Guthrie v. Wickes
| Decision Date | 10 February 2009 |
| Docket Number | No. A08A1963.,A08A1963. |
| Parties | GUTHRIE v. WICKES et al. |
| Court | Georgia Court of Appeals |
James W. Martin, Moskowitz & Martin, for Appellant.
John Gilbert Nelson, Atlanta, for Appellee.
Jean Guthrie sued Donna Wickes, individually and d/b/a Global IT Associates, for unpaid wages, and Wickes later suffered the entry of default judgment against her. This Court granted Guthrie's application for interlocutory appeal from the trial court's order denying Guthrie's motion for reconsideration of its order granting Wickes' second motion to set aside the default judgment. Guthrie appeals, arguing that the trial court erred in denying her motion for reconsideration because (i) the trial court lacked subject matter jurisdiction to consider Wickes' second motion to set aside default judgment because her appeal from the trial court's denial of her first such motion was then the subject of discretionary review, (ii) consideration of the issues raised in Wickes' second motion to set aside default judgment was barred by the doctrine of res judicata, and (iii) the trial court's order granting Wickes' second motion to set aside default judgment violated the law of the case rule. Finding that the pendency of Wickes' application for discretionary review of the trial court's denial of her first motion to set aside default judgment acted as a supersedeas depriving the trial court of subject matter jurisdiction to consider Wickes' second such motion and that the doctrines of res judicata and the law of the case barred consideration thereof, we reverse.
The facts are undisputed, and the issue before us is whether the trial court's order granting Wickes' second motion to set aside the default judgment was null and void for lack of subject matter jurisdiction. State of Ga. v. Free At Last Bail Bonds, 285 Ga.App. 734, 647 S.E.2d 402 (2007).
The record shows that Guthrie brought her suit against Wickes for unpaid wages on January 25, 2006. When her efforts to serve Wickes failed, Guthrie filed a motion for service by publication, which the trial court granted on June 8, 2006. Wickes thereafter failed to file an answer to Guthrie's complaint, and, on August 30, 2006, the trial court entered an order of default judgment against Wickes. On October 4, 2006, following a bench trial on damages, the trial court entered final judgment for Guthrie and against Wickes in the amount $23,725 and attorney fees and expenses of litigation of $3,407.71. On March 14, 2007, Wickes filed a motion to set aside the default judgment, contending that service by publication was insufficient to give the trial court personal jurisdiction over her because Guthrie presented no evidence that she knew about the lawsuit and had attempted to evade service. On May 7, 2007, the trial court denied the same.
Three weeks later, Wickes filed a second motion to set aside the default judgment, again asserting lack of personal jurisdiction. She alleged the same grounds averred in her first motion to set aside the default judgment, but supported the same for the first time by her own affidavit purporting to show that she did not know about the lawsuit or attempt to evade service. Wickes also argued in her second motion that service by publication was not authorized because (i) Guthrie failed to present an affidavit or verified complaint to show she had a valid claim under OCGA § 9-11-4(f)(1)(A), and (ii) Guthrie failed to prove she exercised due diligence in attempting to serve Wickes.
On June 6, 2007, Wickes filed an application for discretionary review in this Court seeking review of the trial court's May 7, 2007 order denying her motion to set aside the default judgment. On June 26, 2007, this Court denied the application, and Wickes timely petitioned the Supreme Court of Georgia for certiorari. On September 20, 2007, the trial court granted Wickes' second motion to set aside default judgment on the basis that Guthrie had failed to show that Wickes had wilfully concealed herself to avoid service. On October 2, 2007, Guthrie moved for reconsideration thereof. Approximately one month later, the Supreme Court denied Wickes' petition for certiorari, and, on March 31, 2008, the trial court denied Guthrie's motion for reconsideration of its grant of the second motion to set aside default judgment. We granted Guthrie's application for interlocutory appeal from the same on May 2, 2008. The instant appeal followed.
1. Guthrie contends that the trial court erred in denying her motion for reconsideration because the trial court's grant of Wickes' second motion to set aside default judgment was void for lack of subject matter jurisdiction. Guthrie argues that the trial court lacked subject matter jurisdiction—this because Wickes' petition for certiorari before the Supreme Court from our denial of her application for discretionary review of her first motion to set aside default judgment was still pending when the trial court entered its order. We agree.
As a general rule, in civil actions other than injunctions, a trial court, upon the filing of a notice of appeal, loses jurisdiction to modify or enforce a judgment which is the subject of the appeal during the period of supersedeas. See generally OCGA § 5-6-46. On the other hand, matters which are independent of and distinct from the judgment on appeal remain within the jurisdiction of the trial court.
Davis v. Harpagon Co., 281 Ga. 250, 253(8), 637 S.E.2d 1 (2006); see Cohran v. Carlin, 249 Ga. 510, 512, 291 S.E.2d 538 (1982) () (citation omitted); see also In the Interest of A.R.B., 209 Ga.App. 324, 433 S.E.2d 411 (1993) ().
In this case, the question raised by the successive motions to set aside was whether the trial court erred in authorizing service by...
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