Oxmoor Portfolio, LLC v. Flooring

• Citation: 740 S.E.2d 363,320 Ga.App. 640
• Decision Date: 21 March 2013
• Docket Number: No. A12A2265.,A12A2265.
• Court: United States Court of Appeals (Georgia)
• Parties: OXMOOR PORTFOLIO, LLC v. FLOORING & TILE SUPERSTORE OF CONYERS, INC.

320 Ga.App. 640

740 S.E.2d 363

OXMOOR PORTFOLIO, LLC

v.FLOORING & TILE SUPERSTORE OF CONYERS, INC.

No. A12A2265.

Court of Appeals of Georgia.

March 21, 2013.

Simpson, Uchitel & Wilson, Vivian Hudson Uchitel, Atlanta, Andrew Lee Hagenbush, for Appellant.

Elizabeth Jane Pope, for Appellee.

PHIPPS, Presiding Judge.

Oxmoor Portfolio, LLC filed this interlocutory appeal from the trial court's order granting a motion to set aside a default judgment in a garnishment proceeding, which motion was brought by Flooring & Tile Superstore of Conyers, Inc. (“FTSC”) pursuant to OCGA § 9–11–60(d)(3). The issues in this appeal are (1) whether FTSC was required to satisfy the requirements of OCGA § 18–4–91 in order to bring its motion pursuant to OCGA § 9–11–60(d)(3); and (2) whether the court erred in finding that FTSC showed a nonamendable defect appearing on the face of the record, as required by OCGA § 9–11–60(d)(3). We hold that FTSC was not required to satisfy the requirements of OCGA § 18–4–91 in order to bring its motion pursuant to OCGA § 9–11–60(d)(3), but that the trial court erred in finding that FTSC satisfied the nonamendable defect requirement of OCGA § 9–11–60(d)(3). Therefore, we reverse the judgment of the trial court.

Oxmoor commenced a continuing garnishment action, naming FTSC as the garnishee and “Patrick D. Parker a/k/a Pat Parker” as the defendant. Oxmoor stated in its affidavit of continuing garnishment that the defendant was indebted to Oxmoor on a judgment and that FTSC was believed to be an employer of the defendant. FTSC was served with the summons on April 12, 2011, and the sheriff's entry of service shows that service was made upon “Patrick Parker.” On May 26, 2011,¹ an answer was filed on FTSC's behalf, asserting therein that “Pat Parker” was not and had not been an employee of FTSC, and that FTSC possessed none of his assets. FTSC's answer was signed by someone identified as the “Garnishee”; ² the name was handwritten (only) and not legible. According to FTSC, the defendant's son, also named Patrick D. Parker, filed the answer on behalf of FTSC. Oxmoor filed a traverse to the answer, asserting that FTSC's answer was “untrue or legally insufficient.”

In December 2011, the trial court entered default judgment against FTSC. In its order, the court stated that Patrick D. Parker,³who was the named defendant in the case and not an attorney, had filed an answer on behalf of the garnishee (which was a corporation), that a corporation could be represented only by an attorney, and that the answer filed by Patrick D. Parker on behalf of FTSC was a mere nullity and could not be considered by the court.

On March 16, 2012, through counsel, FTSC filed a motion to set aside the default judgment pursuant to OCGA § 9–11–60(d)(3), asserting that the order granting the default judgment contained a nonamendable defect which appeared on the face of the record. That defect, FTSC argued, was that the answer should not have been dismissed as a nullity; rather, FTSC should have been permitted an opportunity to amend the answer to insert the name and signature of an attorney. In the motion, FTSC stated that the registered agent and officer of FTSC, Patrick D. Parker (to whom FTSC referred as “son Parker”), had filed a timely answer on behalf of FTSC, and that the court had mistakenly stated in the order that son Parker was the named defendant in the garnishment action, when the defendant was instead his father, with whom son Parker shared a name. ⁴ The trial court granted FTSC's motion to set aside and permitted FTSC to amend the answer.

1. Oxmoor contends that the trial court erred in setting aside the default judgment because FTSC failed to comply with OCGA § 18–4–91. According to Oxmoor, the provisions of OCGA § 18–4–91 are “mandatorypreconditions” to modify or set aside a default judgment entered against a garnishee, and the court cannot set aside a judgment pursuant to OCGA § 9–11–60(d) unless the garnishee complied with the former statute.⁵ We disagree.

When the issue is a question of law, such as here (whether FTSC was required to comply with OCGA § 18–4–91 in an action brought under OCGA § 9–11–60), we owe no deference to the trial court's ruling and apply the “plain legal error” standard of review.⁶

OCGA § 18–4–90(a) provides:

In case the garnishee fails or refuses to file a garnishee answer by the forty-fifth day after service of the summons, the garnishee shall automatically be in default. The default may be opened as a matter of right by the filing of a garnishee answer within 15 days of the day of default and payment of costs. If the case is still in default after the expiration of the period of 15 days, judgment by default may be entered at any time thereafter against the garnishee for the amount claimed to be due on the judgment obtained against the defendant.⁷

OCGA § 18–4–91 pertinently provides that when a judgment is rendered against a garnishee under OCGA § 18–4–90, the garnishee may, on timely-filed motion and upon payment of all accrued costs of court, have the judgment modified so that the amount of the judgment shall be reduced to an amount equal to the greater of $50 or $50 plus 100 percent of the amount by which the garnishee was indebted to the defendant.

