RAMIREZ v. PIERRE (2026)

Jionel Pierre, as a purported assignee of Cadenas Ventures, LLC (“Cadenas”) sued Juan Ramirez and Big Sky Remodel and Construction, LLC (“Big Sky”) (collectively, “the Defendants,”) for breach of contract. After a default judgment was entered against the Defendants, the trial court denied the Defendants’ motion to set aside the judgment. The Defendants appeal, arguing that the trial court erred (1) by entering default judgment against them because Big Sky was never served; (2) by failing to set aside the judgment because it exceeded the amount of the purported assignment under which Pierre claimed; and (3) because Pierre lacked standing to bring the lawsuit. For the reasons that follow, we reverse in part, affirm in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

“This court will not reverse a trial court's ruling on a motion to set aside unless the trial court abused its discretion.” Endover Palisades, LLC v. Stuart, 324 Ga. App. 90, 91, 749 S.E.2d 381 (2013) (quotation marks omitted).

So viewed, the record reflects that in September 2021, Ramirez and Big Sky entered into a contract with Cadenas to remodel a residence in Powder Springs, Georgia. Although the Defendants completed some of the agreed upon repairs, disputes arose, and in December 2021, the Defendants abandoned the project.

In May 2022, Pierre sued the Defendants for breach of the remodeling contract, alleging that he was an assignee of Cadenas's interest in the contract. Pierre claimed that the Defendants had charged $85,000 under the contract and that the cost of hiring another contractor to finish the project was $100,000. In June 2022, Ramirez was personally served with a copy of the complaint and summons. However, neither Ramirez nor Big Sky ever filed an answer or other responsive pleading. In July 2022, Pierre filed a motion for default judgment against the Defendants. Attached to the motion was a copy of an assignment agreement purportedly executed on May 1, 2022, under which Pierre claimed Cadenas's interest in the remodeling contract. The purported assignment agreement contained a clause stating that Cadenas was “owed a sum of money not to exceed $100,000.00 USD” pursuant to its contract with the Defendants.

In November 2022, the trial court issued a rule nisi for a hearing on Pierre's motion for default judgment. The certificate of service for the rule nisi indicates that it was served on Ramirez, but not Big Sky. The record contains no transcript of this hearing, and there is no indication of whether it occurred or what parties were in attendance if it did. Nevertheless, in December 2022, the trial court entered an order finding the Defendants in default and adjudging them liable to Pierre in the amount of $186,000. The trial court's order did not specify whether there had been a hearing on the issues of the Defendants’ default and damages, and the order is devoid of any findings as to the basis for the damage award.

In July 2023, the trial court issued a writ of fieri facias against the Defendants, and Pierre propounded post-judgment discovery requests to the Defendants. In July 2024, the Defendants moved to set aside the December 2022 judgment, arguing that Big Sky was never served with a copy of the complaint and that Pierre lacked standing to bring the lawsuit because he had not attached a copy of the purported assignment agreement to the complaint. Pierre responded in opposition to the motion, arguing that “[t]he Defendant” had been properly served and that he had standing to bring the lawsuit because the assignment agreement had purportedly been executed prior to the filing of the complaint. Attached to the response was a copy of the entry of service for Ramirez, but Pierre produced no evidence of service on Big Sky.

In November 2024, the trial court entered an order denying the Defendants’ motion to set aside the default judgment. In its order, the trial court ruled that the Defendants’ argument that Pierre lacked standing was not timely raised and, in any event, was meritless because the purported assignment agreement allowed Pierre to assert Cadenas's interest under the contract. The order, however, did not address the Defendants’ assertion that Big Sky had never been properly served with the lawsuit.

The Defendants initially appealed from the trial court's order denying their motion to set aside in December 2024. In March 2025, this Court dismissed the appeal as interlocutory because post-judgment discovery proceedings remained pending in the trial court. On remittitur, Pierre filed a motion for a post-judgment injunction and a motion for contempt and sanctions, claiming that the Defendants had received money for the sale of the subject property but had failed to satisfy the fieri facias lien. Pierre also filed a motion to set aside the purported sale. After a hearing, the trial court denied Pierre's motions, ruling that Pierre already had an adequate remedy at law and that sanctions were not warranted. The Defendants then timely filed an application for discretionary appeal, which we granted, and this appeal followed.

1. The Defendants contend that the trial court erred by denying their motion to set aside the default judgment because Big Sky was never served. We agree.

Under OCGA § 9-11-60(d)(1), a motion to set aside a judgment may be based upon lack of jurisdiction over the person[.] ․ Under OCGA § 9-11-60(f), a judgment void because of lack of jurisdiction of the person ․ may be attacked at any time. Lack of jurisdiction of the person usually arises from one of two defects: invalidity of service or faulty venue.

Endover Palisades, LLC, 324 Ga. App. at 92(1), 749 S.E.2d 381 (punctuation omitted).

Service of process on a corporate defendant requires the summons and complaint to be delivered to “the president or other officer of such corporation[,] ․ a managing agent thereof, or a registered agent thereof[.]” OCGA § 9-11-4(e)(1)(A). Here, the only return of service in the record shows that service of the lawsuit was made on Ramirez without identifying him as related to Big Sky in any capacity. Nothing in the record indicates that Ramirez was authorized to accept service on behalf of Big Sky as its president, officer, or agent. Even assuming that Ramirez is the president of Big Sky, the record fails to show that he was served in that capacity. See Kidd v. First Commerce Bank, 264 Ga. App. 536, 537(1), 591 S.E.2d 369 (2003) (“[W]hen a return of service has not been filed showing service upon the corporate defendant, proof of service on the president is inadequate.”). Under these circumstances, the trial court never obtained personal jurisdiction over Big Sky, and thus, the default judgment entered against Big Sky is void.

