(Ga. L. 1966, p. 609, § 55; Ga. L. 1967, p. 226, § 24; Ga. L. 1981, p. 769, § 1; Ga. L. 1982, p. 3, § 9.)
Cross references.- Provision that judge is qualified to try civil case where no defense is filed, irrespective of relationship to party or interest in case, § 15-1-9.
Default judgments, Uniform Superior Court Rules, Rule 15.
Default judgments in state court cases, Uniform State Court Rules, Rule 15.
Default judgments in probate court proceedings, Uniform Rules for the Probate Courts, Rule 13.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 55, see 28 U.S.C.
Law reviews.- For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For article dealing with prevention of malpractice claims and litigation, see 16 Ga. St. B.J. 68 (1979). For survey article citing developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For article, "Discovering Clarity: A Call to Renovate Georgia's Discovery Landscape," see 19 Ga. St. B.J. 11 (April 2014). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For note, "Preferential Treatment of the United States under Federal Civil Discovery Procedures," see 13 Ga. L. Rev. 550 (1979).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1910, §§ 5654 et seq., and 5662 and former Code 1933, §§ 110-401, 110-402, and 110-404 are included in the annotations for this Code section.
O.C.G.A.
§ 9-11-56 not controlling as to default. - O.C.G.A. § 9-11-55, not O.C.G.A. § 9-11-56, is the controlling statute on the issue of default. A motion for summary judgment is not an appropriate means by which a plaintiff can secure a judgment based upon the defendant's alleged default. Watson v. Georgia State Dep't of Educ. Credit Union, 201 Ga. App. 761, 412 S.E.2d 286 (1991).
As there was no such thing as a default summary judgment, summary judgment was not authorized merely because a defendant filed a one-page response that contained no substantive argument and failed to comply with Ga. Unif. Super. Ct. R. 6.5. Milk v. Total Pay & HR Solutions, Inc., 280 Ga. App. 449, 634 S.E.2d 208 (2006).
"Default" and "default judgment" distinguished.
- Law distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents a final judicial action and the vesting of rights. Clements v. United Equity Corp., 125 Ga. App. 711, 188 S.E.2d 923 (1972); Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).
Similarity of current and prior law.
- This section is substantially the same as former Code 1933, § 110-401, as amended, which was repealed by enactment of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Sing Recording Co. v. LeFevre Sound Studios, Inc., 122 Ga. App. 327, 176 S.E.2d 657 (1970).
Language of this section relating to automatic default upon failure to answer or plead within time required is substantially the same as under the former practice applying in superior courts. Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 176 S.E.2d 604 (1970).
No conflict with probate court rule.
- There is no conflict between O.C.G.A. § 9-11-55 and Rule 13 of the Uniform Rules for the Probate Courts. Greene v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991).
Default does not admit legal conclusions in complaint.
- While a default operates as an admission of the well-pled factual allegations in a complaint, it does not admit the legal conclusions contained therein; as such, a default does not preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover. Fink v. Dodd, 286 Ga. App. 363, 649 S.E.2d 359 (2007).
Subsection (a) of O.C.G.A. § 9-11-55 governs an application for year's support and caveat filed in probate court. Greene v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991).
No distinction between actions seeking money judgments and equity.
- Section providing for default when the defendant has not answered as required is inapplicable to an action for divorce. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953); Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961) (decided under former Code 1933, § 110-401).
This section makes no distinction between civil actions seeking money judgments and cases seeking relief in equity. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).
Divorce cases.
- Default provisions of this section have no application to divorce cases. Simpson v. Simpson, 240 Ga. 543, 242 S.E.2d 45 (1978).
Equitable division of marital property exempted from section.
- O.C.G.A. § 9-11-55 is authority for the grant of default judgments; however, O.C.G.A. § 19-5-8 specifically exempts from the general ambit of § 9-11-55 issues with regard to the equitable division of marital property. Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000).
Disciplinary proceeding.
- Subsection (b) of O.C.G.A. § 9-11-55 applies in a disciplinary proceeding; thus, in order to authorize the opening of an attorney's default, the attorney was required to show "providential cause," "excusable neglect," or a "proper case." In re Turk, 267 Ga. 30, 471 S.E.2d 842 (1996).
Modification of alimony.
