State Bank & Trust Company filed a complaint against C & R Financial Lenders, LLC, Victor Smith and Brian Lee, claiming that they had defaulted on obligations under promissory notes and guaranties. On August 5, 2011, the trial court entered an order granting summary judgment in favor of State Bank and against all three defendants. On December 16, 2011, C & R Financial, Smith and Lee filed a motion under OCGA § 9-11-60 (g) to set aside the order on the ground that they had not received notice of it. The trial court denied the motion. C & R Financial, Smith and Lee appeal. Because the trial court erroneously failed to make any finding as to whether the attorneys for the appellants had received notice of the order and also erred in finding that affidavits filed in support of the motion contained inadmissible hearsay, we vacate the order and remand for further proceedings.
1. Affidavits.
The trial court erred in finding that two affidavits, filed by the appellants’ attorneys in support of the motion to set aside, contained inadmissible hearsay. The statements in question were based on the attorneys’ personal knowledge and indicated that they had not been served with a copy of the summary judgment order; that they had been unable to locate any notice from the court in their e-mails, mail notices or faxes; and that no member of their firm had been served with a copy of the order. These statements made by the declarants themselves are not hearsay. See OCGA § 24-8-801 (c).
Another statement by one of the attorneys explained that he first became aware of the summary judgment ruling when Smith called and told him that a garnishment action had been served upon his employer. Such statement was not offered for the truth of the matter asserted in Smith’s call — i.e., it was not offered to prove that a garnishment action had been served on Smith’s employer. Rather, it was offered solely to explain when counsel first became aware of the summary judgment order. Because the attorney’s affidavit statement was not offered as proof of the facts asserted in Smith’s out-of-court statement, it was admissible as original evidence and does not constitute inadmissible hearsay. See City of Brunswick v. Atlanta
2. Motion to set aside.
OCGA § 15-6-21 (c) provides that when a trial judge decides a motion, “it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision.” One purpose of this statutory requirement is to ensure that the losing party has a fair opportunity to appeal from the decision; thus, as “our Supreme Court explained in Cambron[ v. Canal Ins. Co.,
Cambrón established the following trial court procedures when ruling upon such a motion to set aside:
[U]pon a finding that notice was not provided as required by [OCGA § 15-6-21 (c)],the motion to set aside maybe granted, the judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry. Of course, where notice was sent and received, and the trial judge so finds, he should refuse to set aside the earlier judgment.
(Emphasis supplied.) Cambron, supra at 148-149 (1). As Cambron plainly sets forth, in order for a trial judge to deny a motion to set aside, he must find that notice was both sent and received.
In this case, the trial judge found that notice had been sent. However, the judge made no finding as to whether the defendants or their attorneys had received notice. Indeed, it appears from the order denying the motion to set aside that the trial court mistakenly believed that receipt of notice by the defendants was irrelevant so long as the court found that notice had been sent. In that regard, the trial court found that “the evidence submitted by the Defendants is insufficient to establish that the Court did not provide notice to the Defendants ... because [their] Affidavit testimony focuses on receipt by the Defendants as opposed to notice from the Court.” (Emphasis in original.) Likewise, appellee State Bank, whose attorney also submitted the order denying the motion to set aside signed by the trial judge, claims in its brief that the determining factor is not the losing party’s receipt of notice, hut is simply whether the trial court sent notice.
Likewise, this court has recognized the Cambrón requirements that notice must not only be sent, but must also be received. See Sea Tow/Sea Spill of Savannah v. Phillips,
Here, the order appealed from made no findings as to whether the appellants or their attorneys received notice of the summary judgment order.
Therefore, we are unable to determine whether the court’s denial of [the] motion to set aside was proper under Cambrón, especially since the [affidavits] in the record [aver] that [appellants’] attorney [s] received no notice of the order. Accordingly, the order of the trial court is vacated, and this case is remanded to the trial court with direction that the court make the necessary findings under Cambrón. If the court finds that [the appellants] received no notice of the entry of final judgment, then the motion to set aside must be granted and the judgment re-entered.
(Citations omitted.) Downs v. C. D. C. Fed. Credit Union,
Judgment vacated and case remanded with direction.