Kemron Envtl. Servs., Inc. v. Prospira Paincare, Inc.

• Citation: 362 Ga.App. 727,870 S.E.2d 53
• Decision Date: 22 February 2022
• Docket Number: A21A1781
• Parties: KEMRON ENVIRONMENTAL SERVICES, INC. v. PROSPIRA PAINCARE, INC.
• Court: Georgia Court of Appeals

362 Ga.App. 727

870 S.E.2d 53

KEMRON ENVIRONMENTAL SERVICES, INC.

v.PROSPIRA PAINCARE, INC.

A21A1781

Court of Appeals of Georgia.

February 22, 2022

Derek Stephen Littlefield, Kirk Martin McAlpin Jr., Atlanta, for Appellant.

James A. Cober, Richard Andrew Mitchell, Edward Patrick Cadagin, Atlanta, for Appellee.

Dillard, Presiding Judge.

Kemron Environmental Services, Inc. appeals from the trial court's grant of Prospira Paincare, Inc.’s motion to modify a default judgment, arguing the trial court erred because the motion was filed more than 90 days after the judgment was served on Prospira.¹ For the reasons set forth infra , we agree with Kemron and reverse.

Paul Coad formerly served as the director of information technology for Kemron. In May 2020, Kemron obtained a judgment against Coad for $820,526 based on his fraudulent purchase of equipment and services for his own benefit. Coad subsequently went to work for Prospira. Then, in August 2020, Kemron initiated this continuing garnishment action against Coad, naming Prospira as the garnishee. Upon being served, Prospira withheld $374.52 from Coad's wages, sent Kemron a check for that amount, and promptly fired Coad. But Prospira did not file a formal answer or otherwise respond to the continuing garnishment within 45 days; and as a result, Kemron sought a default judgment against Prospira.

In October 2020, Kemron obtained a default judgment against Prospira for $835,349. Then, on November 3, 2020, Kemron served Prospira with a copy of the default judgment. But Kemron did not file an affidavit of service of the default judgment with the trial court until December 1, 2020. Thereafter, on February 2, 2021, Kemron obtained a writ of fieri facias against Prospira and recorded it on the general execution docket.

On February 17, 2021, 107 days after Prospira was served with the default judgment and 78 days after Kemron filed the affidavit of service with the trial court, Prospira filed a motion to modify the default judgment and retract the fi. fa. In doing so, Prospira argued that (1) it was entitled to have the default judgment modified under OCGA § 18-4-24 (a) because it filed its motion within 90 days of Kemron filing its affidavit of service with the trial court; and (2) the maximum amount Prospira owed Kemron was $1,099.54—i.e. , 25 percent of Coad's gross earnings between the filing of the garnishment action and the termination of his employment with Prospira.² Kemron opposed Prospira's motion, arguing, inter alia , that it was not timely filed. Specifically, Kemron maintained that the 90-day period for filing the motion under OCGA § 18-4-24 (a) began running when Prospira was served on November 3, 2020, not when the affidavit of service was filed with the trial court on December 1, 2020.

Following a hearing, the trial court granted Prospira's motion, finding that it had been timely filed. The court agreed with Prospira that OCGA § 9-11-4 (h) governed when the 90-day tolling period began for a motion to modify a default judgment under OCGA § 18-4-24 (a), reasoning that because

the return of service was not made until more than five (5) business days after service upon the Garnishee, pursuant to OCGA § 9-11-4 (h), [Prospira's] ninety (90) days to file its Motion, pursuant to OCGA § 18-4-24 (a), did not begin counting until the return of service was filed with the Clerk, and not the actual date of service upon [Prospira].

The trial court thus modified the default judgment to $1,149.54—Coad's wages subject to garnishment plus the $50 fee to open default—and canceled the fi. fa. We then granted Kemron's application for a discretionary appeal, which is now before us.

Kemron argues that because Prospira's motion to modify the default judgment was filed 107 days after being served with the default judgment, it was untimely under OCGA § 18-4-24 (a) and should have been denied. Prospira, on the other hand, focuses on the portion of OCGA § 18-4-24 (a) providing that a plaintiff must serve a garnishee with a default judgment "as provided in Code Section 9-11-4," which sets forth various means of accomplishing service. OCGA § 9-11-4 (h) provides:

The person serving the process shall 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 until such proof of service is filed.³

And because Kemron did not file its affidavit of service with the trial court within five business days of accomplishing the service, Prospira contends the time for it to file a motion to modify the default judgment began to run when that affidavit was filed with the court on December 1, 2020, thus making its motion timely. For its part, Kemron acknowledges that OCGA § 18-4-24 (a) requires service using one of the mechanisms set forth in OCGA § 9-11-4, but it nevertheless maintains OCGA § 9-11-4 (h) ’s tolling period does not apply and cannot contravene the plain language of OCGA § 18-4-24 (a). We agree with Kemron.