- Default provisions of O.C.G.A. § 9-11-55 have no application to proceedings for modification of alimony. McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984).
Case never went into default.
- Because the trial court did not err in ordering the doctor's answer filed as of the day it was first filed, the case never went into default and the trial court was not required to reach the question whether default should have been opened. Barbour v. Sangha, 346 Ga. App. 13, 815 S.E.2d 228 (2018).
Motions to set aside or modify judgments.
- This section has no application to motions to set aside or modify judgments. Southeast Ceramics, Inc. v. Ervin Co., 127 Ga. App. 346, 193 S.E.2d 262 (1972).
Collateral attack on valid default judgment unauthorized.
- Trial court properly dismissed a business' contribution action, filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds as: (1) its finding that the business was the sole tortfeasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).
Movant not entitled to default judgment.
- Trial court did not err in denying an executor's motion for default judgment because, once the evidence showed that a paragraph of the complaint did not compel the conclusion that a warranty deed was void, the trial court was free to reject the conclusion contained in another paragraph of the complaint. Because the evidence revealed that the executor was not entitled to have the warranty deed set aside, the trial court did not err in denying the executor's motion for default judgment; furthermore, the executor failed to show a tender or refusal of tender, a condition precedent to an equitable action for cancellation of a deed, and the trial court did not err in permitting the introduction of evidence by the conveyees of the deed. Standridge v. Spillers, 263 Ga. App. 401, 587 S.E.2d 862 (2003).
Trial court erred in granting actual damages for orthodontic expenses, as well as punitive damages and attorney fees, to an ex-husband in a fraud claim against the ex-wife, arising from allegations that the ex-wife fraudulently misrepresented that the ex-wife's former husband had abandoned the daughters, which the ex-husband later adopted, as the divorce decree and the adoption order were presumptively valid and in full force and effect and, accordingly, the ex-husband could not recover for expenses that the ex-husband was legally obligated to pay; although the ex-wife failed to respond to the complaint, the trial court erred in granting the ex-husband a default judgment under O.C.G.A. § 9-11-55(a) because the relief was not available to him, and as there was no actual damages awarded, there could be no punitive damages under O.C.G.A. § 51-12-5.1(b) and no attorney fees. Grand v. Hope, 274 Ga. App. 626, 617 S.E.2d 593 (2005).
In an action between a contractor and a landowner alleging a breach of contract and other related claims in which disputes arising under the parties' contract were required to be submitted to arbitration, the superior court erred in entering a default judgment against the landowner, and in denying relief from the landowner, ignoring a stay pending arbitration, as the issues involved in the litigation were ones that fell under the parties' agreement. GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14, 637 S.E.2d 511 (2006), cert. denied, 2007 Ga. LEXIS 157 (Ga. 2007).
In a suit arising from a contract for the sale of land, because the buyer waived the right to a default judgment by raising the issue of default for the first time on appeal, the trial court did not err in considering the seller's evidence and entering judgment in the seller's favor. Shirley v. Ficarrotta, 285 Ga. App. 169, 645 S.E.2d 667 (2007).
Trial court did not err in denying a candidate's request for entry of a default judgment on a 42 U.S.C. § 1983 claim that a county board of elections (BOE) and board members violated the candidate's rights under the United States Constitution and on the claim that the board conspired to commit fraud against the candidate by attempting to have the candidate's name removed from the ballot in an election for county commissioner because the answer of the BOE and members to those claims was valid and timely when the BOE and members filed an answer within 30 days after service of the summons and petition; the judgment from which the BOE and members appealed addressed only the candidate's request for injunctive relief and did not address the merits of the candidate's claims for damages based on their alleged violations of the candidate's constitutional rights or their alleged acts of fraud against the candidate, and because those claims were distinct from the injunction appealed, those claims remained within the trial court's jurisdiction. Johnson v. Randolph County, 301 Ga. App. 265, 687 S.E.2d 223 (2009).
Default judgment proper.
- Default judgment was properly entered against an LLC as the trial court did not err in holding that the LLC was required to be represented by counsel; further, without a hearing transcript, the appeals court was unable to review the LLC's claims that the trial court erred in denying the LLC the opportunity to hire counsel, file an amended answer, and hold a hearing on the amount of damages owed. Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 634 S.E.2d 188 (2006).
