Smart Venture Capital, LLC v. River Mansions Property Association, Inc.

FIFTH DIVISION
                             BROWN, C. J.,
                      RICKMAN, P. J., and MERCIER, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              https://www.gaappeals.us/rules



                                                                     April 21, 2026




In the Court of Appeals of Georgia
 A26A0540. SMART VENTURE CAPITAL, LLC v. RIVER
     MANSIONS PROPERTY ASSOCIATION, INC.

      MERCIER, Judge.

      Smart Venture Capital, LLC (“Smart Venture”) appeals from the trial court’s

order dismissing its notice of appeal in this matter. For reasons that follow, we

reverse.

      The record shows that, in May 2020, River Mansions Property Owners

Association, Inc. (“the Association”) sued Viren Patel and Anupama Patel for

damages and judicial foreclosure relating to the Patels’ alleged failure to pay

association assessments on property located in Duluth. On October 9, 2020, the

Association filed an amended complaint adding Smart Venture — which held a

security deed on the Patel property — as a defendant to the lawsuit. A private process
server attempted to serve Smart Venture’s registered agent three times at the

corporation’s principal address, but service was unsuccessful.

      On December 2, 2022, the process server filed an affidavit describing her

service efforts. That same day, the Association’s counsel filed an affidavit stating that

the Association had exercised diligence in attempting to perfect service through a

process server, but had been unsuccessful. Counsel further averred that he had served

Smart Venture pursuant to OCGA § 14-11-1108 by mailing the amended complaint

and accompanying documents to Smart Venture’s office by certified mail, return

receipt requested. Smart Venture did not answer the complaint, and, on July 22, 2021,

the Association moved for default judgment. The trial court granted the motion on

January 11, 2022, authorized the Association to initiate foreclosure proceedings on the

property, and cancelled Smart Venture’s security deed.1

      On August 13, 2024, Smart Venture moved to set aside the default judgment

pursuant to OCGA § 9-11-60(d)(1), asserting that it had not been served with process.

In support of the motion, Smart Venture submitted the affidavit of its registered agent,

      1
         The trial court also granted default judgment as to Anupama Patel in the
amount of $9,451.46, and, in a separate order, granted the Association summary
judgment against Viren Patel in the amount of $8,535.44. Those orders are not at issue
in this appeal.
                                           2
who averred that she was never served with the lawsuit, did not receive any mail

(certified or otherwise) from the Association or its counsel during the relevant time

period, and “was not aware of this lawsuit until recently.”

      The trial court denied the motion to set aside following a hearing held on

December 9, 2024, concluding that the Association exercised reasonable diligence in

attempting service through a private process server, then properly served Smart

Venture via certified mail pursuant to OCGA § 14-11-1108. We granted Smart

Venture’s application for discretionary review of that ruling, and Smart Venture filed

its notice of appeal on March 3, 2025, specifying that the transcript from the

December 9, 2024 hearing be included in the appellate record.

      In an effort to secure the December 9 transcript, Smart Venture reached out to

the trial court on March 4, 2025, seeking contact information for the court reporter.

The trial court responded with the information that same day. On March 18, 2025,

Smart Venture requested that the court reporter prepare the transcript. After back and

forth communication about completing payment, the court reporter informed Smart

Venture on March 29, 2025, that she would “review [her] production queue” and let

Smart Venture know when the transcript would be ready. She also indicated that


                                          3
transcript preparation was on a “first come, first served basis as deposits are

received” and that she had received numerous deposits prior to Smart Venture’s

payment. Ultimately, the transcript was filed on April 14, 2025.

      The day before that filing, on April 13, 2025, the Association moved to dismiss

the notice of appeal for failure to timely file the transcript, asserting that Smart

Venture had missed the 30-day statutory deadline for submitting the transcript by 12

days and had not requested an extension of time. The trial court granted the motion

and dismissed the appeal. It concluded that Smart Venture’s 12-day delay was

inexcusable and unreasonable. In finding unreasonableness, the trial court determined,

in particular, that the delay held up the docketing of the appeal, preventing it from

being placed on the earliest possible appellate calendar, thereby prejudicing the

Association. This appeal followed.

      1. Pursuant to OCGA § 5-6-42:

      Where there is a transcript of evidence and proceedings to be included
      in the record on appeal, the appellant shall cause the transcript to be
      prepared and filed .... The party having the responsibility of filing the
      transcript shall cause it to be filed within 30 days after filing of the notice
      of appeal or designation by appellee, as the case may be, unless the time
      is extended[.]


                                            4
      An appeal generally should not be dismissed “because of failure of any party to

cause the transcript of evidence and proceedings to be filed within the time allowed

by law or order of court.” OCGA § 5-6-48(c); see also OCGA § 5-6-48(f) (“An appeal

shall not be dismissed ... because of failure of the court reporter to file the transcript

of evidence and proceedings within the time allowed by law or order of court unless

it affirmatively appears from the record that the failure was caused by the appellant.”).

