Vasile v. Addo

• Decision Date: 13 April 2017
• Docket Number: A17A0553.
• Citation: 800 S.E.2d 1
• Parties: VASILE et al. v. ADDO.
• Court: Georgia Court of Appeals

341 Ga.App. 236

800 S.E.2d 1

VASILE et al.

v.ADDO.

A17A0553.

Court of Appeals of Georgia.

April 13, 2017

Scott McKenzie Stevens, Alpharetta, for Appellant.

Paul Eric Andrew, Lawrenceville, for Appellee.

Self, Judge.

In this discretionary appeal, Timis Vasile, individually and d/b/a Timis Auto Sales ("Vasile"), and Roga Import Export, LLC ("Roga") appeal the trial court's denial of their second motion to set aside a default judgment. For reasons that follow, we agree with appellants as to Vasile, but disagree as to Roga.

So viewed, the record shows that on September 3, 2015, Enoch Addo sued appellants for breach of contract, money had and received, quantum meruit, and unjust enrichment arising from an agreement whereby appellants allegedly consented to receive on behalf of Addo, the amount of $72,000, via a wire transfer. Addo sought judgment in the amount of $64,000, plus interest and attorney fees. Addo alleged that the money was wired into Roga's bank account and then transferred by Vasile to an account in the name of Timis Auto Sales, but never turned over to Addo.

On September 10, 2015, Addo attempted to serve Vasile individually and as the registered agent for Roga, but the deputy sheriff's return of service was returned non est with a notation that "Timis Vasile owns residence, but rents the home out, defendant is possibly in Romania." On October 27, 2015, Addo moved for service upon Vasile by publication and by mail, averring that he rents the downstairs of Vasile's residence and that Vasile is aware of the lawsuit. According to Addo, Vasile told him before the filing of the lawsuit that he was in a "Mexican jail" and has sent hundreds of threatening text messages to Addo about the lawsuit, including one on September 22, 2015, stating that he hopes Addo dies of cancer

and that "God would punish [Addo] for suing [Vasile] while knowing he was in prison," and another on September 29, 2015, asking "when is the court date?" Addo's attorney also filed an affidavit stating that,

[d]espite the effort at service, affiant has been unsuccessful in serving [Vasile] due to [his] continuing willful and deliberate efforts to avoid service, to wit: Prior to the filing of the lawsuit, Vasile told the Plaintiff he was in a "Mexican jail" but refused to provide the name of that jail. Prior to the filing of this Complaint, Vasile has also communicated with the Plaintiff via the texting "app" "What's App" so it is highly doubtful he would have access to a smart phone or computer while he was in a Mexican prison. Further, after the lawsuit was filed, Vasile somehow learned of the filing of the lawsuit and has sent and has continued to send many threatening text messages to [Addo]. Also, as noted above, Vasile's tenant told the Deputy that Vasile was in Romania so that is more likely the truth than Vasile being in a Mexican prison.... It is clear that [Vasile] has personal knowledge of the [complaint] and has personally communicated with [Addo] but [Vasile] will not allow himself to be served.

The trial court granted the motion on November 2, 2015, finding that Vasile "appears to remain a resident of the State of Georgia and has actual knowledge that this action has been filed and is pending, and that the sole reason for [Addo's] failure to accomplish personal service ... has been the efforts of [Vasile] to secret himself and to conceal himself to avoid service." On December 11, 2015, the notice of publication was filed with the court. In addition, Addo requested that the clerk of the Gwinnett County State Court mail a stamped-filed copy of the notice to Vasile's alleged address. Beginning on December 17, 2015, the notice was published in the Gwinnett Daily Post for four consecutive weeks.

Addo effected substitute service upon Roga by serving the Georgia Secretary of State via certified mail. On December 11, 2015, the Secretary of State issued a certificate of acknowledgment, which indicated that the Secretary of State received the "complaint, summons, [and] attorney certification."

On February 4, 2016, Addo filed a request for default judgment, alleging that "[t]he Defendant Roga ... was served as follows: (a) by attempting Personal Service on its Registered Agent [ ( ]which was not successful[ ) ]; (b) by Certified Mail to its Registered Agent at its principal office; and (c) by service on the Secretary of State via Certified Mail."¹ On February 17, 2016, the trial court entered a default judgment against appellants for failure to file an answer or other responsive pleadings. The order provided as follows: "Judgment by default is hereby entered against [appellants], jointly and severally, in favor of ... A[ddo] in the principal sum of $64,000.00 plus interest (18% per annum)."

