Principal Lien Services, LLC v. Kimex Boat Rock 1183, LLC , 349 Ga. App. 511 ( 2019 )

THIRD DIVISION
GOBEIL,
COOMER, and HODGES, 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 14, 2019
In the Court of Appeals of Georgia
A18A1899. PRINCIPAL LIEN SERVICES, LLC v. KIMEX BOAT
ROCK 1183, LLC.
COOMER, Judge.
Principal Lien Services, LLC appeals from the trial court’s order modifying a
default garnishment judgment it obtained against Kimex Boat Rock 1183, LLC.
Because we find that the trial court properly modified the default garnishment in
accordance with OCGA § 18-4-24, we affirm its judgment.1
The relevant facts below show that Principal Lien Services, LLC (“PLS”)
obtained a default judgment against Kimex Boat Rock 1183, LLC (“Kimex”) in the
amount of $163,576.30 on November 29, 2017, after Kimex failed to answer a
1
We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of
considering the case en banc.
summons and continuing garnishment. Kimex was served with the default judgment
on December 7, 2017. On January 29, 2018, Kimex filed its “Motion to Void or
Modify Default Judgment,” stating that it had confirmed with the clerk of court that
there were no outstanding court costs, that it had no relationship with the plaintiff or
defendant in the case, and that it was improperly named as a garnishee. Kimex
requested that the trial court modify the default judgment, reducing it to $50, in
accordance with OCGA § 18-4-24.
Pursuant to OCGA § 18-4-24 (a),
[o]n a motion filed not later than 90 days from the date the garnishee
was served with such default judgment, the garnishee may, upon
payment of all accrued costs of court, have such default judgment
modified so that the amount of such default judgment shall be reduced
to an amount equal to the greater of $50.00 or $50.00 plus 100 percent
of the amount by which the garnishee was indebted to the defendant
from the time of service of the summons of garnishment through and
including the last day on which a timely garnishee answer could have
been made for all money or other property belonging to the defendant
which came into the garnishee’s hands from the time of service of the
summons through and including the last day on which a timely answer
could have been made and less any exemption allowed the defendant.
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It is undisputed that Kimex filed the motion and paid the accrued court costs within
90 days of service of the default judgment. In fact, the record shows that Kimex paid
the court costs on the 90th day prior to the entry of the court’s order modifying the
judgment. The issue on appeal is whether OCGA § 18-4-24 requires the payment of
court costs before the filing of a motion to modify, which PLS argues in it appellate
brief. In its reply brief, however, PLS reshapes its argument a bit, arguing that the
court costs must be paid before the statutory 90-day deadline, which in this case, fell
on the same day as the trial.
The trial court set a trial date of February 20, 2018, which was later reset to
March 6, 2018. On February 26, 2018, PLS filed its traverse and reply to Kimex’s
motion and a motion to dismiss for insufficiency of service of process, in which it
argued, among other things, that Kimex did not meet the statutory prerequisites set
forth in OCGA § 18-4-24. On the 90th day from service on Kimex, the trial court held
a trial. PLS’s counsel abandoned the insufficient service argument but maintained that
Kimex had not paid court costs, which amounted to $303 in filing fees. Kimex’s
counsel stated on record that no costs had been paid because the clerk had indicated
that none were pending. The trial court proceeded to take evidence on Kimex’s
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motion for attorney’s fees, and then took the matter under advisement. On the same
day at 12:54 p.m., Kimex paid the court costs and filed its notice of payment.
Later that day at 3:36 p.m., the trial court, unaware that the costs had already
been paid, entered its judgment modifying the default judgment and gave Kimex until
March 11, 2018, to pay the court costs, erroneously calculating that March 11th was
the 90th day from the service of the default judgment on Kimex. PLS filed an
application for discretionary appeal challenging the trial court’s order, which this
Court granted.
1. PLS first argues that the trial court erred by allowing the garnishee to pay
the court costs after the trial because payment of court costs is a prerequisite to filing
a motion to modify. The statute at issue, OCGA § 18-4-24, became effective on May
12, 2016, as a part of a new statutory scheme concerning garnishments, codified at
OCGA § 18-4-1 et seq. See Marks v. Soles, 339 Ga. App. 380, 387-399 (4) (a) (793
SE2d 587) (2016). PLS argues that for that reason, we must look to our courts’
interpretation of the predecessor statute, OCGA § 18-4-91, to determine whether
court costs must be filed before the motion to modify. The predecessor statute utilizes
the same language regarding the payment of costs but sets a 60-day time limit for
filing a motion, as opposed to the 90-day period afforded by the current statute.