After notice and the opportunity for a hearing, however, a trial court may dismiss a

party’s appeal “where there has been an unreasonable delay in the filing of the

transcript and it is shown that the delay was inexcusable and was caused by such

party.” OCGA § 5-6-48(c).

      In this regard, “whether the delay was unreasonable presents a threshold issue

which refers principally to the length and effect of the delay.” Fulton County Bd. of

Tax Assessors v. Love, 289 Ga. App. 252, 254 (656 SE2d 576) (2008) (quotation marks

omitted). A trial court has discretion in determining whether a delay is unreasonable

and inexcusable, and we will not reverse that determination absent an abuse of

discretion. See id. We must keep in mind, however, that the 30-day filing requirement

in OCGA § 5-6-42 is not jurisdictional. See id. Rather, it is “a means to avoid delay


                                            5
so the case can be presented on the earliest possible calendar in the appellate court[.]”

Id. An appellant’s failure to strictly comply with the requirement, therefore, does not

justify dismissal of the appeal “unless the delay is unreasonable so as to affect the

appeal itself.” Id. (quotation marks omitted). In other words, “[w]here the delay in

filing the transcript does not discernibly delay the docketing of the record in the

appellate court, and does not prevent an appellate decision on the merits at the earliest

possible date, the delay is not unreasonable.” Id.

      Without dispute, the transcript was filed 12 days after the statutory deadline

expired on April 2, 2025, and Smart Venture never requested an extension of time.

The trial court deemed this delay unreasonable after concluding that it negatively

impacted the appellate schedule. According to the trial court, if the appeal had been

transferred to this Court on April 2, 2025, we would have docketed it to the term

preceding the term to which the appeal would have been docketed if transmitted on

April 14, 2025.

      The trial court based its finding on the fact that this Court’s April term begins

on the first Monday in April, which, in 2025, was April 7, 2025. See Court of Appeals

Rule 12(2). The trial court’s interpretation of our docketing procedure, however, was


                                           6
incorrect. The December/Winter 2025 term ended on March 31, 2025. See OCGA

§ 15-2-4(c). Appeals received from that date to the end of the April 2025 term (July

17, 2025, see id.) would have been docketed to the same term. The filing delay

between April 2, 2025, and April 14, 2025, therefore, did not impact the term to which

the appeal would have been docketed.

       Moreover, even if April 7, 2025, constituted the demarcation date with respect

to docketing in this Court, a trial court clerk generally has five days after the filing of

the transcript to send the appellate record to us. See OCGA § 5-6-43(a). Given this

five-day window (which the trial court clerk may extend if necessary, see id.), there

is no guarantee that, had the transcript been filed on April 2, 2025, the record would

have been transmitted to this Court and docketed before the April term began on April

7, 2025. See Fulton County Bd. of Tax Assessors, 289 Ga. App. at 255 (“it is pure

speculation to conclude that, if the transcript had been filed as part of the record 11

days earlier, the trial court clerk would have prepared and transmitted the entire

record to this Court” by a particular date).

       Simply put, the record does not support the trial court’s conclusion that the

minimal delay in filing the December 9, 2024 transcript impacted the appellate


                                             7
schedule. Accordingly, the trial court abused its discretion in finding the delay

unreasonable, and we reverse the dismissal of Smart Venture’s notice of appeal. See

Fulton County Bd. of Tax Assessors, 289 Ga. App. at 255 (because the trial court abused

its discretion in finding appellant’s 11-day delay in filing the transcript unreasonable,

dismissal of appeal was error); Galletta v. Hillcrest Abbey West, 185 Ga. App. 20,

22–23(1) (363 SE2d 265) (1987) (trial court erred in dismissing appeal where 11-day

delay in filing transcript did not prevent the placement of the case on the earliest

possible appellate calendar or delay the docketing of the appeal).

       2. Having reversed the order dismissing Smart Venture’s notice of appeal, we

will now address the merits of the underlying appeal, through which Smart Venture

challenges the denial of its motion to set aside the default judgment.2 See Patel v. Patel,

342 Ga. App. 81, 89(2) (802 SE2d 871) (2017) (addressing merits of underlying appeal

after reversing dismissal of notice of appeal). “We review a trial court’s refusal to set


       2
         The Association suggests that the order denying the motion to set aside is not
properly before us “at this time[.]” Both parties, however, thoroughly briefed the
issues relating to that order, and we see no reason to remand this case to the trial court
so that it can return the appeal to us for resolution. See Patel, 342 Ga. App. at 89(2).
Compare Hill v. Bd. of Regents of the Univ. Sys. of Ga., 346 Ga. App. 830, 832 (816
SE2d 296) (2018) (declining to address underlying appeal after reversing dismissal of
notice of appeal where parties had not briefed the issues raised in that appeal).
                                            8
aside a default judgment for an abuse of discretion, but review questions of law de

novo.” Anglin v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 362, 363 (823 SE2d 51)

(2019) (quotation marks omitted).