Because a medical care provider failed to assert an available defense in the underlying action which would have absolved the provider from any liability and prevented a default judgment from entering against the provider, the trial court did not err in entering summary judgment against the provider on the provider's claims for contribution and indemnity. Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 654 S.E.2d 434 (2007), cert. denied, 2008 Ga. LEXIS 407 (Ga. 2008).
Appeals of property evaluations.
- As the appeal procedure outlined in O.C.G.A. § 48-5-311(f) does not contemplate the filing of a "complaint" or "answer," a default judgment will not lie for failure to file defensive pleadings in a de novo hearing on appeal in the superior court from a property evaluation. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 279 S.E.2d 223 (1981).
Default concept inapplicable to workers compensation enforcement proceeding.
- Filing in superior court of a petition to enforce an award or a settlement agreement pursuant to O.C.G.A. § 34-9-106 is not a separate suit, but rather a continuation of the board of workers' compensation proceeding and the concept of default is not applicable. Wade v. Harris, 210 Ga. App. 882, 437 S.E.2d 863 (1993).
Forfeiture under § 16-13-49. - O.C.G.A. § 16-13-49 (forfeiture) is a special statutory proceeding which must be strictly construed and complied with, and as such, not all provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, apply, including O.C.G.A. § 9-11-55. Fulton v. State, 183 Ga. App. 570, 359 S.E.2d 726 (1987).
O.C.G.A. § 9-11-55 has no application to the forfeiture provisions of O.C.G.A. § 16-13-49 of the controlled substances law, which provides a special statutory proceeding to which default is not applicable. Hubbard v. State, 201 Ga. App. 213, 411 S.E.2d 44, cert. denied, 201 Ga. App. 904, 411 S.E.2d 44 (1991); Turner v. State, 213 Ga. App. 309, 444 S.E.2d 372 (1994).
Error in default judgment when no proof established negligence.
- In a negligence action involving a nursing home, the trial court erred by entering a default judgment against two shareholder entities of the corporate nursing home as the complaint failed to allege any abuses of the corporate form on their part and did not allege that the shareholder entities actually mistreated the deceased resident. EnduraCare Therapy Mgmt. v. Drake, 298 Ga. App. 809, 681 S.E.2d 168 (2009).
Trial court could not raise defense of usury.
- In an action to collect the amount due on a loan, the trial court was without authority to raise the defense of usury on behalf of the borrower and erred to the extent the court excluded the award of interest in the default judgment on the basis that the loan contract was usurious. Ideal Loan & Fin. Corp. v. Little, 217 Ga. App. 385, 457 S.E.2d 274 (1995).
Defendant's default operates as admission of material facts which are well and properly pled in the plaintiff's complaint. Summerour v. Medlin, 48 Ga. App. 403, 172 S.E. 836 (1934) (decided under former Code 1910, §§ 5655 and 5662).
Default only operates as an admission of the well-pled allegations of a complaint and does not preclude a defaulting party from showing that no claim existed that would permit recovery; therefore, although a management company for the landlord of a storage facility was in default, the company properly presented evidence showing that the tenant was limited to recovery for breach of contract, and that the tenant did not assert a valid tort claim based solely on the breach of contract. Lancaster v. Storage USA P'ship, L.P., 300 Ga. App. 567, 685 S.E.2d 474 (2009).
Judgment by default may be corrected to conform to pleadings at a subsequent term of court, even after execution has been issued and property sold. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1969).
In order to set aside a default judgment, the defendant must have not only a meritorious defense but a legal excuse for the defendant's nonappearance. West Court Square v. Assayag, 131 Ga. App. 690, 206 S.E.2d 579 (1974).
Trial court did not abuse the court's discretion in denying a corporate president's motion to open a default judgment as the corporate president's sole defense regarding why the president thought the default was improperly entered was that the trial court did not have personal jurisdiction over the president; however, the corporate president waived that defense by not properly raising the defense and since, in any event, that defense lacked merit, the trial court did not err in denying the motion to open the default judgment. Furthermore, the trial court did not abuse the court's discretion in denying the motion as the corporate president did not even argue that the four conditions precedent were met for opening a default judgment and, thus, the trial court did not even have the discretion to consider whether one of the three grounds for opening a prejudgment default was present. Mitchell v. Gilwil Group, Inc., 261 Ga. App. 882, 583 S.E.2d 911 (2003).
