Rampersad v. Plantation At Bay Creek Homeowners Ass'n, Inc.

• Citation: 868 S.E.2d 475,362 Ga.App. 329
• Decision Date: 21 January 2022
• Docket Number: A21A1490, A21A1491
• Parties: RAMPERSAD v. The PLANTATION AT BAY CREEK HOMEOWNERS ASSOCIATION, INC. Patel v. The Plantation at Bay Creek Homeowners Association, Inc.
• Court: United States Court of Appeals (Georgia)

362 Ga.App. 329

868 S.E.2d 475

RAMPERSAD

v.The PLANTATION AT BAY CREEK HOMEOWNERS ASSOCIATION, INC.

Patel

v.The Plantation at Bay Creek Homeowners Association, Inc.

A21A1490, A21A1491

Court of Appeals of Georgia.

January 21, 2022

Kavita Rampersad, for Appellant in A21A1490.

Brandon David Wagner, Alpharetta, for Appellee in A21A1490 and A21A1491.

Chandani V. Patel, for Appellant in A21A1491.

Pinson, Judge.

A homeowners’ association sued several property owners to recover unpaid assessments on a residential property in Loganville. In the end, the HOA won a judgment that imposed a $14,231.40 lien on the property and authorized a foreclosure to satisfy the lien. Two of the defendants, Chandani Patel and Kavita Rampersad, moved the trial court to set aside the judgment, but their motions were denied. Both now appeal. We lack jurisdiction to consider Patel's appeal because it is her second attempt to appeal the judgment, so we must dismiss it. Rampersad's appeal, by contrast, is properly before us. She contends that the judgment should be set aside because (1) she was not properly served with the summons and complaint; (2) the trial court failed to give her proper notice of the trial date; (3) the trial court failed to notify her of the final judgment; and (4) the trial court failed to make findings of fact in denying her motion to set aside. For reasons explained below, we vacate the trial court's order to the extent it denied Rampersad's motion to set aside and remand for further consideration of whether Rampersad was properly served and properly notified of the trial date and the final judgment.

Background

The Plantation at Bay Creek Homeowners’ Association sued to recover unpaid assessments on a residential property on Creek Bottom Road in Loganville, Georgia. The initial complaint named only Roshni Patel ("Roshni") and Chandani Patel ("Patel") as defendants. As the suit progressed, the HOA amended its complaint to (1) add Kavita Rampersad and three corporate defendants, all of whom had appeared in the property's recent chain of title,¹ and (2) seek additional remedies, including judicial foreclosure. In March 2017, after the HOA was unable to perfect service on any of the four additional defendants, the action was dismissed without prejudice.

In June 2017, the HOA sued the same six defendants a second time to recover the unpaid assessments, and it again sought damages and judicial foreclosure. Service was perfected on Roshni and the three corporate defendants, but the HOA was not able to perfect service on Rampersad and Patel. As a result, the trial court appointed special process servers, but their service attempts were also unsuccessful. The HOA then sought to depose Roshni to get the contact information for Rampersad and Patel, but according to an affidavit submitted by the HOA's counsel, Roshni "refused to provide any information." The HOA then moved to serve Rampersad and Patel by publication, and the court granted the motion. The required notices were published in the Gwinnett Daily Post in August and September 2018.

In November 2018, Rampersad and Patel each filed an answer.² These answers were untimely because they were filed more than 60 days after the July 31, 2018, order granting service by publication.³ Rampersad and Patel also moved for a continuance of the trial, which had been placed on the trial calendar for the weeks of November 26–30 and December 3–7, 2018.⁴ None of these motions were ruled on before the case was called for trial on November 26, 2018, and none of the defendants appeared at the trial. At the trial, after hearing from a single witness called by the HOA, and then from the HOA's counsel about attorney fees and costs, the court entered judgment in favor of the HOA. The final order imposed a $14,231.40 lien on the property and authorized a foreclosure on the property to satisfy the lien.

In December 2018, Rampersad moved to set aside the judgment. She challenged the sufficiency of service and claimed, among other things, that she had never received either the trial notice or a copy of the court's judgment. For her part, Patel filed a notice of appeal in January 2019. In June 2020, this Court dismissed the appeal as untimely. Patel v. The Plantation at Bay Creek Homeowners’ Association, Inc. , ––– Ga. App. –––– (Case No. A20A0178, decided June 26, 2020). After that dismissal, Patel filed her own motion to set aside in the trial court. In August 2020, the trial court entered a summary order denying the motions to set aside. It does not appear that any hearing was held before the motions were denied.

On September 1, 2020, the Gwinnett County Sheriff held a foreclosure sale, at which the property was sold for $110,000. In the meantime, both Rampersad and Patel timely applied for discretionary appeal from the denial of the motions to set aside, and their applications were granted. Soon after, the HOA filed a "Motion to Compel Interpleader of Foreclosure Proceeds," noting that, on the HOA's request, the Sheriff was currently holding the funds from the foreclosure sale and asking the court to order the funds to be "held in the Court's registry pending disposition of the appeals." The motion was granted, and the buyer's cashier's check was placed in the registry of the court.

