GOBEIL, COOMER and HODGES, JJ.
Rae Rivers ("Ms. Rivers") appeals from the Gwinnett
County State Court's denial of her motion for default
judgment and dismissal for want of prosecution of her
continuing garnishment action against Steven Rivers
("defendant") and his employer Austin Commercial,
LP ("garnishee"). She argues that the trial court
erred in failing to enter a default judgment and in
dismissing the case for want of prosecution . We agree, and
we therefore vacate the trial court's order and remand
the case for further proceedings.
March 6, 2017, Ms. Rivers filed a continuing garnishment
action against the defendant and the garnishee based on a
2012 Florida judgment she holds against the defendant in the
amount of $590, 416.84, of which $547, 236.77 remains
outstanding. The trial court issued a summons of
continuing garnishment directing the garnishee
to immediately hold all money, including wages, and other
property, except what is known to be exempt, belonging to the
Defendant or obligations owed to the Defendant . . .
beginning on the day of service of this summons and including
the next 179 days. You are FURTHER COMMANDED to file your
answer, in writing, not later than 45 days from the date you
were served with th[e] summons. . . . Your answer shall state
what money, including wages, or other property, except what
is known to be exempt, belonging to the Defendant or
obligations owed to the Defendant you hold or owe beginning
on the day of service of this summons and between the time of
such service and the time of making your first answer.
Thereafter, you are required to file further answers no later
than 45 days after your last answer.
. . .
Should you fail to file Garnishee Answers as required by this
summons, a judgment by default will be rendered against you
for the amount remaining due on a judgment as shown in the
Plaintiff's Affidavit of Continuing Garnishment.
1, 2017, the garnishee filed its first answer, indicating
that none of the defendant's wages were subject to
continuing garnishment for the relevant pay period. The
garnishee further stated that the "Florida Support Order
garnishes maximum permissible amount of weekly disposable
earnings." It is undisputed that no further answers were
filed by the garnishee during the continuing garnishment
period, which ended on September 3, 2017.
on January 16, 2018, Ms. Rivers filed a motion for entry of a
default judgment, asserting that she was entitled to a
default judgment because the garnishee failed to file
subsequent answers as required under OCGA § 18-4-42. On
January 30, 2018, prior to the expiration of the time period
for the garnishee to file a response to the motion for
default judgment, the trial court issued an order denying the
motion for default judgment and dismissing the case for want
of prosecution. Specifically, the trial court found as
Plaintiff in the above-styled action filed a "Motion for
Default Judgment Against Garnishee" on JANUARY 16, 2018.
The garnishment action was filed by Plaintiff on MARCH 6,
2017 and the Summons and Affidavit of Continuing Garnishment
was served on the Garnishee on MARCH 8, 2017. Plaintiff
offers no reason in [her] Motion as to why [she] failed to
pursue and/or prosecute this action in a timely manner. By
operation of law, garnishments extend only to all debts,
effects owed by the garnishee to the defendant from the date
of service of the summons of continuing garnishment on the
Garnishee up to and including the 179th day thereafter.
See O.C.G.A. § 18-4-111. Plaintiff's Motion
must be denied and the case dismissed for want of
prosecution. See O.C.G.A. § 9-11-41. Ms. Rivers
filed an application for a discretionary appeal, which we
granted. This appeal followed.
review the trial court's denial of a motion for default
judgment and a dismissal for want of prosecution for an abuse
of discretion. See Barbour v. Sangha, 346 Ga.App.
13, 13 (815 S.E.2d 228) (2018) (providing standard of review
of denial of a motion for entry of a default judgment);
Roberts v. Eayrs, 297 Ga.App. 821, 821 (678 S.E.2d
535) (2009) (providing standard of review for dismissal of
case for want of prosecution). "An abuse of discretion
occurs where a ruling is unsupported by any evidence of
record or where that ruling misstates or misapplies the
relevant law." Lewis v. Lewis, 316 Ga.App. 67,
68 (728 S.E.2d 741) (2012) (citation and punctuation
omitted). Further, "where it is apparent that a trial
court's judgment rests on an erroneous legal theory, [we]
cannot affirm." Suarez v. Halbert, 246 Ga.App.
822, 824 (1) (543 S.E.2d 733) (2000) (citation and
punctuation omitted). However, to the extent this case
presents a question of law, the standard of review is
"de novo, during which we owe no deference to the trial
court's ruling and apply the plain legal error standard
of review." Hutcheson v. Elizabeth Brennan Antiques
& Interiors, Inc., 317 Ga.App. 123, 125 (730 S.E.2d
514) (2012) (citation and punctuation omitted).
Rivers argues that she was entitled to a default judgment as
a matter of law, pursuant to OCGA § 18-4-43 (a), and
that the trial court erred in denying her motion. We agree.
Georgia, garnishment statutes are in derogation of the common
law and, thus, must be strictly construed."
Principal Lien Services, LLC v. Nah Corporation, 346
Ga.App. 277, 279 (1) (814 S.E.2d 4) (2018) (citation,
footnote, and punctuation omitted). Where "a plaintiff
has obtained a money judgment against a defendant, the
plaintiff is entitled to file a garnishment action in a court
which has jurisdiction over the garnishee, the person or
entity which has in its possession money or property which
belongs to the defendant and is subject to garnishment."
Id. at 280 (1) (citation, footnote, and punctuation
omitted). In a continuing garnishment action, "[t]he
garnishment period shall begin on the day of service of the
summons of garnishment and . . . shall include the next 179
days." OCGA § 18-4-4 (c) (1). After filing an
initial answer, a garnishee must file subsequent answers at
least once every 45 days. Id. § 18-4-42 (d)
(1). "When a garnishee fails or refuses to file a
garnishee answer at least once every 45 days, such garnishee
shall automatically be in default." Id. §
18-4-43 (a). "The default may be opened as a matter of
right by the filing of a garnishee answer within 15 days of
the day of default and payment of costs." Id.
§ 18-4-21; see also OCGA § 18-4-43 (a)