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Jorree v. PMB Rentals, LLC

Court of Appeals of Georgia, First Division

March 11, 2019


          BARNES, P. J., MCMILLIAN and REESE, JJ.

          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 Joree[1] (collectively, the "defendants"), alleging in Counts 1, 2, and 3 claims of breach of contract against 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 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] 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 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 Appellant]." However, the magistrate court denied the motion because "the rules of the ...

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