Ameriprise Holdings, Inc. v. McCampbell

899 S.E.2d 509

AMERIPRISE HOLDINGS, INC.

v.Kathy MCCAMPBELL, as Surviving Child of Etta McCampbell, et al.

A23A1736

Court of Appeals of Georgia.

March 12, 2024

Reconsideration Denied March 26, 2024

Thomas M. Byrne, Stacey McGavin Mohr, Samantha N. Darnell, Atlanta, for Appellant.

Andrew C. Evans, Atlanta, for Appellee.

Doyle, Presiding Judge.

This appeal arises from the denial of a motion to set aside a default judgment filed by Ameriprise Holdings, Inc. ("AHI"), in a garnishment proceeding filed by Kathy McCampbell ("McCampbell"), as daughter and survivor of Etta McCampbell. AHI appeals, arguing that (1) the trial court abused its discretion by entering a default judgment against AHI and by denying AHI’s motion to set aside default under OCGA § 9-11-60 because McCampbell used the incorrect form when instigating the garnishment against it; and (2) the trial court abused its discretion by refusing to set aside the default judgment because it violates the Due Process and Excessive Fines Clauses of the United States Constitution. For the reasons that follow, we reverse.

[1, 2] "Absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a default judgment."¹ Nevertheless, the standard of review for a question of law on appeal is de novo for which this Court owes "no deference to the trial court’s [legal] ruling and appl[ies] the plain legal error standard of review."²

The record shows that Etta McCampbell was catastrophically injured at a nursing home, and McCampbell thereafter obtained a judgment against the nursing home — Brentwood Healthcare Holdings, LLC ("Brentwood"), — for $3,412,979.45. On May 28, 2019, McCampbell filed a "Summons of Garnishment on a Financial Institution," against 20 garnishees,³ including AHI. On May 31, 2019, AHI was served the summons of garnishment, as well as an attachment for summons of garnishment on a financial institution, an affidavit, a notice to defendant of right against garnishment of money including wages and other property, a defendant claim form, and financial institution garnishee answer.

AHI received the summons of garnishment, but rather than file a special appearance or answer in the case before the superior court, on June 4, 2019, AHI purportedly sent a letter to McCampbell’s counsel.⁴ On July 10, 2019, McCampbell filed a motion for default judgment against the garnishees, including AHI, that had failed to answer within the statutory 15 day period after service.⁵

On November 13, 2019, the trial court entered a default judgment against the 13 garnishees who did not answer within 15 days of service. The default judgment was served on AHI and the other garnishees on November 26, 2019, giving them 90 days to file a motion and court fees to reduce the judgment to $50 "plus 100 percent of the amount by which the garnishee was indebted to the defendant, including all money or other property belonging to the defendant."⁶ On December 2, 2019, a letter from Ameriprise Financial Services was filed with the court. That letter stated:

Re: Summons of Garnishment

Debtor: Brentwood Healthcare Holdings Inc.

Directed To: Ameriprise Holdings Inc. …

Please be advised that we have searched our records and are unable to locate the above Taxpayer(s) as a client with any of the Ameriprise Financial Companies. Therefore, we are unable to process the above referenced Summons of Garnishment. If you have any other information that you could give us, we will check our records again.

The record does not show that AHI otherwise responded or moved to open, modify, or set aside the default judgment during the 90-day statutory period.

Approximately three years later, on February 6, 2023, AHI moved to set aside the default judgment under OCGA § 9-11-60 because the judgment was a "result of Plaintiffs fraud or mistake, and to let the judgment stand would deprive [AHI] of its constitutional right to due process."⁷ Attached to the motion was the affidavit of a corporate representative of Ameriprise Financial, Inc., who averred that AHI

is not a state or federal chartered commercial or savings bank, it holds no customer accounts or property, and it does not advertise itself as a place of deposit of funds or medium of savings or collective investment. AHI is not a savings and loan association, cooperative bank, federal or state chartered credit union, benefit association, insurance company, safe-deposit company, trust company, or money market mutual fund…. None of the business activities in which AHI is engaged involve the holding of any customer accounts or property. AHI is not in the business of maintaining customer accounts or holding customer property

McCampbell responded, arguing that AHI had waived its right to challenge the default judgment because it did not raise the issues through a motion during the 90-day window to modify default, despite AHI filing an untimely answer to the trial court after it was served with the default judgment in November 2019. On April 12, 2023, the trial court denied AHI’s motion to set aside the default judgment, summarily finding that the default judgment was properly ordered against AHI, and that AHI failed to timely move to open default under OCGA § 18-4-24.