Nevertheless, lack of jurisdiction based on deficient service is waivable. See Endover Palisades, LLC, 324 Ga. App. at 92(1), 749 S.E.2d 381. “When a defendant appears and wishes to contend that service of process is insufficient and that, as a result, the court lacks personal jurisdiction of his person, he must raise the issue in his first responsive pleading or motion, and if he does not, he waives it.” Merry v. Robinson, 313 Ga. App. 321, 322(1), 721 S.E.2d 567 (2011).

Here, after the entry of the default judgment, the Defendants filed a motion to set aside the judgment as their first responsive pleading to the merits of the case. Although the motion does not specifically argue lack of service and personal jurisdiction, it explicitly states in its statement of facts that Big Sky was never served. This was sufficient to preserve the objection. See id. at 322-23(1), 721 S.E.2d 567 ([A defendant may] preserve[ ] his objections to the sufficiency of service and personal jurisdiction ․ by appearing only after judgment and raising them in a motion to set aside the judgment.”).

Because the trial court was without personal jurisdiction of Big Sky due to lack of service, and because this objection was not waived, the trial court's entry of default judgment as to Big Sky was reversible error.

In a related argument, the Defendants assert that in the absence of a valid default judgment against Big Sky, the entry of default judgment against Ramirez was premature. We agree.

If the alleged liability is joint[,] a default judgment should not be entered against a defaulting defendant until all of the defendants have defaulted; or if one or more do not default then, as a general proposition, entry of judgment should await an adjudication as to the liability of the non-defaulting defendant(s).

Stasco Mech. Contractors, Inc. v. Williamson, 157 Ga. App. 545, 546, 278 S.E.2d 127 (1981) (punctuation and quotation marks omitted).

Here, Pierre's complaint alleged that Ramirez and Big Sky were “jointly and severally” liable for breach of contract. “Since [Ramirez] did not answer the complaint, [his] default operated as an admission of ․ joint and several liability as to the contract[.]” Id. at 545, 278 S.E.2d 127. While the trial court's finding of default against Ramirez was proper, the entry of judgment thereon was premature. See id. at 545-46, 278 S.E.2d 127 (“The only issue which remained to be determined [after the defendants’ default] was the amount, if any, of the damages[.]”). Accordingly, we vacate the trial court's order to the extent that it entered a judgment and awarded damages based on Ramirez's default.

2. The Defendants contend that the trial court erred by failing to set aside the judgment because it exceeded the amount of the purported assignment under which Pierre claimed. We agree.

“An assignee stands in the shoes of its assignor, and thus obtains no greater rights than the assignor possessed at the time of the assignment.” Cline Drive Land Trust v. Wells Fargo Bank, N.A., 339 Ga. App. 342, 345 n. 4, 793 S.E.2d 550 (2016) (quotation marks omitted). Here, the purported assignment agreement under which Pierre claimed an interest in Cadenas's contract with the Defendants explicitly limited Cadenas's recovery under the contract to $100,000. The trial court's order entering judgment did not mention the purported assignment or this limitation. Thus, on remand, the trial court is directed to consider the limitation placed on Pierre's recovery under the purported assignment agreement before entering any award of damages against Ramirez based on his default.

Relatedly, the Defendants argue that the trial court erred by entering a damage award against the Defendants without stating the basis for the award. We agree.

“Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 296(2), 750 S.E.2d 378 (2013) (quotation marks omitted). Even “[i]f a case is ․ in default[,] ․ [if] the action involves unliquidated damages, ․ the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury[.]” Wise Moving & Storage, Inc. v. Rieser-Roth, 259 Ga. App. 832, 834(2), 578 S.E.2d 535 (2003). See also OCGA § 9-11-55(a).

Pierre's claimed damages were unliquidated. And it is unclear from the record whether he introduced evidence as to the amount of damages at a hearing before default judgment was entered, or whether a hearing was even held. Under these circumstances, and in light of the assignment agreement discussed above, we vacate the damage award and remand the case for the trial court to determine whether such a hearing was held, what evidence supported the damage award, and if applicable, why such an award would be able exceed the $100,000 limitation placed on Pierre's available recovery by the purported assignment under which he claimed. See id. (holding that because the record was unclear as to whether, following the defendant's default, a hearing was held to ascertain the amount of damages, remand was required).

3. Finally, the Defendants contend that the trial court erred by denying their motion to set aside the default judgment because Pierre did not have standing to bring the lawsuit in the first place. This contention fails.

“[A] plaintiff must have standing on the date that his or her action is filed. Subsequent amendments of a complaint which seek to confer standing based on events occurring after the initial complaint was filed cannot cure this jurisdictional defect.” Perdue v. Lake, 282 Ga. 348, 349(2)(a), 647 S.E.2d 6 (2007).

Here, although Pierre did not attach a copy of the purported assignment agreement to his complaint, which was filed on May 17, 2022, the assignment agreement was purportedly executed on May 1, 2022, prior to the filing of the complaint. Thus, pursuant to the purported assignment agreement, Pierre had standing on the date his action was filed, and the trial court did not err by denying the Defendants’ motion to set aside the default judgment on this ground.¹

To recapitulate, we reverse the trial court's finding of default, entry of judgment, and damage award against Big Sky, and we affirm the trial court's finding of default as to Ramirez but vacate the entry of judgment and damage award against him and remand the case for further proceedings consistent with the opinion.

Judgment affirmed in part, reversed in part, vacated in part, and case remanded.

FOOTNOTES

1.   Although we hold that the existence of the purported assignment agreement confers standing on Pierre to bring this lawsuit, we do not pass on the legal sufficiency of the terms of the purported assignment, including the $100,000 limitation on recovery.

Doyle, Presiding Judge.

Davis and Whitaker, JJ., concur.