Appeal from denial of motion to set aside default judgment.
- Generally, denial of a motion to set aside a default judgment is appealable, without a certificate of immediate review; however, this is not automatically the case when multiple parties are involved. Cox v. Farmers Bank, 151 Ga. App. 64, 258 S.E.2d 731 (1979).
When the owners of a corporation sued waived a forum selection clause, the owners also waived the defenses of personal jurisdiction and venue by failing to raise the defenses at the earliest opportunity; thus, as non-parties to the underlying case, the owners could not otherwise appeal the default judgment against the corporation. Rice v. Champion Bldgs., Inc., 288 Ga. App. 597, 654 S.E.2d 390 (2007), cert. denied, 2008 Ga. LEXIS 326 (Ga. 2008).
Motion for "partial summary judgment" is not an appropriate means by which a plaintiff can secure a judgment based upon the defendant's alleged default. Williams v. Heykow, Inc., 171 Ga. App. 936, 321 S.E.2d 431 (1984).
Motion to strike pending.
- It was error to grant a motion for default judgment without explicitly ruling on a pending motion to strike even though no answer was filed. Cato Oil & Grease Co. v. Lewis, 250 Ga. 24, 295 S.E.2d 527 (1982).
Motion for new trial.
- Motion for a new trial is not a viable method to attack the liability portion of a default judgment, but such a motion is a viable method to attack the damages portion of a default judgment only insofar as the damages being sought are unliquidated. Nova Group, Inc. v. M.B. Davis Elec. Co., 187 Ga. App. 403, 370 S.E.2d 626, cert. denied, 187 Ga. App. 908, 370 S.E.2d 626 (1988).
Default judgment against one of several parties.
- When the default judgment was entered against one party in a multiparty suit, the trial court erred in holding that the judgment was final and that the court was without discretion to vacate the judgment. Daniell v. Heyn, 169 Ga. App. 772, 315 S.E.2d 284 (1984).
Trial court's oral pronouncement of default on multiple parties not binding.
- Trial court's oral announcement that the court was imposing a default judgment against a husband and his parents for abandonment of the husband's child was not binding on the trial court, and the court properly later determined that the court could not impose damages against the parents for the husband's abandonment. Bridges v. Wooten, 305 Ga. App. 682, 700 S.E.2d 678 (2010).
Plaintiff may waive right to default by proceeding to trial.
- Statutory right to judgment following default is not an indefeasible right, but may or may not be asserted, and may be waived by a plaintiff by proceeding with the action without taking advantage of the plaintiff's right to judgment in a timely and proper manner. Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985).
Out of state attorney could not compel default.
- Florida attorney who had been admitted pro hac vice to represent a defendant in a tire case, but whose duties were limited by the trial court due to the attorney's misleading statements, and whose client was later dismissed from the case, did not have standing to seek mandamus compelling the trial court to enter default judgments. Fein v. Bessen, 300 Ga. 25, 793 S.E.2d 76 (2016).
Default judgment is a final and appealable judgment. Smithson v. Harry Norman, Inc., 192 Ga. App. 796, 386 S.E.2d 546 (1989).
