Principal Lien Servs., LLC v. Nah Corp.

• Citation: 346 Ga.App. 277,814 S.E.2d 4
• Decision Date: 14 May 2018
• Docket Number: A18A0029
• Court: Georgia Court of Appeals
• Parties: PRINCIPAL LIEN SERVICES, LLC v. NAH CORPORATION.

346 Ga.App. 277

814 S.E.2d 4

PRINCIPAL LIEN SERVICES, LLC

v.NAH CORPORATION.

A18A0029

Court of Appeals of Georgia.

Decided May 14, 2018

Reconsideration Denied June 14, 2018.

Certiorari Denied January 7, 2019

Rhodes Law Office, Tynesha D. Rhodes, Snellville, for appellant.

Gannam, Gnann & Steinmetz, Joseph M. Gannam, Savannah, for appellee.

Dillard, Chief Judge.

Principal Lien Services, LLC ("PLS") filed a garnishment action against NAH Corporation ("NAH"), seeking to recover on a judgment it obtained in a lawsuit against DLH Investment Corporation ("DLH"). After NAH failed to file a response, PLS obtained a default judgment. Eventually, NAH learned of the action and filed a motion to set aside the default judgment, which resulted in the trial court granting the motion and dismissing the garnishment action. On appeal, PLS contends that the trial court erred in ruling (1) NAH had standing to raise the defense that DLH was not provided timely notice of the garnishment action; (2) NAH had not waived such defense; (3) PLS's failure to provide proper notice to DLH was a nonamendable defect; and (4) PLS's actions warranted setting aside the default judgment. For the reasons set forth infra , we reverse the trial court's judgment.

‘‘Absent an abuse of discretion, we will not reverse a trial court's refusal to set aside a default judgment.’’¹ But the standard of review for a question of law on appeal is de novo , "during which we owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review."² So viewed, the record shows that on May 13, 2015, PLS filed a garnishment against NAH in the State Court of Wayne County based on a judgment it obtained against DLH in a lawsuit filed in the Superior Court of Gilmer County. Two days later, on May 15, 2015, PLS served Yogesh Patel, who was listed as the registered agent for NAH. On May 21, 2015, PLS attempted to serve DLH, as the judgment debtor, with notice of the garnishment action, via certified mail. And on July 6, 2015, PLS filed a "Certificate of Service Upon Defendant," under former OCGA § 18-4-64 (a) (2),³ indicating its attempt to serve DLH by attaching the return receipt and the returned envelope, which was marked as "Not Deliverable As Addressed, Unable to Forward."

At some point after PLS served NAH's listed registered agent, Yogesh Patel, with the garnishment action (but before it took any additional action), Patel contacted PLS's counsel by telephone and advised that NAH had been dissolved in 2002, he had resigned as NAH's registered agent around that same time, and he had no knowledge of NAH's current status. And at the conclusion of this conversation, PLS's counsel told Yogesh Patel "not to worry about the garnishment."

Nevertheless, after NAH failed to file an answer in the garnishment action within 60 days of it being served, PLS filed a motion for default judgment. And on September 4, 2015, the trial court granted PLS's motion and entered a default judgment against NAH. Then, on September 27, 2015, PLS served NAH with a copy of the default judgment by mailing it certified, once again, to Yogesh Patel, who was still listed as NAH's registered agent in the Secretary of State's records. This notice, however, was returned as undeliverable. PLS then conducted research into the issue, after which, on December 14, 2015, it sent a copy of the default judgment, via certified mail, to the address of a package store in Jesup, Georgia, for which Yogesh Patel was listed as the owner. There, the copy of the default judgment was accepted and signed for by Jitendra Patel, an employee at Yogesh Patel's store.

On June 13, 2016, NAH filed a motion to set aside the default judgment, arguing, inter alia , that PLS's notice of the garnishment action to DLH was untimely and, thus, constituted a nonamendable defect on the face of its pleading. The motion also included an affidavit of Narotam Patel, the CEO of NAH, stating that he first learned of the garnishment action and default judgment as a result of litigation PLS filed to enforce the judgment. On March 10, 2017, the trial court held a hearing on the matter, which concluded with the court ruling in favor of NAH. Then, on March 21, 2017, the trial court issued an order affirming its ruling to set aside the default judgment and further ruling to dismiss the garnishment action. PLS then filed an application for a discretionary appeal, which we granted. This appeal follows.

