DILLARD, Judge.
Richard Lewis and Priscilla Lewis, individually and as parents of Richard L. Lewis III, sued the Hancock County School District and several of its employees, including George Cosby and James Robbins, in both their official and individual capacities, claiming that defendants' negligence caused the death of the Lewises' son. Following a defense motion, most of the defendants were dismissed on sovereign-immunity grounds. However, based on Cosby and Robbins's failure to file timely responsive pleadings, the trial court entered a default judgment against those two defendants in their individual capacities. Cosby and Robbins now appeal from the trial court's denial of their motion to set aside the default judgment, arguing that the judgment was a nullity because the court lacked both subject matter and personal jurisdiction, and alternatively, arguing that the court erred by not opening the default judgment on the grounds of excusable neglect and proper case. For the reasons set forth infra, we reverse the trial court's decision and remand the case for further proceedings consistent with this opinion.
The events underlying this appeal are unquestionably heart wrenching. In August 2006, Richard Lewis III, and a group of his fellow classmates from Hancock Central High School traveled to Atlanta to attend an ROTC competition. Cosby and Robbins, both of whom were employees of Hancock Central High School, accompanied the students as chaperones. Shortly after arriving at the group's hotel and assisting the students with checking into their rooms, Cosby, Robbins, and a few of the students allegedly left the hotel premises to get something to eat. And while Cosby and Robbins were away, Lewis and several other students decided to go swimming in the hotel's pool. Shortly after entering the swimming pool, Lewis appeared to be in great distress and began drowning. Lewis was quickly pulled from the swimming pool and emergency medical technicians were called immediately. Tragically, neither the EMTs nor the emergency-room physicians at the hospital where Lewis was transported were able to revive him.
Thereafter, Lewis's parents filed suit against the Hancock County School District and several of its employees but subsequently dismissed their lawsuit without prejudice. The Lewises then refiled their wrongful-death action against the same defendants, including Cosby and Robbins in both their official and individual capacities. And while the school district and the district superintendent filed timely answers to this complaint, Cosby and Robbins did not file their answers until well after the deadline for doing so, as a result of some confusion regarding whether they had been served.
All of the defendants, including Cosby and Robbins, thereafter filed a motion to dismiss the complaint, arguing, inter alia, that the Lewises' claims were barred by the doctrines of sovereign immunity and official immunity. Upon considering this motion, the trial court entered an order dismissing the claims against Cosby and Robbins in their official capacities but granting a default judgment against them in their personal capacities based on their failure to file timely answers.
Two days after the entry of the default judgment, Cosby and Robbins filed a motion to set aside the judgment entered against them in their individual capacities. In that
1. Cosby and Robbins (hereinafter "appellants") contend that the trial court erred in failing to vacate the default judgment. Specifically, appellants argue that they are entitled to official immunity as employees of the school district, and therefore, the trial court lacked the subject matter jurisdiction to enter a default.
At the outset, we note that, absent an abuse of discretion, "we will not reverse a trial court's refusal to set aside a default judgment."
In considering appellants' claim of entitlement to official immunity from this lawsuit, we begin by noting that our Supreme Court has held that "[t]he doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity."
In expounding upon this doctrine, we have held that "qualified immunity mandates that a public employee is not immune from suit when he performs ministerial acts negligently or performs ministerial or discretionary acts with malice or an intent to injure; rather, he or she is immune from suit only for the negligent performance of discretionary acts."
Notwithstanding the foregoing law, the trial court entered a default judgment against appellants in their individual capacities, finding that they were not entitled to the "defense" of official immunity. In so holding, the trial court erred. As noted supra, official immunity is not a mere defense but rather an entitlement not to be sued that must be addressed as a threshold matter before a lawsuit may proceed.
Accordingly, we reverse the trial court's order denying appellants' motion to set aside the default judgment and remand the case to the trial court for a threshold determination as to whether appellants' acts or omissions that allegedly led to Richard Lewis's death were ministerial or discretionary in nature. And while the Lewises argue on appeal that appellants' acts were indeed ministerial, we are unwilling to entertain this argument, given
2. Appellants also contend that the trial court erred in failing to set aside the default judgment based on the lack of personal jurisdiction. Specifically, appellants argue that there is no order appointing a permanent process server in this case, and therefore, the Lewises' use of such a process server constituted a failure to perfect service. And because resolution of this enumeration of error in appellants' favor would negate the need for this case to be remanded, we now address the issue and hold that the trial court did not err in finding that service upon appellants was perfected.
In considering appellants' contention that the Lewises failed to perfect service, we begin by noting that the question of "[w]hether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court."
And while it is undisputed that appellants were served with the summons and complaint in this matter, they nevertheless argue that service of process was deficient because the process server used by the Lewises had not been properly appointed by the Superior Court of Hancock County. Additionally, appellants argue that service was deficient because the process server filed sheriff's entries of service with the trial court instead of separate affidavits.
Given the 2003 court order appointing the permanent process server, the entry of service, and the fact that appellants do not dispute that they were actually served with the complaint, we find that there was some evidence to support the trial court's ruling that the process server was authorized to serve appellants with the complaint in this action.
Accordingly, the trial court did not err in finding that service of process was perfected in this matter.
3. In light of our holdings in Divisions 1 and 2, we need not address at this time appellants' remaining enumerations of error.
Judgment reversed and case remanded.
BARNES, P.J., and BLACKWELL, J., concur.