Pulliam v

Nichols, 202 Ga. App. 95, 413 S.E.2d 215 (1991). Failure of the defendant’s insurance agent to deliver the summons and complaint to the insurer and the failure of the defendant to check on the suit were omissions which the trial court could find did not constitute excusable neglect. Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 488 S.E.2d 500 (1997). ‘‘Proper case’’ defined. — Statute plainly gives a trial judge the discretion to open a default when the judge considers a proper case has been made, which is materially different from providential cause and excusable neglect. Houston v. Lowes of Savannah, Inc., 136 Ga. App. 781, 222 S.E.2d 209 (1975). ‘‘Excusable neglect’’ and ‘‘providential cause’’ are not required for ‘‘proper case’’ decision. To impose ‘‘excusable neglect’’ and ‘‘providential cause’’ on a ‘‘proper case’’ decision by the trial judge would be to excise by judicial surgery one-third of the statute. Houston v. Lowes of Savannah, Inc., 136 Ga. App. 781, 222 S.E.2d 209 (1975). Broader discretion contemplated under ‘‘proper case’’ ground. — Exercise of broader discretion in opening default under the ‘‘proper case’’ ground than under the grounds of providential cause and excusable neglect constitutes the general policy of the law. Broadaway v. Thompson, 127 Ga. App. 600, 194 S.E.2d 342 (1972). 741 Opening Default (Cont’d) 3. At Any Time Before Judgment (Cont’d) ‘‘Proper case’’ language is coextensive. — Language in this section ‘‘where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened’’ is coextensive with other requirements contained in the section. Kitchens v. Lowe, 139 Ga. App. 526, 228 S.E.2d 923 (1976). Discretion of trial court to open default. — While this section gives a judge broad discretion in opening a default, it does not mean that a judge can act arbitrarily, but that a judge may exercise sound and legal discretion; the statute does not give a judge authority to open a default capriciously or for fanciful or insufficient reasons. Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539 (1969), later appeal, 122 Ga. App. 407, 177 S.E.2d 176 (1970); Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981). Under subsection (b) of this section, at any time before final judgment the judge in the judge’s discretion may open a default when, from all the facts, the judge determines that a proper case has been made. Clements v. United Equity Corp., 125 Ga. App. 711, 188 S.E.2d 923 (1972). Statute does not give a judge the authority to open a default capriciously or for fanciful or insufficient reasons. Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973). While this section gives a judge broad discretion, the statute does not mean that the judge can act arbitrarily, but that the judge may exercise sound and legal discretion. Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973). Trial court has no authority to open default for reasons which fall short of a reasonable excuse for negligent failure to answer. Early Co. v. Bristol Steel & Iron Works, Inc., 131 Ga. App. 775, 206 S.E.2d 612 (1974). Trial court has discretion to open default, even absent showing of providential cause or excusable neglect. Thomas v. McKibben, 135 Ga. App. 886, 219 S.E.2d 621 (1975). 9-11-55 While subsection (b) of this section gives a judge broad discretion, subsection (b) does not give a judge authority to open a default capriciously or for fanciful or insufficient reasons. Thomas v. McKibben, 135 Ga. App. 886, 219 S.E.2d 621 (1975). Trial judge cannot just act willy-nilly and open default without exercise of any legal discretion whatever, giving as the judge’s reason that a proper case has been made, when no case at all has actually been made, proper or otherwise. Johnson v. Durrence, 136 Ga. App. 439, 221 S.E.2d 652 (1975). Whether or not the trial court opens a default is a matter resting within the court’s sound discretion. Taurus Prods., Inc. v. Maryland Sound Indus., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980). Even the broad ‘‘proper case’’ ground does not vest the trial court with discretion to open a default for reasons which fall short of a reasonable excuse for failure to answer. First Union Nat’l Bank v. Floyd, 198 Ga. App. 99, 400 S.E.2d 393 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 393 (1991). Discretion of trial court not to open default. — Decision of the trial court not to open a default -- like the court’s decision to open a default -- will not be interfered with unless the court’s discretion is manifestly abused. Daniel v. Causey, 220 Ga. App. 589, 469 S.E.2d 839 (1996). Facts warranting exercise of discretion to be shown. — While this section provides for opening