1. PLS first contends that the trial court erred in ruling that NAH, the garnishee, had standing to raise the defense that DLH, the judgment debtor, was not provided timely notice of the garnishment action. We agree.

In Georgia, garnishment statutes are

in derogation of the common law and, thus, must be strictly construed."⁴ Nonetheless, with that principle in mind, in cases "in which a plaintiff has obtained a money judgment against a defendant, the plaintiff is entitled to file a garnishment action in a court which has jurisdiction over the garnishee, the person or entity which has in its possession money or property which belongs to the defendant and is subject to garnishment.⁵

As further explained in former OCGA § 18-4-93 (2000),

[a] garnishment proceeding is an action between the plaintiff and the garnishee; but, at any time before a judgment is entered on the garnishee's answer or before money or other property subject to garnishment is distributed, the defendant may become a party to the garnishment for the purposes set out in Code Section 18-4-65 by filing a traverse to the plaintiff's affidavit stating that the affidavit is untrue or legally insufficient; and he shall be a party to all proceedings thereafter.

And given the defendant's right to become a party to a garnishment action, a defendant must be provided notice that such an action has been filed. Thus, as previously noted, former OCGA § 18-4-64 (a) (2) in part provides:

The plaintiff, after issuance of the summons of garnishment and not more than three business days after service of the summons of garnishment on the garnishee, shall cause a written notice to be sent to the defendant at the defendant's last known address by registered or certified mail or statutory overnight delivery, return receipt requested...

Former OCGA § 18-4-64 (e) then provides:

No money or other property delivered to the court by the garnishee shall be distributed; nor shall any judgment be rendered against the garnishee until after the expiration of ten days from the date of compliance with at least one method of notification provided by subsection (a) of this Code section.

In its motion to set aside the default judgment, NAH argued—and the trial court agreed—that PLS failed to provide DLH with notice of the garnishment action within three business days as required by former OCGA § 18-4-64 (a) (2). This failure, NAH argued, coupled with the language in OCGA § 18-4-64 (e), constituted a nonamendable defect upon the face of PLS's pleading, which warranted setting aside the default judgment.⁶ But even though PLS concedes that it failed to provide DLH with notice of its garnishment action within three business days, we need not decide whether such failure constituted a nonamendable defect because NAH, as the garnishee (and not the judgment defendant), lacks standing to raise this defense.

As the Supreme Court of Georgia has held, "standing is in essence the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues, and litigants must establish their standing to raise issues before they are entitled to have a court adjudicate those issues."⁷ Indeed, "a party only has standing to assert a procedural right so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing."⁸ Moreover, generally, a party has "no standing to voice a vicarious objection to the sufficiency of service upon another party."⁹ Here, the plain language of former OCGA § 18-4-64, as noted supra , concerns a plaintiff's obligation to provide the judgment defendant with notice of a garnishment action so as to protect the defendant's interests in such action. As a result, only the defendant has standing to assert that a plaintiff failed to meet the requirements of this statute.¹⁰ This reading of former OCGA § 18-4-64 is further supported by the fact that other sections of the garnishment statute ensure that a garnishee is not without its own remedies for challenging a plaintiff's action.¹¹ And although NAH maintains that subsection (e), nevertheless, insulates it from judgment under the facts in this matter, the Supreme Court of Georgia held in Oasis Goodtime Emporium I, Inc. v. City of Doraville ,¹² that a similar statutory notice requirement did not obviate standing as a threshold issue.¹³ Given these particular circumstances, only DLH is harmed by the lack of timely notice provided to it, and thus, only DLH may raise this issue as a defense.¹⁴ Accordingly, the trial court erred in ruling that NAH had standing to raise the defense that DLH was not provided timely notice of the garnishment action.

2. In its second and third claims of error, PLS contends that the trial court erred in ruling that NAH had not waived the defense of untimely notice to DLH and that PLS's failure to provide such timely notice was a nonamendable defect. But given our holding in Division 1 supra , that NAH lacked standing to raise the defense of untimely notice to DLH, we need not address these issues.

3. PLS also contends that the trial court erred in ruling that its acts, specifically its counsel's telephone conversation with Yogesh Patel, warranted setting aside the default judgment. Again, we agree.

OCGA § 9-11-60 (d) (2) provides: "A motion to set aside may be brought to set aside a judgment based upon ... [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the...