Basmatie Jorree v. Pmb Rentals, LLC ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 11, 2019
In the Court of Appeals of Georgia
A18A1466. JORREE v. PMB RENTALS, LLC.
REESE, Judge.
After the Magistrate Court of Washington County denied Appellant Basmatie
Jorree’s motion to set aside a default judgment entered against her, she filed a petition
for a writ of certiorari in the Superior Court of Washington County. The superior
court granted the motion to dismiss filed by Appellee, PMB Rentals, LLC, and we
granted the Appellant’s application for discretionary review. For the reasons set forth,
infra, we vacate the superior court’s judgment and remand for further proceedings.
In July 2012, PMB Rentals filed a verified complaint in magistrate court
against the Appellant and her husband, Sookdeo Joree1 (collectively, the
“defendants”), alleging in Counts 1, 2, and 3 claims of breach of contract against
1
Although the record has occasional references to “Sookdeo Jorree,” his last
name more often appears as “Joree,” and we adopt that spelling in this opinion.
Sookdeo Joree based on his failure to make the agreed-upon payments on the
purchase of three storage units. In Counts 4, 5, and 6, PMB Rentals sought possession
of the three units. The remaining counts alleged conversion against both defendants
and sought attorney fees and litigation costs.
The following month, PMB Rentals filed a motion for the appointment of a
process server. According to the “sheriff’s entry of service[,]” the sheriff’s department
had been unable to perfect service as there was a locked gate at the defendants’
residence, which was located approximately 1,000 feet from the roadway. PMB
Rentals requested the court to appoint Copus Investigations, LLC (“Copus”), as
special process server. The magistrate court granted the motion.
In October 2012, PMB Rentals filed a motion for service by publication,
alleging that both the sheriff’s department and the special process server had been
unable to perfect service on the defendants. In a supporting affidavit, the attorney for
PMB Rentals testified that the defendants either could not be found in Washington
County for service or they were avoiding service. The magistrate court granted the
motion.
In January 2013, PMB Rentals filed a motion for default judgment, averring
that the defendants had been “served by publication by way of a legal advertisement
2
in The Sandersville Progress[,]”2 but had not filed an answer or other responsive
pleading. In an order entered the same day, the magistrate court granted the motion,
“it appearing to the Court that more than 60 days ha[d] elapsed since the Order of
Publication of the Summons and Complaint[.]”
After designating PMB Rentals as “Plaintiff” and Sookdeo Joree and Basmatie
Jorree as “Defendants[,]” the magistrate court ordered that “Plaintiff shall have
judgment against Defendant pursuant to Counts [1, 2, and 3.]”3 The magistrate court
awarded judgment in the amount of $10,714.89, plus fees and costs. The magistrate
court also awarded possession of the three properties to PMB Rentals, pursuant to its
claims in Counts 4, 5, and 6 of its complaint. The magistrate court did not address the
remaining claims.
Almost a year and a half later, the Appellant filed a motion to set aside the
default judgment, alleging lack of personal jurisdiction. The Appellant challenged the
grounds for the appointment of the special process server and service by publication.
The Appellant argued, inter alia, that the attorney’s affidavit for service by
publication “contained only conclusory statements and/or statements of which [the]
2
The record does not include a certificate of the clerk of court certifying to the
publication and mailing. See OCGA § 9-11-4 (h).
3
(Emphasis supplied.)
3
attorney” lacked firsthand knowledge. PMB Rentals had not provided an affidavit
from anyone at Copus regarding the process server’s efforts to serve the Appellant.
The Appellant also noted that the default judgment appeared to only have been
entered against Sookdeo Joree as it stated “Defendant” in the singular and entered
judgment on the three breach-of-contract claims that had been asserted only against
him.