[3] 1. As an initial matter, McCampbell argues that this appeal should be dismissed because the default judgment was not a final order, the order denying AHI’s motion to set aside default was also not a final order, and AHI should have followed appropriate interlocutory appeal procedure pursuant to OCGA § 5-6-34 (b).

Following the trial court’s denial of its motion to set aside the default judgment, AHI filed a discretionary application in this Court. This Court granted that application despite McCampbell’s contention that the order denying the motion to set aside the default judgment and the default judgment order were not final because at least two other defendants remained in the case below. This Court noted that it was unclear from the application materials whether other claims against other defendants remained outstanding in the garnishment proceeding. Based on our review of the record, however, there does not appear to be any outstanding case against any other defendant because the trial court entered default judgment against every garnishee that failed to file an answer by the fifteenth day after service of the summons of garnishment.⁸ Accordingly, McCampbell’s jurisdictional argument is without merit.

[4] 2. AHI argues that the trial court abused its discretion by entering default and denying its motion to set aside default under OCGA § 9-11-60 because McCampbell served it with the incorrect garnishment summons, one directed to a financial institution as opposed to a general garnishment summons. We agree.

Prior to 2016, Georgia’s garnishment statute "provided only for a general garnishment."⁹ Effective May 12, 2016, however, the General Assembly enacted a new chapter governing garnishments.¹⁰ The 2016 garnishment statute creates a new category of garnishments — garnishments "served on financial institutions."¹¹ A financial institution is defined as

every federal or state chartered commercial or savings bank, including savings and loan associations and cooperative banks, federal or state chartered credit unions, benefit associations, insurance companies, safe-deposit companies, trust companies, any money market mutual fund, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.¹²

The 2016 statute also requires different forms for summons of garnishment depending on the type of garnishee — the form for a summons of general garnishment does not vary greatly from the form for a financial institution garnishee used by McCampbell¹³ — nevertheless, the law provides that if "a plaintiff uses the incorrect form for a summons of garnishment of any type, the garnishment shall not be valid and the garnishee shall be relieved of all liability."¹⁴

[5] As with prior garnishment statutes, if a garnishee fails to file an answer within 15 days of service of the garnishment summons, then default occurs as a matter of right.¹⁵ Thereafter,

[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 any costs paid by the plaintiff to the clerk of court for the initiation of the action, and service on the garnishee, have such default judgment modified so that the amount of such default judgment shall be reduced to an amount equal to $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant, including all money or other property belonging to the defendant which came into the garnishee’s hands….¹⁶

In Oxmoor Portfolio v. Flooring & Tile Superstore of Conyers,¹⁷ this Court addressed the same argument now raised by McCampbell in relation to the previous iteration of this statutory scheme — that a garnishee may not move to set aside a default judgment under OCGA § 9-11-60 without having first answered or moved to modify the judgment under the garnishment statute. In that case, the plaintiff argued the former OCGA § 18-4-91 — the statute allowing for modification of a garnishment default judgment within a date certain by filing a motion and paying certain fees — was a mandatory prerequisite to filing a motion to set aside default judgment of a garnishment under OCGA § 9-11-60.¹⁸ This Court disagreed, explaining that

[n]o language in either [former] OCGA § 18-4-91 or OCGA § 9-11-60 requires a party to comply with [former] OCGA § 18-4-91 as a precondition to obtaining relief pursuant to OCGA § 9-11-60…. [T]he twostatutes serve different purposes. [Former] OCGA § 18-4-91 specifically provides a procedure for a garnishee to have a judgment entered against it modified, while OCGA § 9-11-60 specifically provides a procedure for a garnishee to have a judgment entered against it set aside.¹⁹

OCGA § 18-4-24 is largely the same as former ...