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OCGA § 18-4-91 provided, in pertinent part, “on a motion filed not later than 60 days
from the date the garnishees receives actual notice of the entry of the judgment
against the garnishee, the garnishee may, upon payment of all accrued costs of court,
have the judgment modified.”
In some of the cases addressing this issue, we have held that the payment of
accrued courts costs is a prerequisite to filing a motion to modify judgment, while in
others, we have found that the costs must simply be paid within the time frame
provided in the statute. The statement that the payment of costs is a “prerequisite” to
filing a motion to modify originated in J.E.E.H. Enterprises, Inc. v. Montgomery
Ward & Co., 172 Ga. App. 58, 58 (1) (321 SE2d 800) (1984), a case in which the
garnishee completely failed to pay accrued court costs. Id. at 58. In support of its
ruling, this Court cited two cases. In Marler Oil Co. v. Citizens & Southern Bank, 153
Ga. App. 186 (265 SE2d 58) (1980), one of the cases cited, we affirmed the denial of
the timely filed motion to modify because accrued costs were paid 20 days after the
statutory period expired.2 In the other, Boston Sea Party v. Bryant &c. Co., 146 Ga.
App. 294, 296 (3) (246 SE2d 350) (1978), we affirmed the denial of the motion
2
See also Maley v. VanCronkite, 220 Ga. App. 21, 22 (1) (467 SE2d 351)
(1996), which relied on Marler, supra (where costs were paid 30 days after the 60-day
statutory period expired).
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because “garnishee has presented no evidence that it has satisfied the statutory
prerequisite of payment of accrued cost of court,” or other statutory requirements. See
also Cartwright v. Alpha Transportation Svc., Inc., 159 Ga. App. 296, 298 (283 SE2d
282) (1981), rev’d on other grounds, 248 Ga. 701 (285 SE2d 713) (1982) (denying
motion to modify default judgment proper where garnishee failed to pay accrued
costs). None of the aforementioned cases involved facts analogous to the instant case
wherein both the motion to modify and the payment of accrued costs occurred within
the statutory time period. In a more factually analogous case, Jova Daniels Busby,
Inc. v. Greenforest Community Baptist Church, Inc., 240 Ga. App. 419, 420 (523
SE2d 629) (1999), we reversed the denial of a motion to modify because the trial
court failed to conduct a hearing on the merits of the garnishment action, but we
noted that the garnishee “paid all court costs within 60 days of receiving notice of the
default judgment.” Because we have not yet expressly addressed this issue under the
factual scenario presented herein, the filing of the motion and subsequent payment
court costs all within the statutory period, we must turn to statutory construction to
assist in our analysis.
The cardinal rule of statutory construction requires this Court to
look diligently for the intention of the General Assembly, and the golden
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rule of statutory construction requires us to follow the literal language
of the statute unless it produces contradiction, absurdity, or such an
inconvenience as to insure that the legislature meant something else.
Judicial Council of Georgia v. Brown & Gallo, LLC, 288 Ga. 294, 296-297 (702
SE2d 894) (2010) (citations and punctuation omitted.) See also Carringer v. Rodgers,
276 Ga. 359, 363 (578 SE2d 841) (2003). Under the rules of statutory construction,
“we must afford the statutory text its plain and ordinary meaning, we must view the
statutory text in the context in which it appears, and we must read the statutory text
in its most natural and reasonable way, as an ordinary speaker of the English language
would.” Major v. State, 301 Ga. 147, 149 (1) (800 SE2d 348) (2017) (citation
omitted). When a statute’s text is “clear and unambiguous,” this Court will “attribute
to the statute its plain meaning” and the search for statutory meaning will end. Id. at
150 (citation omitted).
Although, as stated above, we have at times interpreted the statute to mean that
costs must be paid before the filing of the motion, the language of the statute does not
demand that conclusion. Again, OCGA § 18-4-24, in pertinent part, provides “on a
motion filed not later than 90 days from the date the garnishee was served with such
default judgment, the garnishee may, upon payment of all accrued costs of court, have
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such default judgment modified.” Thus, under the plain language of the statute, a
garnishee is not entitled to the relief it seeks (an order modifying the default
judgment) unless and until it has paid all accrued costs.
We have explained that the predecessor statute, OCGA § 18-4-91, which is
mirrored by the current statute, OCGA § 18-4-24, “is clearly remedial. It provides a
second chance for a garnishee who, having been personally served with a summons
of garnishment, ignored its call for an answer. A limited window of opportunity is
afforded such a garnishee through which it can reduce a debt imposed by its initial
inaction.” W. Ray Camp, Inc. v. Cavalry Portfolio Svcs., 308 Ga. App. 597, 599 (708
SE2d 560) (2011), citing Five Star Steel Contractors v. Colonial Credit Union, 208
Ga. App. 694, 696 (431 SE2d 712) (1993).