of a default by the trial judge as a matter of discretion, and the judge’s discretion is greater before default judgment is entered than afterward, this discretion is a legal one, and in absence of a showing of facts upon which a finding of providential cause or excusable neglect could be made, it is generally an abuse of discretion to open a default. State Farm Mut. Auto. Ins. Co. v. Pritchett, 124 Ga. App. 815, 186 S.E.2d 510 (1971). Judge is required to exercise legal discretion in opening a default, and in order to do so, some facts must be proven which warrant exercise of legal discretion. Johnson v. Durrence, 136 Ga. App. 439, 221 S.E.2d 652 (1975). Discretion limited to original trial judge. — Generally, whether the trial 742 court opens a default is a matter resting within the sound discretion of the court, but usually the case rests in the bosom of the trial judge who originally heard the case and entered the order. To allow a losing party to bring before a different judge a renewed motion and dispute a ruling on a motion already heard and denied, after the time for appeal has passed, makes a mockery of the principle of res judicata and wholly disregards the rules of appellate procedure. It allows full sway to a practice that courts abhor, the practice of ‘‘judge shopping,’’ seeking to find a judge who is more responsive to arguments than the last. Sears v. Citizens Exch. Bank, 166 Ga. App. 840, 305 S.E.2d 609 (1983). Absence of deliberate failure to obey as prerequisite. — To open default there must be an absence of deliberate and intentional failure to obey process of the court. Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973). One who moves to open default must allege and prove some reason good in law for one’s failure to make defense at time one was required by law to present a defense. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969). Refusal to open default proper when affidavit states no grounds therefor. — When counsel stipulates and agrees that the answer be withdrawn and dismissed, the case automatically becomes in default, and the motion to open default based upon an affidavit which states no grounds therefor may be overruled. Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 176 S.E.2d 604 (1970). Conditions precedent to opening default. — This section requires that any showing to open a default shall be made under oath, set up a meritorious defense, offer to plead instanter, and announce ready to proceed with trial, and when these conditions precedent are not met, the trial judge has no discretion in the matter. Georgia Hwy. Express Co. v. Do-All Chem. Co., 118 Ga. App. 736, 165 S.E.2d 429 (1968). Having a defense to an action is not in itself a ground to opening default; for this relief to be granted, there must be a mo- 9-11-55 tion, a meritorious defense, a legal excuse for nonappearance, and payment of costs. B-X Corp v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976). For a request to open default to be granted, there must be a motion, a meritorious defense, a legal excuse for late filing, and payment of costs. Taurus Prods., Inc. v. Maryland Sound Indus., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980). Failure to show meritorious defense is alone fatal to motion to open default under subsection (b) of this section; this requirement is a condition precedent, and in its absence, the trial judge had no discretion to open the default. Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 202 S.E.2d 698 (1973); Town of Thunderbolt v. River Crossing Apts., Ltd., 189 Ga. App. 607, 377 S.E.2d 12, cert. denied, 189 Ga. App. 913, 377 S.E.2d 12 (1988); Forrister v. Manis Lumber Co., 232 Ga. App. 370, 501 S.E.2d 606 (1998). Conclusory statement of meritorious defense inadequate. — Facts showing a meritorious defense must be set forth, and a mere statement that the party ‘‘has a good and meritorious defense’’ is inadequate. Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 202 S.E.2d 698 (1973). Refusal to open default not error when conditions not met. — When the defendants presented no excuse except inadvertence, no meritorious defense other than general denial, and failed to pay costs until long past the required deadline, the trial court did not err in refusing to open default nor in striking the answer. Taurus Prods., Inc. v. Maryland Sound Indus., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980). Discretion of judge before and after entry of default judgment distinguished. — Prior to entry of default judgment, the court has wide discretion when the court finds that from all the facts a proper case has been made to open default; after judgment, the court generally has ‘‘sound discretion’’ and inherent power to change or modify nonjury judgments entered during the same term. Tippins Bank & Trust Co. v. Atlantic Bank & Trust Co., 151 Ga. App. 179, 259 S.E.2d 179 (1979). 