Srm Realty v. Capital Flooring Enterprises

• Decision Date: 07 July 2005
• Docket Number: No. A05A0100.,No. A05A0099.,A05A0099.,A05A0100.
• Parties: SRM REALTY SERVICES GROUP, LLC v. CAPITAL FLOORING ENTERPRISES, INC. (Two Cases).
• Court: Georgia Court of Appeals

274 Ga. App. 595

617 S.E.2d 581

SRM REALTY SERVICES GROUP, LLC v. CAPITAL FLOORING ENTERPRISES, INC. (Two Cases).

No. A05A0099.

No. A05A0100.

Court of Appeals of Georgia.

July 7, 2005.

Reconsideration Denied July 27, 2005.

Larry C. Oldham, Cumming, Brent S. Reece, for appellant.

Stephen C. Whicker, Woodstock, for appellee.

PHIPPS, Judge.

In Case No. A05A0099, SRM Realty Services Group, LLC appeals from a default judgment entered against it and in favor of Capital Flooring Enterprises, Inc. In Case No. A05A0100, SRM Realty appeals from the denial of its motion to set aside that default judgment. In both cases, SRM Realty argues that its answer was timely. Alternatively, it argues that even if its answer was untimely, the default judgment must nonetheless be set aside because Capital Flooring failed to provide it with notice that it was seeking a default judgment and because Capital Flooring did not make certain certifications to the court in seeking default judgment. Finding no merit in these arguments, we affirm the judgments.

On January 8, 2004, Capital Flooring filed suit against "SRM Realty Services, LLC, & that certain Cash Bond in the amount of $ 11,272.57." Capital Flooring alleged that, pursuant to a contract with a building contractor, it had provided $11,272.57 worth of labor and materials for improvements upon certain real estate; that the contractor had failed to pay it that amount; that it thus filed a claim of lien in the clerk's office for the county where the property was located; that a subsequent title search by SRM Realty conducted on behalf of the contractor in its sale of the property to new owners negligently failed to discover the lien; that SRM Realty thereafter filed a cash bond in that amount to be used to pay the holder of the lien if it was determined to be due in any legal proceeding seeking to foreclose the lien and recover same; that upon the filing of the cash bond, the property was discharged from the lien; and that it had obtained a judgment against the contractor in the amount of $11,272.57, but had not yet been paid.

That same day, Capital Flooring's attorney sent SRM Realty's attorney a letter, which stated in its entirety,

Enclosed please find a copy of the Complaint which we have filed on behalf of Capital Flooring in the above styled case. In accordance with our previous understanding, please sign the original enclosed Acknowledgment of Service and return the same to me in the enclosed self addressed envelope. We have also enclosed one (1) copy of the Acknowledgment of Service for your files.

The accompanying "Acknowledgment of Service" stated in its entirety,

Comes Now, the Defendant, SRM Realty Services, LLC, a Georgia limited liability company, and by and through its counsel of record, hereby acknowledges due and legal service of the complaint and all exhibits thereto and the summons in the above styled case and hereby waives all other and further service.

The accompanying summons contained the following language,

You are hereby summoned and required to file with the Clerk of said court and serve upon the Plaintiff's attorney ... an answer to the complaint which is herewith served upon you WITHIN 30 DAYS AFTER SERVICE OF THIS SUMMONS UPON YOU, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

SRM Realty's attorney executed the "Acknowledgment of Service." Above the signature area was handwritten, "Acknowledged as of January 14, 2004." On March 8, SRM Realty filed and served Capital Flooring with an answer to the complaint.

Two days later, Capital Flooring sought a default judgment. Its default certificate stated,

No answer or other defensive pleadings was filed by the Defendant or by anyone on behalf of the sums paid into this Court within thirty (30) days of the Acknowledgment of Service. Said Answer or other defensive pleadings were legally due on or before February 13, 2004.... Said case thus went into Default on or about February 14, 2004.... No costs were paid into the Court and no answer or other defensive pleadings were filed by the Defendant or by anyone on behalf of the sums paid into this Court after said case went into Default within fifteen (15) days of February 14, 2004. Defendant's right to open the Default expired as a matter of law on or about March 1, 2004.... Defendant on or about March 8, 2004 attempted to file an Answer in said case without payment of any costs and without the filing of any Motion to Open Default. Plaintiff was served with the defensive pleadings on March 9, 2004.

On March 10, 2004, the trial court entered a default judgment, ordering, among other things, that the cash bond previously paid into the court's registry be disbursed to the plaintiff.

SRM Realty filed a motion to set aside the default judgment, arguing that its answer had been timely served. OCGA § 9-11-12 mandates, "A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute." SRM Realty cited OCGA § 9-11-4(d), arguing that pursuant to that statute, it was allotted 60 days from the date on which the "Acknowledgment of Service" was sent to it to serve its answer. It claimed that its answer, which was served on March 8, was timely.

Under OCGA § 9-11-4(d), a plaintiff may notify a defendant of the commencement of an action and request that the defendant waive service of a summons. Paragraph (3) of OCGA § 9-11-4(d) sets forth specific requirements for the notice and request. And paragraph (5) of OCGA § 9-11-4(d) provides,

A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.¹

The court denied the motion to set aside the default judgment based on its determination that Capital Flooring's notice and waiver request had not fully accorded with OCGA § 9-11-4(d)(3), which requires that a notice and request:

(A) Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;

(B) Be dispatched through first-class mail or other reliable means;

(C) Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l)² of this Code section, of the consequences of compliance and of failure to comply with the request;

(E) Set forth the date on which the request is sent;

(F) Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and

(G) Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

The court determined, "Specifically, the January 8, 2004 letter fails to satisfy all or portions of the requirements set forth in [parts (A), (C), and (D)]." It therefore concluded that SRM Realty had not shown entitlement to the 60-day time period allotted under OCGA § 9-11-4(d).

1. SRM Realty contends that the trial court erred in determining that its answer was untimely. It maintains that, because its attorney executed the "Acknowledgment of Service," it was entitled to a 60-day response time pursuant to OCGA § 9-11-4(d). Capital Flooring counters that SRM Realty's attorney's execution of the "Acknowledgment of Service" did not implicate OCGA § 9-11-4(d). Capital Flooring claims that by signing the "Acknowledgment of Service," SRM Realty's attorney waived service pursuant to OCGA § 9-10-73 and that that Code section does not expand the time limitation mandated by OCGA § 9-11-12 to serve an answer.³

In its entirety, OCGA § 9-10-73 provides, "The defendant may acknowledge service or waive process by a writing signed by the defendant or someone authorized by him." In analyzing OCGA § 9-10-73 in relation to OCGA § 9-11-4(d), we are guided by State v. Lockett,⁴ which states: "A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto."⁵ Generally, where the language of an act is plain and unequivocal, judicial construction is forbidden.⁶ And it is "presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication."⁷

OCGA §§ 9-10-73 and 9-11-4(d) relate to the same subject matter: waiver of service. The law stated in OCGA § 9-10-73 existed long before the enactment of OCGA § 9-11-4(d),⁸ which was added as part of the 2000 amendments.⁹ If the General Assembly had intended to eliminate OCGA § 9-10-73 or to impose upon OCGA § 9-10-73 any of the particularities of OCGA § 9-11-4(d), it could have done so. It did neither expressly; and neither is necessarily implied. We conclude that OCGA § 9-10-73 remains a viable method of effecting waiver of service, independent of OCGA § 9-11-4(d).¹⁰ This conclusion, moreover, is consistent with OCGA § 9-11-4(j),¹¹ concerning methods of service:

"The methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a...