshall make proof of such service with the

court in the county in which the action is pending within five business

days of the service date. If the proof of service is not filed within five

business days, the time for the party served to answer the process shall

not begin to run untilsuch proof of service isfiled. Proof of service shall

be as follows:

(1) If served by a sheriff or marshal, or such official’s deputy, the

affidavit or certificate of the sheriff, marshal, or deputy;

(2) If by any other proper person, such person’s affidavit;

(3) In case of publication, the certificate of the clerk of court

certifying to the publication and mailing; or

(4) The written admission or acknowledgment of service by the

defendant.

In the case of service otherwise than by publication, the certificate or

affidavit shall state the date, place, and manner of service. Failure to

make proof of service shall not affect the validity of the service.

10

 See Brown v. Fokes Props., 283 Ga. 231, 232 (2) (657 SE2d 820) (2008).

11

 See OCGA § 9-11-55 (a).

12

 See id.

7
2. Smith also argues that the trial court erred in finding that he did not comply

with USCR 15.

13

USCR 15 provides:

The party seeking entry of a default judgment in any action shall certify

to the court the following: the date and type of service effected; that

proof of service was filed with the court within 5 business days of the

service date, or, if not filed within 5 business days of the service date,

the date on which proof of service was filed; that no defensive pleading

has been filed by the defendant as shown by court records; and the

defendant’s military status, if required. This certificate shall be in

writing and must be attached to the proposed default judgment when

presented to the judge for signature.

Essentially, USCR 15 requires that the plaintiff’s attorney certify to the trial

court in writing the following two types of information: “the date and type of service

effected on [the defendant] and that the court recordsshow no defensive pleading had

been filed.”14 We have held that, “[b]ased on the apparent purpose of Rule 15 and the

fact that the same information required in the Rule 15 certificate can be found in the

13

“The Uniform Rules for the superior courts are applicable in state courts

unless specifically stated otherwise by the Uniform State Court Rules.” Moody v.

State, 256 Ga. App. 65, 67, n. 5 (567 SE2d 709) (2002).

14 Williams v. Contemporary Svcs. Corp., 325 Ga. App. 299, 301 (750 SE2d

460) (2013).

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record, . . . the failure to file a Rule 15 certificate is not a nonamendable defect in the

record[.]”

15

Here, the date and type of service effected on Sanders and the fact that no

timely defensive pleading had been filed were apparent from the record. Thus,

Smith’s failure to comply with USCR 15 was an amendable defect.

The trial court further erred by finding that Smith’s failure to include an

affidavit relating to the status of Sanders’s military service violated USCR 15 and 50

USC § 3931. Because Sanders had made a General Appearance, § 3931 did not

apply.

16

Accordingly, we vacate the trial court’s order and remand for further

proceedings.

Judgment vacated and case remanded. Doyle, P. J., and Brown, J., concur.

15

 Id.

16 See 50 USC § 3931 (a) (“This section applies to any civil action or

proceeding, including any child custody proceeding, in which the defendant does not

make an appearance.”).

9