743 Opening Default (Cont’d) 3. At Any Time Before Judgment (Cont’d) Discretion of the trial court to open a default is greater before the final judgment than after. Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981). Available only prior to entry of final judgment. — When the trial court gave no basis for setting aside a default judgment other than the court’s failure to provide notice of the judgment to the defendant, the court erred when the court did not re-enter the default judgment but instead opened the default under subsection (b) of O.C.G.A. § 9-11-55, which subsection is available only prior to the entry of a final judgment. Vangoosen v. Bohannon, 236 Ga. App. 361, 511 S.E.2d 925 (1999). Court’s discretion limited after final judgment. — Subsection (b) of this section authorizes the trial judge, in the judge’s discretion, to open a default at any time before final judgment; it is only after final judgment that the trial court’s discretion is limited in this regard. Florida E. Coast Properties, Inc. v. Davis, 133 Ga. App. 932, 213 S.E.2d 79 (1975). Judge has no authority to open a default after the term has passed for reasons which fall short of a reasonable excuse for negligent failure to answer. Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539 (1969), later appeal, 122 Ga. App. 407, 177 S.E.2d 176 (1970). Failure to answer in conversion claim. — When a plaintiff brought a conversion action against a defendant, the defendant was served with a copy of the complaint and summons the same day, no answer was filed, and the case went into default and judgment was entered in favor of the plaintiff and against the defendant, and there was no evidence which would authorize setting aside the original judgment pursuant to O.C.G.A. § 9-11-60(d)(2), thus, it was error for the trial court to set aside the judgment under subsection (b) of O.C.G.A. § 9-11-55. Allen v. Nash, 195 Ga. App. 597, 394 S.E.2d 395 (1990). 9-11-55 ‘‘Excusable neglect’’ provision only applicable before judgment. — While this section provides that the court may allow default to be opened for excusable neglect, this provision only applies prior to final judgment. Golden Star, Inc. v. Broyles Ins. Agency, Inc., 118 Ga. App. 95, 162 S.E.2d 756 (1968). Generally, appellate court will not interfere when the judge has exercised discretion in opening the default. Matuszczak v. Kelly, 135 Ga. App. 577, 218 S.E.2d 292 (1975). When the record shows the court has considered a motion to open default judgment and has exercised the court’s discretion in the matter, the Court of Appeals will not interfere, absent a showing of abuse. Sheet Metal Workers Int’l Ass’n v. Carter, 144 Ga. App. 48, 240 S.E.2d 569 (1977), rev’d on other grounds, 241 Ga. 220, 244 S.E.2d 860 (1978). When the defendant answers an original complaint but fails to comply with a court order requiring an answer to an amended complaint, the court has plenary power to vacate or modify the court’s order, and under normal circumstances exercise of the court’s discretion to open default will not be overruled. Haire v. Cook, 237 Ga. 639, 229 S.E.2d 436 (1976). When complaints were filed on December 6, 1988, and the defendant was served on December 7, 1988, thereby giving the defendant until Friday, January 6, 1989, to file the defendant’s answers, and the answers were mailed to the clerk of the court on January 4 but were not filed by the clerk until Monday, January 9, which was the next business day following their due date, whereupon the plaintiffs proceeded with discovery and took no action regarding the late filing until May 23, 1989, when the plaintiffs filed their motions for default judgment, the trial court abused the court’s discretion in refusing to set aside the default judgments and in denying the defendant’s motions to open the defaults. West v. Smith, 196 Ga. App. 69, 395 S.E.2d 302, cert. denied, 196 Ga. App. 69, 395 S.E.2d 302 (1990). Overturning when abuse of discretion is manifest. — Because refusal to open default is discretionary, such refusal will not be overturned unless an abuse of 744 discretion is manifest. Taurus Prods., Inc. v. Maryland Sound Indus., Inc., 155 Ga. App. 147, 270 S.E.2d 337 (1980). When the judgment permitting opening of default is based on conflicting evidence, discretion vested in the trial court will not be controlled unless manifestly abused. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969). When the defendant has complied with all conditions (i.e., payment of costs, offer to plead a meritorious defense instanter, and to announce ready for trial) the judge has wide discretion with which the Court of Appeals will not interfere unless manifestly abused. Clements v. United Equity Corp., 125 Ga. App. 711, 188 S.E.2d 923 (1972). Discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by an appellate court unless manifestly abused, to the injury of the plaintiff. Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981); Miller v. Tranakos, 198 Ga. App. 668, 402 S.E.2d 772 (1991). Default should be opened if ‘‘reasonable excuse’’ for failing to answer is shown. Cobb County Fair Ass’n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977). When the evidence demands a finding of excusable neglect in following the progress of the case, the trial court abuses the court’s discretion in not opening the default. American Erectors, Inc. v. Hanie, 157 Ga. App. 687, 278 S.E.2d 196 (1981). Hospital entitled to have default opened. — In a medical malpractice action against a hospital and four residents, a proper case was established for the hospital’s default to be opened under O.C.G.A. § 9-11-55(b) when, upon discovering the default, the hospital acted promptly, the patient and family were not prejudiced as a result of the default being opened, and the hospital alleged a meritorious defense to the lawsuit. Nelson v. Bd. of Regents of the Univ. Sys. of Ga., 307 Ga. App. 220, 704 S.E.2d 868 (2010). Reliance on postal service not sufficient to require opening of default. — With several methods of communicating information available in our modern 9-11-55 society, reliance on the postal service alone in a matter of such gravity as defense of an action seeking $15,000.00 in damages is not sufficient to require, as a matter of law, that default judgment be opened. Truck & Trailer Sales Corp. v. East Coast Transp. Co., 141 Ga. App. 85, 232 S.E.2d 578 (1977). Ground of providential cause is clearly not applicable to the failures and shortcomings of the postal service. Truck & Trailer Sales Corp. v. East Coast Transp. Co., 141 Ga. App. 85, 232 S.E.2d 578 (1977). While failure to follow upon mailing may be understandable, it is not ‘‘excusable neglect.’’ Truck & Trailer Sales Corp. v. East Coast Transp. Co., 141 Ga. App. 85, 232 S.E.2d 578 (1977). Because of the many existing methods for communicating and transmitting documents, exclusive reliance on the postal service for communicating the existence of a legal complaint between the client and the attorney is insufficient to show ‘‘providential cause’’ or ‘‘excusable neglect.’’ First Union Nat’l Bank v. Floyd, 198 Ga. App. 99, 400 S.E.2d 393 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 393 (1991). Failure to pay attention to process. — If party, on reading a writ, reaches the wrong conclusion and therefore pays no attention to the process and fails to answer, the party’s neglect is inexcusable and gross, and the trial court has no authority to open a default for reasons which fall short of reasonable excuse for negligent failure to answer. Jordan v. Clark, 119 Ga. App. 18, 165 S.E.2d 922 (1969); Hendricks v. Hubert, 158 Ga. App. 371, 280 S.E.2d 396 (1981). Failure to meet any of conditions precedent. — When the defendant presents no excuse except failure to retain an attorney, and no meritorious defense other than a general denial, and for all the record shows, the defendant has not paid costs at any time, it is obvious that at least one of the several conditions precedent to opening the default has not been met; thus, the trial court has no exercisable discretion and errs in opening the default and allowing the defendant to defend against the complaint. Millholland v. 745 Opening Default (Cont’d) 3. At Any Time Before Judgment (Cont’d) Stewart, 166 Ga. App. 431, 304 S.E.2d 533 (1983). No explanation for failure to open default. — Trial court did not err in denying the defendant’s motion to open the default and in entering judgment against the defendant based on the default when the defendant offered no explanation whatever for the defendant’s failure to open the default during the 15-day period in which the defendant could have done so as a matter of right. Grayson & Hollingsworth, Inc. v. C. Henning Studios, Inc., 194 Ga. App. 531, 391 S.E.2d 8, cert. denied, 194 Ga. App. 531, 391 S.E.2d 8 (1990). Reasonable excuse for failing to file timely answer not established as matter of law when an insurance agency received a complaint and summons on September 9, 1980, but did not forward the documents to the liability insurer until August 13, 1981, and the insured did not move to open the default until over nine months after learning of the default’s