In support of her contention that she had meritorious defenses and
counterclaims, the Appellant also filed a verified answer to the complaint. According
to the Appellant, two of the three storage units at issue had been destroyed in a fire
and no longer existed. According to the verified answer,
[a]t some point shortly after the May 17, 2008, purchase of the 10 foot
[by] 18 foot [remaining] unit, [the unit] was attached to a 14 foot [by] 18
foot unit on its left side and was attached to a 24 foot [by] 18 foot
structure on its right side. After the units were attached: plumbing was
installed with working sinks and complete bathrooms; electrical work
was done so that the structure had working electrical outlets and light
switches; insulation was added to the walls; the walls were covered with
sheetrock and painted; tile flooring was installed; a water heater was
installed; an air conditioning unit was installed, a kitchen stove,
refrigerator, and kitchen cabinets were installed; and the structure was
completely furnished with living room, bathroom, and bedroom
4
furniture. Sookdeo Joree, [the Appellant,] and their five[-]year[-]old
daughter began living in the unit.
Sookdeo Joree returned to his native country of Brazil in May 2009, after
deeding to the Appellant the Washington County property on which the remodeled
structure was located. The Appellant and their daughter continued to live in the
structure. In an affidavit filed with the answer, the Appellant testified that she had not
been involved with the contracts to purchase the units and that her husband had never
discussed with her the status of payments. She was not aware of the lawsuit filed
against her in Washington County and had not attempted to avoid service.
According to the answer and affidavit, in May 2013, agents for PMB Rentals
cut the lock on the gate to the Appellant’s property, and, despite her frenzied pleas
to stop, connected a towing wrench to the middle unit of her residence, and towed the
unit away, causing the rest of the structure to collapse and destroying her home.
After a hearing, the magistrate court denied the Appellant’s motion to set aside
the default judgment on the grounds that a motion to set aside had to be filed within
30 days of the date the judgment was issued. The Appellant filed a petition for a writ
of certiorari in the superior court. In his answer to the petition, the magistrate court
judge stated that he “agreed that the Judgment and Fifa should be dismissed on [the
5
Appellant].” However, the magistrate court denied the motion because “the rules of
the Magistrate Court [do not authorize] any appeal on a Default Judgment and all
motions must be made within 30 days of Judgment.”
The superior court dismissed the Appellant’s petition for a writ of certiorari as
untimely, finding as follows:
OCGA § 15-10-41 (b) (2) states that “no appeal shall lie from a default
judgment” entered by a Magistrate Court. Review is by certiorari to the
state court or superior court of said county. OCGA § 5-4-6 states that
“all writs of certiorari shall be applied for within 30 days after the final
determination of the case in which the error is alleged to have been
committed. Applications made after 30 days are not timely and shall be
dismissed by the court.”4
This appeal followed.
“We review a trial court’s ruling on a motion to dismiss de novo, viewing all
allegations in the complaint as true. Thus, we owe no deference to a trial court’s
ruling on questions of law and review such issues de novo under the ‘plain legal
4
(Punctuation omitted.)
6
error’ standard of review.”5 With these guiding principles in mind, we turn now to the
Appellant’s specific claims of error.
1. The Appellant contends that the superior court erred in dismissing her
petition as untimely because she filed it within 30 days of the denial of her motion to
set aside the default judgment.
OCGA § 5-4-6 (a) provides: “All writs of certiorari shall be applied for within
30 days after the final determination of the case in which the error is alleged to have
been committed. Applications made after 30 days are not timely and shall be
dismissed by the court.”
The parties do not dispute that the Appellant filed her petition for a writ of
certiorari on October 6, 2014, which was not within 30 days of the January 18, 2013
default judgment, but was within 30 days of the September 5, 2014 order denying her
motion to set aside the default.6 Thus, the Appellant’s petition for certiorari was
timely filed.
5
Laskar v. Bd. of Regents of the Univ. System of Ga., 320 Ga. App. 414 (740
SE2d 179) (2013) (citations and additional punctuation omitted).
6
See OCGA § 1-3-1 (d) (3) (if the last day falls on Saturday or Sunday, the
party shall have through the following Monday).