In interpreting any statute, we necessarily begin our analysis with "familiar and binding canons of construction."⁴ And in considering the meaning of a statute, our charge is to "presume that the General Assembly meant what it said and said what it meant."⁵ So, we must afford the statutory text its plain and ordinary meaning,⁶ consider the text contextually,⁷ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"⁸ and seek to "avoid a construction that makes some language mere surplusage."⁹ Thus, when the language of a statute is plain and susceptible of only one natural and reasonable construction, "courts must construe the statute accordingly."¹⁰

Here, the relevant language of OCGA § 18-4-24 (a) is clear:

On a motion filed not later than 90 days from the date the garnishee was served with such default judgment , the garnishee may, upon payment of any costs paid by the plaintiff to the clerk of court for the initiation of the action, and service on the garnishee, have such default judgment modified so that the amount of such default judgment shall be reduced to an amount equal to $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant[.]¹¹

Put another way, Georgia law provides a defaulting garnishee with an opportunity to reduce the amount of its default within a specified 90-day time period, which begins tolling on the date the garnishee is served with the default judgment. But here, Prospira filed its motion to modify the default judgment under OCGA § 18-4-24 (a) more than 90 days after being served with the default judgment (i.e. , 107 days). As a result, it was not filed within the window of opportunity provided for by the statute.¹² End of story.

Or is it? Prospira concedes OCGA § 18-4-24 (a) explicitly provides that the 90-day grace period for filing a motion to modify a default judgment begins on "the date the garnishee was served with such default judgment." Even so, Prospira maintains this statutory language must be construed together with OCGA § 9-11-4 (the Civil Practice Act statute concerning "process"). And to be sure, OCGA § 18-4-24 (a) does provide that OCGA § 9-11-4 governs the manner of serving default judgments on garnishees. But Prospira's argument does not rest on any of the service provisions contained in OCGA § 9-11-4. Instead, Prospira points to OCGA § 9-11-4 (h), which concerns the "return" of service under the Civil Practice Act: "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 until such proof of service is filed." And this matters, according to Prospira, because the tolling period in OCGA § 9-11-4 (h) applies instead of the tolling provision contained in OCGA § 18-4-24 (a), and it filed a motion to modify the default judgment within 90 days of Kemron filing its proof of service for the default judgment with the trial court. We find this argument unavailing for several reasons.

To begin with, OCGA § 18-4-24 (a) unequivocally provides the 90-day period for filing a motion to modify a default judgment runs from the time a garnishee is served. Prospira attempts to circumvent this clear statutory directive and supplant the tolling provision contained in OCGA § 18-4-24 (a) with the tolling period provided for in OCGA § 9-11-4 (h), which says that "the time for the party served to answer the process shall not begin to run until such proof of service is filed" with "the court in the county in which the action is pending."¹³ But there is no textual basis for such an argument. At best, and construing Prospira's in pari materia¹⁴ interpretation of OCGA § 18-4-24 (a) and OCGA § 9-11-4 (h) as generously as possible, these two statutes are arguably in conflict; and the garnishment statute ( OCGA § 18-4-24 (a) ), as the more specific statute, controls over OCGA § 9-11-4 (h).¹⁵

But in our view, OCGA § 9-11-4 (h) has no bearing at all on the meaning of OCGA § 18-4-24 (a). OCGA § 18-4-24 (a) only incorporates OCGA § 9-11-4 as to the manner in which "the plaintiff shall serve the garnishee," and OCGA § 9-11-4 (h) has nothing to do with how a garnishee is to be served with a default judgment. To the contrary, OCGA § 9-11-4 (h) concerns the "return" of service once it has already been made—i.e. , making "proof of such service with the court in the county in which the action is pending within five business days of the service date."

Prospira's reliance on OCGA § 9-11-4 (h) is also problematic because while that statute does toll the time "to answer the process," there is no "process" to "answer" in a default judgment proceeding—the time to answer having already expired.¹⁶ Indeed, the relevant document to be served here was not process (i.e. , a summons¹⁷ ) but a default judgment. And again, by...