existence. Georgia Farm Bldgs., Inc. v. Willard, 170 Ga. App. 327, 317 S.E.2d 229, aff ’d, 253 Ga. 649, 325 S.E.2d 591 (1984). Failure to timely secure counsel. — Trial judge properly exercised discretion in opening the default entered when the defendant failed to secure counsel in time to advise the defendant of the deadline for filing an answer. Broadaway v. Thompson, 127 Ga. App. 600, 194 S.E.2d 342 (1972). Failure to answer because counsel is not ready constitutes willful disregard of the process of the court and cannot be sanctioned. Brown v. National Van Lines, 145 Ga. App. 824, 245 S.E.2d 27 (1978). Failure of counsel to ascertain the facts or reach an opinion does not constitute ‘‘excusable neglect,’’ ‘‘providential cause,’’ or a ‘‘proper case’’ for default to be opened. Brown v. National Van Lines, 145 Ga. App. 824, 245 S.E.2d 27 (1978). Failure to answer complaint. — Trial court had jurisdiction over a home inspector, and the inspector was required under O.C.G.A. § 9-11-12(a) of the Georgia Civil Practice Act (see now O.C.G.A. 9-11-55 Ch. 11, T. 9) to file an answer to the purchaser’s complaint within 30 days, but because the inspector failed to do so, the inspector was in default. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011). Plaintiff ’s alleged delay in authorizing release to defendant insurer of medical information is not ‘‘providential cause’’ or ‘‘excusable neglect’’ under subsection (b) of this section. Interstate Life & Accident Ins. Co. v. Densley, 130 Ga. App. 70, 202 S.E.2d 463 (1973). Potential subjection of defendant to frequent lawsuits which would cause the defendant serious economic loss should the defendant have to engage legal counsel to defend each complaint is not sufficient excuse to open a default judgment. Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973). Opening of default judgment against third-party defendant purely on basis of pleadings, without consideration of fact, when the third-party defendant’s motion to dismiss and to open the default stated that the third party misunderstood the nature of the third party practice and was not represented by counsel, was an abuse of discretion as these statements do not constitute a proper case for opening of a default judgment. Dukes v. Burke, 139 Ga. App. 583, 228 S.E.2d 729 (1976). Default due to reliance on word of another. — Litigant should not unnecessarily be forced into default for having reasonably relied on word of the litigant’s fellow, particularly when no innocent party will suffer if the default is opened. Cobb County Fair Ass’n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977). Good cause for belief that insurer was defending suit. — Since there was good cause for the defendant to believe that the suit was being defended by an insurance company, any neglect by the defendant in following the progress of the case was excusable. Powell v. Eskins, 193 Ga. App. 144, 387 S.E.2d 389 (1989); Pinehurst Baptist Church, Inc. v. Murray, 215 Ga. App. 259, 450 S.E.2d 307 (1994). Filing of a motion to open a default before the remittitur is not an impediment to a trial court’s consideration 746 thereof. Marsh v. Way, 255 Ga. 284, 336 S.E.2d 795 (1985). Once a final judgment is entered, the provisions of subsection (b) of O.C.G.A. § 9-11-55 regarding the opening of default are inapplicable, and the case proceeds under subsection (d) of O.C.G.A. § 9-11-60. Archer v. Monroe, 165 Ga. App. 724, 302 S.E.2d 583 (1983); Ferros v. Georgia State Patrol, 211 Ga. App. 50, 438 S.E.2d 163 (1993); Pine Tree Publ’g, Inc. v. Community Holdings, Inc., 242 Ga. App. 689, 531 S.E.2d 137 (2000). Provisions of subsection (b) of O.C.G.A. § 9-11-55, regarding the opening of a default, become inapplicable upon entry of a final judgment. Anderson v. Bibb Supply Co., 188 Ga. App. 817, 374 S.E.2d 556 (1988); North Ga. Home Constr. Co. v. Lackey, 193 Ga. App. 346, 388 S.E.2d 766 (1989). 9-11-55 Motion to open default upon remand not proper until remittitur filed. — In an appeal from a default judgment, when the Court of Appeals ordered remand for preparation of findings of fact and conclusions of law and the defaulting party then moved to open the default in the trial court, the motion was not properly before the court since the trial court did not regain jurisdiction until remittitur was actually filed. Marsh v. Way, 173 Ga. App. 399, 326 S.E.2d 499, aff ’d, 255 Ga. 284, 336 S.E.2d 795 (1985). Motion filed following remand untimely. — When a judgment is vacated and the case remanded for findings of fact and conclusions of law with regard to damages, a motion to open default made upon remand is not timely. Marsh v. Way, 255 Ga. 284, 336 S.E.2d 795 (1985).