In March 2016, appellants answered the complaint and moved to set aside the default judgment, contending that Addo committed a fraud upon the court by alleging that he was unaware of Vasile's whereabouts when he moved for service by publication and effected substitute service on the Secretary of State. In an affidavit filed contemporaneously with the motions, Vasile averred that he was in Romania from June 2, 2015, until October 25, 2015; that Addo resided in a basement apartment of his home and knew Vasile was out of the country; that at the time Addo moved for service by publication, he was aware that Vasile had returned from Romania and was living in the upstairs portion of the home; that he has never been personally served with the lawsuit or "served by mail with anything pertaining to [the] lawsuit" and did not know of its existence until March 17, 2016, when his attorney told him to get a copy from the court; and, that he never received any money on behalf of Addo.

In April 2016, appellants' counsel withdrew from the case. On May 10, 2016, the trial court denied appellants' motion to set aside. On May 21, 2016, appellants' new counsel then filed a second motion, moving to set aside the default judgment for lack of personal jurisdiction based upon improper service, pursuant to OCGA § 9-11-60 (d) (1). Roga argued that the court lacked personal jurisdiction because service was defective pursuant to OCGA § 14-11-209 (f) and Vasile argued that the court lacked personal jurisdiction because service was defective pursuant to OCGA § 9-11-4 (f). On August 8, 2016, the trial court summarily denied the motions and we granted appellants' application for discretionary appeal.

1. As a threshold matter, Addo challenges the trial court's consideration of appellants' second motion to set aside, contending that it was barred by the doctrine of res judicata. Addo claims that appellants should have raised the issue of improper service in their first motion to set aside when they alleged fraud. In Holloway v. McCarthy , 151 Ga.App. 828, 261 S.E.2d 732 (1979), this Court held that the denial of a defendant's first motion to set aside a default judgment did not bar the defendant's second motion to set aside because the motions attacked the judgment on different grounds. Id. at 829 (1), 261 S.E.2d 732. In this case, Vasile's first motion to set aside attacked the judgment on the ground that Addo perpetrated a fraud against the trial court, and the second motion to set aside attacked the judgment on the ground that the trial court lacked personal jurisdiction due to improper service. Accordingly, "the prior ruling of the trial judge against [appellants'] motion to set aside the judgment, from which ruling no appeal was made, was not res judicata." (Citation and punctuation omitted.) Id. Compare Guthrie v. Wickes , 295 Ga.App. 892, 894 (2), 673 S.E.2d 523 (2009) (order denying application for discretionary review invokes the doctrine of res judicata when the judgment appealed from is final and on the merits).

2. In their first enumeration of error, appellants contend that the trial court should have set aside the default judgment against Vasile because service was improper under OCGA § 9-11-4 (f). Appellants argue that (a) one attempt at service does not meet the requirement of "due diligence," and (b) the clerk of court failed to mail notice to Vasile of the service by publication as required by the statute.²

We review a ruling on a motion to set aside for abuse of discretion and affirm if there is any evidence to support it. Hooks v. McCondichie Properties 1 , 330 Ga.App. 583, 584, 767 S.E.2d 517 (2015). "Factual disputes regarding service are to be resolved by the trial court, and the court's findings will be upheld if there is any evidence to support them." (Citation and punctuation omitted; emphasis in original.) Vibratech, Inc. v. Frost , 291 Ga.App. 133, 140 (1) (b), 661 S.E.2d 185 (2008). However, we review a question of law on appeal under a de novo standard of review, meaning that we "owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review." (Citation, punctuation and footnote omitted.) Hutcheson v. Elizabeth Brennan Antiques & Interiors , 317 Ga.App. 123, 125, 730 S.E.2d 514 (2012).

OCGA § 9-11-4 (f) (1) (A) provides that

[w]hen the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons....

Id. See Ragan v. Mallow , 319 Ga.App. 443, 446–47 (2), 744 S.E.2d 337 (2012). Because we do not find the service by publication in this case legal, we need not address appellants' contention that one attempt at service does not meet the requirement of "due diligence."

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