In light of the statute’s purpose, as long as the garnishee files the motion and
pays the accrued costs within the statutory period allowed and prior to the court’s
ruling on the motion, it should not lose the benefit of the window created by the
statute to allow it to reduce its debt. OCGA § 18-4-24 requires both the timely filing
of a motion to modify and the payment of accrued costs as statutory prerequisites to
modification of the default judgment. We now clarify that the statute does not require
the payment of costs before the filing of the motion. Therefore, to the extent that
8
J.E.E.H. Enterprises, Inc., 172 Ga. App. at 58 (1), Marler Oil Co. v. Citizens &
Southern Bank, 153 Ga. App. at 186, Boston Sea Party, 146 Ga. App. at 296 (3), and
Maley, 220 Ga. App. at 22 (1) can be construed to require the payment of costs as a
prerequisite to the actual filing of a motion to modify a default judgment in a
garnishment case, they are disapproved.
This reading of the statute is supported by case law interpreting OCGA § 9-11-
55 (b), which sets forth the requirements for moving to open a default where the time
to reopen as of right has expired. OCGA § 9-11-55 contains similar language to that
found in OCGA § 18-4-24, with subsection (b) providing:
At any time before final judgment, the court, in its discretion, upon
payment of costs, may allow the default to be opened for providential
cause preventing the filing of required pleadings or for excusable
negliect or where the judge, from all the facts, shall determine that a
proper case has been make for the default to be opened, on terms to be
fixed by the court.
OCGA § 9-11-55 (b) (emphasis supplied). In interpreting this language, our Supreme
Court specifically rejected the argument that a movant must pay the required costs at
the time it moves to open the default under subsection (b). McCracken v. College
Park, 259 Ga. 490, 490-491 (1) (384 SE2d 648) (1989). Instead, the court found that
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“the movant is only required to pay costs before the order granting the motion is
entered.” Id. at 491 (1). See also Copeland v. Carter, 247 Ga. 542, 542 (1) (277 SE2d
500) (1981) (trial court did not abuse its discretion in opening default where movant
paid costs after filing a motion to open default and the hearing on that motion but
“prior to the grant of said motion”); Suntrust Bank, S. Georgia, N. a. v. Perry, 233 Ga.
App. 701, 702 (505 SE2d 230) (1998) (same).
PLS argues that the payment of costs is a matter of abatement and a
jurisdictional prerequisite as it is under OCGA § 9-11-41 (d). We disagree and note
that the very language of OCGA § 9-11-41 (d) establishes that the legislature
intended the payment of accrued costs to be a prerequisite to commencement of an
action. That statute reads “[i]f a plaintiff who has dismissed an action in any court
commences an action based upon or including the same claim against the same
defendant, the plaintiff shall first pay the court costs of the action previously
dismissed.” Id. (emphasis added.) Had the legislature intended the same meaning
when it enacted OCGA § 18-4-24, as well as its predecessor, it could have done so,
as it did in OCGA § 9-11-41 (d).
2. In its next three enumerations of error, PLS raises procedural arguments that
do not warrant a result different from that reached by the trial court. PLS argues that
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the trial court erred in issuing a judgment reducing the 30-day statutory time period
to file an application for discretionary appeal since it gave Kimex until March 11,
2018, to pay court costs. Because the costs were paid on March 6, 2018, and the
application was timely filed and granted, this argument is moot. Next, PLS argues that
the trial court erred by supplementing the record with evidence that was not admitted
at trial, specifically the proof of payment of the costs. This argument, too, provides
no basis for relief since the costs were timely paid prior to the entry of the court’s
order, proof of payment was entered into the record when it was filed with the court,
and the trial judge did not consider the proof of payment when it issued its order. .
Lastly, PLS argues that the trial court erred because it allowed the garnishee to pay
the court costs beyond the 90-day statutory time limit. PLS is correct that the trial
court was not authorized to extend the time to pay the court costs beyond the 90-day
period, and had Kimex paid the costs one day later, the outcome here would be
different, for reasons fully discussed in Division 1. Nonetheless, a judgment that is
right for any reason will be affirmed on appeal. See Reed v. Reed, 295 Ga. 574, 578
(2) (761 SE2d 326) (2014). Accordingly, the trial court properly modified the
judgment since Kimex filed its motion to modify and paid the accrued court costs
before the 90-day statutory period expired and prior to the entry of the court’s order.
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Judgment affirmed. Gobeil and Hodges, JJ. concur.
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