7
We turn, therefore, to the issue of whether the denial of the Appellant’s motion
to set aside the default judgment was reviewable by the superior court. OCGA § 15-
10-41 governs appeals from magistrate court. “Subsection (b) (1) provides a general
right of appeal from magistrate court judgments to state or superior court, subject to
the exceptions set forth in subsection (b) (2), which by its terms, applies to review of
a default judgment or dismissal for want of prosecution or of motions to vacate those
orders.”7 OCGA § 15-10-41 (b) (2) provides:
No appeal shall lie from a default judgment or from a dismissal for want
of prosecution after a nonappearance of a plaintiff for trial. Any
voluntary dismissal by the plaintiff or by order of the court for want of
prosecution shall be without prejudice except that the filing of a second
such dismissal shall operate as an adjudication upon the merits. Review,
including review of a denial of a postjudgment motion to vacate a
judgment, shall be by certiorari to the state court of that county or to the
superior court of that county.8
Therefore, the superior court was authorized to review the denial of the Appellant’s
motion to set aside.
7
McKeever v. Scarver, 348 Ga. App. 12, 14-15 (821 SE2d 98) (2018).
8
(Emphasis supplied.)
8
Although proceedings in magistrate court are generally not subject to the Civil
Practice Act,9 “the magistrate court may grant relief from a judgment under the same
circumstances as the state court may grant such relief.”10 “[E]ntry of [a] default
judgment trigger[s] application of OCGA § 9-11-60 (d), which restricts to very
limited circumstances a court’s authority to set aside final judgments.”11 Under
OCGA § 9-11-60 (d) (1), however, “[a] motion to set aside may be brought to set
aside a judgment based upon [l]ack of jurisdiction over the person or the subject
matter[.]” “A judgment void because of lack of jurisdiction of the person or subject
matter may be attacked at any time.”12
Because the Appellant based her motion to set aside the judgment on lack of
personal jurisdiction, she could file it at any time under OCGA § 9-11-60 (f).
9
OCGA § 15-10-42.
10
OCGA § 15-10-43 (g).
11
Abushmais v. Erby, 282 Ga. 619, 621 (2) (652 SE2d 549) (2007).
12
OCGA § 9-11-60 (f) (emphasis supplied). But see Euler-Siac S. P. A.
(Creamer Spa) v. Drama Marble Co., 274 Ga. App. 252, 255 (1) (617 SE2d 203)
(2005) (“Although a motion to set aside judgment for lack of jurisdiction may be filed
at any time pursuant to OCGA § 9-11-60 (f), a waiver of the defenses of lack of
personal jurisdiction and venue occurs under OCGA § 9-11-12 (h) (1) (B) when a
Georgia resident who has received service of process fails to raise these defenses at
the earliest opportunity.”).
9
[R]egardless of whether a proceeding is in rem or in personam, due
process requires that a chosen method of service be reasonably certain
to give actual notice of the pendency of a proceeding to those parties
whose liberty or property interests may be adversely affected by the
proceeding. Because notice by publication is a notoriously unreliable
means of actually informing interested parties about pending suits, the
constitutional prerequisite for allowing such service when the addresses
of those parties are unknown is a showing that reasonable diligence has
been exercised in attempting to ascertain their whereabouts.13
Because the superior court found that the petition for certiorari was untimely,
we vacate the superior court’s judgment and remand the case to the superior court.
The superior court is directed to vacate the magistrate court’s denial of the motion to
set aside the judgment and remand the case for the magistrate court to address the
merits of the Appellant’s motion.14
2. Based on our holding in Division 1, we need not address the Appellant’s
remaining claims of error.
Judgment vacated and case remanded. Barnes, P. J., and McMillian, J.,
concur.
13
Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983).
14
See Floyd v. Gore, 251 Ga. App. 803, 805 (1) (555 SE2d 170) (2001) (noting
that, when considering a motion to set aside a judgment, “[t]he trial court first passes
upon the legality of notice[ ]” and whether reasonable diligence has been exercised).
10