OCGA § 9–11–60(d)(3) pertinently provides that a motion may be brought to set aside a judgment based upon a nonamendable defect which appears upon the face of the record or pleadings.

No language in either OCGA § 18–4–91 or OCGA § 9–11–60 requires a party to comply with OCGA § 18–4–91 as a precondition to obtaining relief pursuant to OCGA § 9–11–60. “A court cannot by construction add to, take from, or vary the meaning of unambiguous words in a statute.” ⁸ “We can not add a line to the law.” ⁹

We point out that the two statutes serve different purposes. OCGA § 18–4–91 specifically provides a procedure for a garnishee to have a judgment entered against it modified, while OCGA § 9–11–60 specifically provides a procedure for a garnishee to have a judgment entered against it set aside. As this court expressly recognized in Lewis v. Capital Bank,¹⁰ we have treated motions under OCGA § 9–11–60 to set aside default judgments in garnishment proceedings and motions under OCGA § 18–4–91 to modify such judgments as separate and distinct types of motions.¹¹ Thus, FTSC was not required to comply with OCGA § 18–4–91 in order to obtain relief pursuant to OCGA § 9–11–60(d)(3).

Oxmoor's reliance on J.E.E.H. Enterprises v. Montgomery Ward & Co.¹² as requiring compliance with OCGA § 18–4–91 where a motion is brought pursuant to OCGA § 9–11–60(d)(3) is misplaced. In that case, this court held that the garnishee had not established a proper basis for a motion to set aside, pursuant to OCGA § 9–11–60(d), because no nonamendable defect appeared on the face of the pleadings and no jurisdictional error was raised.¹³ The court added that “the payment of accrued court costs is a statutory prerequisite to a motion to modify a default judgment of garnishment. See OCGA § 18–4–91.” ¹⁴ But FTSC did not make a motion pursuant to OCGA § 18–4–91. In any event, J.E.E.H. did not hold that a garnishee must comply with OCGA § 18–4–91 as a precondition to seeking to set aside a judgment pursuant to OCGA § 9–11–60(d)(3).¹⁵

In their briefs, the parties discuss at length whether this issue is controlled by this court's decision in Lewis.¹⁶ It is not. In Lewis, this court rejected the garnishor's argument that, because “ OCGA § 18–4–115(b) otherwise makes provision for setting aside a default judgment in a continuing garnishment case[,] ... OCGA § 9–11–60 ... never can be applied with respect to such a judgment”; ¹⁷ we held that the garnishee was entitled to seek relief from a default judgment pursuant to OCGA § 9–11–60(d)(1).¹⁸ In that case, the garnishee had not been properly served and the trial court had not obtained jurisdiction of the person of the garnishee; because the default judgment was not one entered as provided in OCGA § 18–4–115(a), OCGA § 18–4–115(b) afforded no relief and the garnishee was entitled to bring a motion to set aside pursuant to OCGA § 9–11–60(d)(1).¹⁹ Inasmuch as Lewis did not address the issue raised in this case (namely, whether a garnishee must comply with OCGA § 18–4–91 as a precondition to seeking relief under OCGA § 9–11–60(d)(3)), it does not control here.

[320 Ga.App. 644]2. Oxmoor contends that the trial court erred in granting the motion to set aside the default judgment because FTSC failed to demonstrate that a nonamendable defect appeared on the face of the record. We agree.

OCGA § 9–11–60(d)(3) permits a judgment to be set aside on the basis of a “nonamendable defect which appears upon the face of the record or pleadings.” “Where ... the record shows on its face that the default was entered on an improper basis, there is a nonamendable defect on the face of the record.” ²⁰ “Under [ OCGA § 9–11–60(d)(3) ], ... the pleadings must affirmatively show no claim in fact existed.” ²¹ “We review a trial court's ruling on a motion to set aside a judgment under OCGA § 9–11–60(d) for abuse of discretion.” ²²

In its motion to set aside, FTSC asserted:

The [December 2011] Order contains a non-amendable defect which appears on the face of the record.... Specifically, the timely filed answer of son Parker, as CEO and registered agent of Garnishee, should not have been dismissed as a nullity. Rather, Garnishee should have been permitted an opportunity to amend the Answerto insert the name and signature of an attorney.

The record shows that FTSC's answer was not signed by an attorney. Indeed, because FTSC (a corporation) could be represented in a court of record only by an attorney, the purported answer signed and filed by an officer or registered agent was defective.²³ Although the defect could have been cured as a matter of right before the entry of a pretrial order and thereafter with leave of court before judgment,²⁴ it was not; indeed,...