Cited in Keith v. Byram, 118 Ga. App. 364, 163 S.E.2d 753 (1968); Jones v. Itson, 121 Ga. App. 759, 175 S.E.2d 43 (1970); United Bonding Ins. Co. v. Bray Lumber Co., 122 Ga. App. 548, 177 S.E.2d 829 (1970); Walker v. Powell, 123 Ga. App. 498, 181 S.E.2d 501 (1971); Escambia Chem. Corp. v. Rocker, 124 Ga. App. 434, 184 S.E.2d 31 (1971); Georgia Farm Bureau Mut. Ins. Co. v. Williamson, 124 Ga. App. 549, 184 S.E.2d 665 (1971); Lymon v. Hollywood Fashions, Inc., 126 Ga. App. 627, 191 S.E.2d 473 (1972); Foster Co. v. Livingston, 127 Ga. App. 317, 193 S.E.2d 626 (1972); Goldberg v. Painter, 128 Ga. App. 214, 196 S.E.2d 157 (1973); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); Krasner v. Lester, 130 Ga. App. 234, 202 S.E.2d 693 (1973); Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973); Johnson v. Cook, 130 Ga. App. 575, 203 S.E.2d 882 (1974); Williamson v. C & S Realty Co., 130 Ga. App. 592, 203 S.E.2d 906 (1974); Nat'l Health Servs., Inc. v. Townsend, 130 Ga. App. 700, 204 S.E.2d 299 (1974); Security Mgt. Co. v. Keasler, 131 Ga. App. 230, 205 S.E.2d 515 (1974); Snyder v. Allen, 131 Ga. App. 617, 206 S.E.2d 591 (1974); Axelroad v. Preston, 232 Ga. 836, 209 S.E.2d 178 (1974); Barrett v. Barrett, 232 Ga. 840, 209 S.E.2d 181 (1974); Avis Rent A Car Sys. v. Rice, 132 Ga. App. 857, 209 S.E.2d 270 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Avant v. Patrick, 133 Ga. App. 708, 213 S.E.2d 14 (1975); Matuszczak v. Kelly, 233 Ga. 914, 213 S.E.2d 875 (1975); Evans v. Goodyear Tire & Rubber Co., 135 Ga. App. 75, 217 S.E.2d 318 (1975); Pittman v. McKinney, 135 Ga. App. 192, 217 S.E.2d 446 (1975); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 136 Ga. App. 777, 222 S.E.2d 94 (1975); Termplan, Inc. v. Haynes, 137 Ga. App. 122, 223 S.E.2d 19 (1975); Tallman Pools of Ga., Inc. v. Napier, 137 Ga. App. 500, 224 S.E.2d 426 (1976); Wright v. Thompson, 236 Ga. 655, 225 S.E.2d 226 (1976); Reading Assocs., Ltd. v. Reading Assocs. of Ga., Inc., 236 Ga. 906, 225 S.E.2d 899 (1976); Wall v. Benningfield, 237 Ga. 173, 227 S.E.2d 13 (1976); Shannon Co. v. Heneveld, 138 Ga. App. 756, 227 S.E.2d 412 (1976); Shuford v. Jackson, 139 Ga. App. 469, 228 S.E.2d 605 (1976); Whitaker v. Whitaker, 237 Ga. 739, 229 S.E.2d 603 (1976); Shelton v. Bowman Transp., Inc., 140 Ga. App. 248, 230 S.E.2d 762 (1976); Gooden v. Blanton, 140 Ga. App. 612, 231 S.E.2d 541 (1976); Henry v. Adair Realty Co., 141 Ga. App. 182, 233 S.E.2d 39 (1977); Lester v. Master Charge, 141 Ga. App. 593, 234 S.E.2d 164 (1977); Atlanta Car For Hire Ass'n v. Snead, 142 Ga. App. 276, 235 S.E.2d 679 (1977); Jesup Carpet Factory Outlet, Inc. v. Ken Carpets of LaGrange, Inc., 142 Ga. App. 301, 235 S.E.2d 684 (1977); Williams v. Citizens & S. Nat'l Bank, 142 Ga. App. 346, 236 S.E.2d 16 (1977); Schwartz v. C & S Mtg. Co., 142 Ga. App. 682, 236 S.E.2d 856 (1977); Lord v. Smith, 143 Ga. App. 378, 238 S.E.2d 731 (1977); North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977); Gregson v. Webb, 143 Ga. App. 577, 239 S.E.2d 230 (1977); Sewell v. Leifer, 144 Ga. App. 36, 240 S.E.2d 584 (1977); Staten v. Staten, 240 Ga. 478, 241 S.E.2d 237 (1978); Diaz v. First Nat'l Bank, 144 Ga. App. 582, 241 S.E.2d 467 (1978); Retail Union Health & Welfare Fund v. Seabrum, 240 Ga. 695, 242 S.E.2d 18 (1978); Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308 (1978); Galanti v. Emerald City Records, Inc., 144 Ga. App. 773, 242 S.E.2d 368 (1978); Cheeks v. Barnes, 241 Ga. 22, 243 S.E.2d 242 (1978); Marler Oil Co. v. United Car & Truck Leasing, Inc., 145 Ga. App. 160, 243 S.E.2d 336 (1978); Hill v. Hill, 241 Ga. 218, 244 S.E.2d 862 (1978); Whitby v. Maloy, 145 Ga. App. 785, 245 S.E.2d 5 (1978); Critz Buick, Inc. v. Aliotta, 145 Ga. App. 805, 245 S.E.2d 56 (1978); Hubert v. Lawson, 146 Ga. App. 698, 247 S.E.2d 223 (1978); In re Boswell, 242 Ga. 313, 249 S.E.2d 13 (1978); Equilease Corp. v. Moore, 147 Ga. App. 421, 249 S.E.2d 155 (1978); Marbut Co. v. Capital City Bank, 148 Ga. App. 664, 252 S.E.2d 85 (1979); Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278 (1979); Kerns v. White, 150 Ga. App. 305, 257 S.E.2d 374 (1979); Powell v. Powell, 244 Ga. 25, 257 S.E.2d 531 (1979); Carlson v. Holt, 152 Ga. App. 95, 262 S.E.2d 508 (1979); Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291, 262 S.E.2d 573 (1979); Cotton v. Federal Land Bank, 153 Ga. App. 153, 265 S.E.2d 59 (1980); Leverette v. Moran, 153 Ga. App. 825, 266 S.E.2d 574 (1980); McCarthy v. Holloway, 245 Ga. 710, 267 S.E.2d 4 (1980); Cotton v. Federal Land Bank, 246 Ga. 188, 269 S.E.2d 422 (1980); Perrin v. Kilgore, 158 Ga. App. 300, 279 S.E.2d 714 (1981); Willett Lincoln-Mercury, Inc. v. Larson, 158 Ga. App. 540, 281 S.E.2d 297 (1981); GMAC v. Yates Motor Co., 159 Ga. App. 215, 283 S.E.2d 74 (1981); Brannon Enters., Inc. v. Deaton, 159 Ga. App. 685, 285 S.E.2d 58 (1981); Smith v. Sears, Roebuck & Co., 160 Ga. App. 342, 287 S.E.2d 73 (1981); DeLoach v. Floyd, 160 Ga. App. 728, 288 S.E.2d 65 (1981); Mock v. Copeland, 160 Ga. App. 876, 288 S.E.2d 591 (1982); F & M Bank v. Smith, 162 Ga. App. 410, 291 S.E.2d 80 (1982); Cochran v. Levitz Furn. Co., 249 Ga. 504, 291 S.E.2d 535 (1982); Stevens v. Wakefield, 163 Ga. App. 40, 292 S.E.2d 516 (1982); Simon v. McGee Plumbing & Elec. Co., 164 Ga. App. 667, 299 S.E.2d 388 (1982); Wills v. McAuley, 166 Ga. App. 4, 299 S.E.2d 914 (1983); Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983); Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983); Christian v. M & R Collection Adjustment, Inc., 167 Ga. App. 712, 307 S.E.2d 523 (1983); Muscogee Realty Dev. Corp. v. Jefferson Co., 168 Ga. App. 673, 310 S.E.2d 245 (1983); Klosterman v. Tudor, 170 Ga. App. 4, 315 S.E.2d 920 (1984); Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873, 318 S.E.2d 740 (1984); Stinson v. Georgia Dep't of Human Resources Credit Union, 171 Ga. App. 303, 319 S.E.2d 508 (1984); Summer-Minter & Assocs. v. Phillips, 171 Ga. App. 528, 320 S.E.2d 376 (1984); Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 323 S.E.2d 849 (1984); Long v. A.L. Williams & Assocs., 172 Ga. App. 564, 323 S.E.2d 868 (1984); Buice v. White, 172 Ga. App. 634, 324 S.E.2d 203 (1984); Georgia Farm Bldgs., Inc. v. Willard, 597 F. Supp. 629 (N.D. Ga. 1984); Cronic v. State, 172 Ga. App. 675, 324 S.E.2d 533 (1984); Attridge v. Maines, 174 Ga. App. 472, 330 S.E.2d 409 (1985); Ross v. White, 175 Ga. App. 791, 334 S.E.2d 371 (1985); MTW Inv. Co. v. Vanguard Properties Fin. Corp., 179 Ga. App. 403, 346 S.E.2d 575 (1986); Cohutta Mills, Inc. v. Hawthorne Indus., Inc., 179 Ga. App. 815, 348 S.E.2d 91 (1986); Cole v. Smith, 182 Ga. App. 59, 354 S.E.2d 835 (1987); Atlantic Mechanical Contractors v. Hurston, 185 Ga. App. 511, 