Oxmoor Portfolio LLC v. Flooring and Tile Superstore of Conyers Inc.

The trial court erred in granting the garnishee's motion to set aside a default judgment because the garnishee failed to show a nonamendable defect appearing on the face of the record.

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Oxmoor Portfolio, LLC filed this interlocutory appeal from the trial court’s order granting a motion to set aside a default judgment in a garnishment proceeding, which motion was brought by Flooring and Tile Superstore of Conyers, Inc. “FTSC” pursuant to OCGA § 9-11-60 d 3. The issues in this appeal are 1 whether FTSC was required to satisfy the requirements of OCGA § 18-4-91 in order to bring its motion pursuant to OCGA § 9-11-60 d 3; and 2 whether the court erred in finding that FTSC showed a nonamendable defect appearing on the face of the record, as required by OCGA § 9-11-60 d 3. We hold that FTSC was not required to satisfy the requirements of OCGA § 18-4-91 in order to bring its motion pursuant to OCGA § 9-11-60 d 3, but that the trial court erred in finding that FTSC satisfied the nonamendable defect requirement of OCGA § 9-11-60 d 3. Therefore, we reverse the judgment of the trial court.

Oxmoor commenced a continuing garnishment action, naming FTSC as the garnishee and “Patrick D. Parker a/k/a Pat Parker” as the defendant. Oxmoor stated in its affidavit of continuing garnishment that the defendant was indebted to Oxmoor on a judgment and that FTSC was believed to be an employer of the defendant. FTSC was served with the summons on April 12, 2011, and the sheriff’s entry of service shows that service was made upon “Patrick Parker.” On May 26, 2011,1 an answer was filed on FTSC’s behalf, asserting therein that “Pat Parker” was not and had not been an employee of FTSC, and that FTSC possessed none of his assets. FTSC’s answer was signed by someone identified as the “Garnishee”2 ; the name was handwritten only and not legible. According to FTSC, the defendant’s son, also named Patrick D. Parker, filed the answer on behalf of FTSC. Oxmoor filed a traverse to the answer, asserting that FTSC’s answer was “untrue or legally insufficient.”

Oxmoor Portfolio LLC v. Flooring and Tile Superstore of Conyers Inc.

The trial court erred in granting the garnishee's motion to set aside a default judgment because the garnishee failed to show a nonamendable defect appearing on the face of the record.

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