Discussion

1. We first address the jurisdictional question whether these appeals have been rendered moot by the foreclosure sale.

Mootness is a jurisdictional question because it concerns a court's power to decide a case. Georgia's Article VI courts are vested with "[t]he judicial power of the state." Ga. Const. Art. VI, Sec. I, Par. I. As traditionally understood, that power allows courts to decide cases: "live disputes" between adverse parties, In the Interest of I.B. , 219 Ga. App. 268, 269–70, 464 S.E.2d 865 (1995), in which one party has asserted an injury in fact that was caused by the other and that can be redressed by a favorable decision. Sons of Confederate Veterans v. Newton Cnty. Bd. of Comm'rs , 360 Ga. App. 798, 803–04 (2), 861 S.E.2d 653 (2021). A claim of mootness is a claim that, for one reason or another, the asserted injury can no longer be redressed by a favorable decision. See, e.g., Georgia Dep't of Nat. Res. v. Ctr. for a Sustainable Coast, Inc. , 294 Ga. 593, 595 (1), 755 S.E.2d 184 (2014) (explaining that a case is moot "[w]hen the remedy sought in the trial court is no longer available," as when "the thing sought to be enjoined in fact takes place"). So, at bottom, a case that is moot is not a case within the reach of the judicial power. See In the Interest of I.B. , 219 Ga. App. at 269, 464 S.E.2d 865 ; see also In the Interest of M. F. , 305 Ga. 820, 821, 828 S.E.2d 350 (2019) ("Dismissal of moot cases is mandatory."); Collins v. Lombard Corp. , 270 Ga. 120, 121, 508 S.E.2d 653 (1998). And so we address mootness, like other jurisdictional questions, before reaching the merits. Barrow v. Raffensperger , 308 Ga. 660, 666 (2) (b), 842 S.E.2d 884 (2020).

Turning to that question here, we conclude that these appeals are not moot. A case becomes moot on appeal if the appellants can no longer get their desired relief, and so a favorable decision on appeal would "be of no benefit" to them. Inserection v. City of Marietta , 278 Ga. 170, 171 (1), 598 S.E.2d 452 (2004) ; see also State v. Green , 331 Ga. App. 107, 111, 769 S.E.2d 804 (2015). That is ordinarily the result when a party appeals to prevent foreclosure, but the foreclosure sale is completed before the appeal can be resolved. See, e.g., Cotton v. First Nat'l Bank of Gwinnett County , 235 Ga. 511, 511, 220 S.E.2d 132 (1975) ; Goodrich v. Bank of America, N.A. , 329 Ga. App. 41, 43, 762 S.E.2d 628 (2014). But this case is different, because this foreclosure sale can still be cleanly unwound: the cashier's check tendered by the buyer at the foreclosure sale is being held in the trial court's registry, and there is no evidence that title to the property has changed hands. Given these circumstances, it is still possible for the appellants here to benefit from a favorable decision on appeal. If we conclude that the trial court erred in entering its judgment imposing the lien on their property and authorizing foreclosure, the trial court could unwind those actions (by ordering the funds returned to the purchaser), which is ultimately the result Rampersad and Patel seek. The HOA has offered no evidence or argument to the contrary. In short, because a favorable decision on appeal could still help Rampersad and Patel protect their asserted rights in the property, these appeals are not moot.

2. Although Patel's appeal is not moot, it still must be dismissed for a different reason: she has already litigated an appeal from the judgment below. "[A] party is not entitled to a second appeal from a single order." Massey v. Massey , 294 Ga. 163, 165 (2), 751 S.E.2d 330 (2013) (punctuation omitted). This holds true even if the first appeal was dismissed without consideration of its merits, see Edwards v. City of Warner Robins , 302 Ga. 381, 385 (2), 807 S.E.2d 438 (2017) (appellant barred from appealing same order in later appeal after first appeal was dismissed for failure to follow discretionary appeal procedures), and that includes when, as here, the initial appeal was dismissed as untimely. See Houston County v. Harrell , 287 Ga. 162, 163–164, 695 S.E.2d 29 (2010). Even though Patel contends that she did not receive proper notice of the judgment, her decision to pursue an untimely appeal earlier—rather than moving to have the judgment set aside, as Rampersad did—forecloses this second effort to seek appellate review now. See id. 3. Rampersad's appeal, by contrast, is properly before us. We review the denial of a motion to set aside a judgment for abuse of discretion, Anglin v. State Farm Fire & Cas. Ins. Co. , 348 Ga. App. 362, 364, 823 S.E.2d 51 (2019). Rampersad appeals the denial of her motion to set aside on multiple bases: she challenges the sufficiency of...