      Smart Venture moved to set aside the judgment pursuant to OCGA § 9-11-

60(d)(1), which authorizes a motion to set aside based upon “[l]ack of jurisdiction

over the person or the subject matter[.]” Specifically, Smart Venture argued below

— as it does on appeal — that the default judgment must be set aside because the

Association never properly served it with the lawsuit. We agree.

      The Association purportedly served Smart Venture through the certified mail

procedure outlined in OCGA § 14-11-1108(a):

      If a limited liability company has no registered agent or the agent cannot
      with reasonable diligence be served, the limited liability company may be
      served by registered or certified mail or statutory overnight delivery,
      return receipt requested, addressed to the limited liability company at its
      principal office. Service is perfected under the immediately preceding
      sentence at the earliest of:


      (1) The date the limited liability company receives the mail;


      (2) The date shown on the return receipt, if signed on behalf of the
      limited liability company; or

                                          9
      (3) Five days after its deposit in the mail, as evidenced by the postmark,
      if mailed postage prepaid and correctly addressed.


      Asserting that it exercised reasonable diligence in attempting to locate and serve

Smart Venture’s registered agent, the Association claims that it ultimately perfected

service by mailing the summons, complaint, and other documents to Smart Venture

by certified mail on December 2, 2020. Smart Venture’s registered agent, however,

averred that she never received the certified mailing. The Association has pointed to

no contrary evidence indicating that Smart Venture received the mail or signed the

certified mail return receipt, circumstances that would support a finding of perfected

service. See OCGA § 14-11-1108(a)(1)-(2). And although proof of receipt is not

required to establish service under OCGA § 14-11-1108(a)(3), that subsection provides

that service is perfected five days after mailing, “as evidenced by the postmark[.]”

(emphasis supplied).

      When interpreting a statute, we apply the fundamental rules of statutory

construction, which require us, among other things, “to give words their plain and

ordinary meaning[.]” Gonzalez v. Miller, 320 Ga. 170, 177(3)(a) (907 SE2d 859)

(2024). A “postmark” is “[a] stamp or mark put on letters received at the post office


                                          10
for transmission through the mail.” Abbott Constr. Co. v. Hartsfield, 237 Ga. 247,

247–48 (227 SE2d 254) (1976) (quotation marks omitted); see also Kicklighter v.

Blocker, 164 Ga. App. 306, 308(1) (297 SE2d 83) (1982) (same). It is “[a]n official

mark put by the post office on an item of mail to cancel the stamp and to indicate the

place and date of sending or receipt.” Black’s Law Dictionary (12th ed. 2024).

Counsel for the Association testified by affidavit that he mailed the documents to

Smart Venture by certified mail, and he attached to his affidavit a copy of a cover

letter dated December 2, 2020, as well as a copy of the certified mail receipt. That

receipt, however, does not reflect a postmark,3 and we have found no other

postmarked evidence in the record.

      “A suit commences only after the filing of a petition and the proper service of

process upon the defendant as required and authorized by law.” Anglin, 348 Ga. App.

at 364(1) (quotation marks omitted). The record contains no evidence that the

Association served Smart Venture with the lawsuit. The Association attempted to

      3
        In its order denying Smart Venture’s motion to set aside, the trial court found
that the certified mail receipt included “a post mark ... evidencing mailing.” The
record does not support this finding. See Anglin, 348 Ga. App. at 364 (reviewing trial
court’s factual findings on a motion to set aside under the any evidence standard).
Although the receipt appears to reflect a stamp from a private postage meter, it
contains no mark from the United States Post Office.
                                          11
perfect service through certified mail pursuant to OCGA § 14-11-1108(a). But nothing

indicates that Smart Venture received the mailing, that Smart Venture signed the

return receipt, or that the mailing was postmarked. In fact, the record shows the

opposite, as Smart Venture’s registered agent denied receipt of or knowledge of the

suit, and the certified mail receipt lacks a postmark.

      None of the circumstances for perfecting service under OCGA § 14-11-1108(a)

occurred here. Accordingly, because Smart Venture was never properly served, the

trial court erred in denying Smart Venture’s motion to set aside the default judgment.4

See Anglin, 348 Ga. App. at 366(1) (trial court erred in denying motion to set aside

default judgment where service on defendant not perfected); Vasile v. Addo, 341 Ga.

App. 236, 242(2) (800 SE2d 1) (2017) (same).

      Judgment reversed. Brown, C. J., and Rickman, P. J., concur.




      4
        As further support for denying the motion to set aside, the trial court’s order
suggests that the motion was untimely, stating that Smart Venture “had ample
opportunity to assert its challenge of the [default] [j]udgment more promptly than 2.5
years after the fact.” Smart Venture’s motion was not untimely. Motions to set aside
generally must be filed within three years of entry of the judgment at issue. See OCGA
§ 9-11-60(f). And “[a] judgment void because of lack of jurisdiction of the person or
subject matter may be attacked at any time.” Id.
                                          12