364 S.E.2d 638 (1988); Nova Group, Inc. v. M.B. Davis Elec. Co., 258 Ga. 7, 364 S.E.2d 833 (1988); Crolley v. Johnson, 185 Ga. App. 671, 365 S.E.2d 277 (1988); Gray v. Whisenaut, 258 Ga. 242, 368 S.E.2d 115 (1988); Daughtry v. Cohen, 187 Ga. App. 253, 370 S.E.2d 18 (1988); Dickens v. First Capital Income Properties, Ltd., 187 Ga. App. 607, 371 S.E.2d 130 (1988); Munford v. Maclellan, 258 Ga. 679, 373 S.E.2d 368 (1988); May v. Volkswagen of Am., Inc., 125 F.R.D. 521 (N.D. Ga. 1989); Camelback Mgt. Co. v. Phoenix Periodicals, Inc., 192 Ga. App. 101, 383 S.E.2d 651 (1989); Cassidy v. Wilson, 196 Ga. App. 6, 395 S.E.2d 291 (1990); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 402 S.E.2d 753 (1991); Cole v. Lucas, 201 Ga. App. 423, 411 S.E.2d 284 (1991); Evans v. Willis, 203 Ga. App. 699, 418 S.E.2d 73 (1992); Day v. Norman, 207 Ga. App. 37, 427 S.E.2d 31 (1993); Sagnibene v. Budget Rent-A-Car Sys., 209 Ga. App. 44, 432 S.E.2d 639 (1993); Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 440 S.E.2d 214 (1993); Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995); Frasure v. Calhoun, 221 Ga. App. 272, 471 S.E.2d 57 (1996); Cornelius v. Wood, 223 Ga. App. 339, 477 S.E.2d 595 (1996); Revels v. Wimberly, 223 Ga. App. 407, 477 S.E.2d 672 (1996)
Walker v. Hambrick, 226 Ga. App. 207, 486 S.E.2d 77 (1997); Southwire Co. v. American Arbitration Ass'n, 248 Ga. App. 226, 545 S.E.2d 681 (2001); McCombs v. Synthes, 250 Ga. App. 543, 553 S.E.2d 17 (2001); Smith v. Local Union No. 1863, Int'l Longshoremen's Ass'n of Clerks, 260 Ga. App. 683, 580 S.E.2d 566 (2003); Majeed v. Randall, 279 Ga. App. 679, 632 S.E.2d 413 (2006); Hutcheson v. Elizabeth Brennan Antiques & Ints., Inc., 317 Ga. App. 123, 730 S.E.2d 514 (2012); Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013); Oduok v. Wedean Props., 319 Ga. App. 785, 738 S.E.2d 626 (2013); Brougham Casket & Vault Co., LLC v. DeLoach, 323 Ga. App. 701, 747 S.E.2d 707 (2013); Stewart Ausband Enters. v. Holden, 349 Ga. App. 295, 826 S.E.2d 138 (2019); Dockery v. Haedong Indus. Co., 355 Ga. App. 436, 844 S.E.2d 496 (2020); Innovative Images, LLC v. Summerville, Ga. , S.E.2d (Sept. 8, 2020).
When Case in Default
Under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), all claims, whether in law or equity, require filing of an answer to preclude entry of a default judgment against the defendant. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).
Automatic default after expiration of statutory period.
- When no answer was filed by the defendant within the statutory time, and the time for filing was not extended or default opened as a matter of right within 15 days thereafter, the case was automatically in default, and the court erred in overruling the petitioner's oral motion to enter judgment in the petitioner's case when the case was duly called for trial, thereby rendering nugatory all further proceedings in the case. Chapman v. Commercial Bank, 208 Ga. 593, 68 S.E.2d 603 (1952) (decided under former Code 1933, § 110-401).
Trial court did not err in granting a financial corporation's motion for default judgment in an action to establish a lost security deed because the buyer failed to respond within the time period allowed by O.C.G.A. § 9-11-55. Haamid v. First Franklin Fin. Corp., 299 Ga. App. 828, 683 S.E.2d 891 (2009).
Failure to perfect service.
- Time for filing an answer never began to run because the plaintiff did not perfect service on any of the defendants in the case, and thus there was never a default. Nally v. Bartow County Grand Jurors, 280 Ga. 790, 633 S.E.2d 337 (2006).
Trial court erred to the extent that the court concluded that the defendants, a homeowners association and one of the association's members, were in default because proper service had not yet occurred, as under O.C.G.A. § 9-11-55 a special master would need to determine who was entitled to notice and cause process to issue with respect to the quiet title claim against all the world and it was undisputed that at the time of the default judgment order this procedure had not yet been completed and, therefore, the defendants were not yet required to answer the complaint. Richards v. Bose, 354 Ga. App. 801, 841 S.E.2d 78 (2020).
Answer to amendment adding party not required.
- Construing the pertinent provisions of O.C.G.A. §§ 9-11-7,9-11-8,9-11-12,9-11-15, and9-11-21 in pari materia, it is clear that the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, authorizes the addition of parties, by order of the court, and that an "amended complaint" effecting such an addition does not require a responsive pleading unless the trial court orders a reply thereto. As the added party was not required by statute nor affirmatively ordered by the trial court to answer the amended complaint, it follows that the added party was never in default and the default judgment entered against the added party was void. Chan v. W-East Trading Corp., 199 Ga. App. 76, 403 S.E.2d 840, cert. denied, 199 Ga. App. 905, 403 S.E.2d 840 (1991).
Trial court erred in entering a default judgment against a law firm sued by a client in a legal malpractice action as the law firm was not required to answer an amended complaint, which added the firm as a party, absent a court order directing the firm to file a responsive pleading. Stubbs v. Pickle, 287 Ga. App. 246, 651 S.E.2d 171 (2007).
Answer to be filed within 30 days after service.
- Subsection (a) of this section requires an answer to be filed within the time required by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), in other words, within 30 days after service of the summons and complaint. Olvey v. Citizens & S. Bank, 146 Ga. App. 484, 246 S.E.2d 485 (1978).
Because a corporate president did not sign an original answer or submit a valid answer within 30 days, and an answer submitted for the president by a non-attorney corporate principal was not sufficient pursuant to O.C.G.A. § 9-11-11(a), a default judgment was properly entered against the president under O.C.G.A. § 9-11-55. Rainier Holdings, Inc. v. Tatum, 275 Ga. App. 878, 622 S.E.2d 86 (2005).
After a realty group acknowledged a waiver of service under O.C.G.A. § 9-10-73, the group had 30 days to file an answer, and upon failing to do so in that time period, a default judgment under O.C.G.A. § 9-11-55 was validly entered in favor of a flooring company, despite the fact that the company failed to provide the group with notice pursuant to O.C.G.A. § 9-11-5(a); the group failed to assert a timely defense, and the default certificate filed by the company satisfied the requirements of Ga. Unif. Super. Ct. R. 15. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005).
Because a plaintiff's personal injury action against a driver lapsed into default due to the driver's failure to timely file an answer or other responsive pleading, despite the fact that the driver could have moved to open the default, when no attempt was made to do so, the trial court erred in failing to grant the plaintiff a default judgment against the driver and in considering the driver's motion to dismiss. Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006).
Extension of time to answer.
- In determining whether a valid extension has been granted, O.C.G.A. §§ 9-11-6(b) and9-11-55(a) must be construed together. Roberson v. Gnann, 235 Ga. App. 112, 508 S.E.2d 480 (1998).
Response is required to a pleading construed as a third-party complaint, and default judgment is proper if the party fails to answer. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).
Since no answer is required to counterclaim, case cannot go into default for failure to respond thereto, and no default judgment can be authorized on this ground. Wolski v. Hayes, 144 Ga. App. 180, 240 S.E.2d 720 (1977).
Failure to file defensive pleadings in de novo hearing on appeal in superior court for property evaluation for tax assessment purposes is not grounds for a default judgment. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).
Failure to file certificate required by Ga. Unif. Super. Ct. R. 15.
- Because the information required in a Ga. Unif. Super. Ct. R. 15 certificate of default (date and type of service, lack of responsive pleading) could also be found in the record, the failure to file a Rule 15 certificate was not a nonamendable defect in the record sufficient to authorize setting aside a default judgment under O.C.G.A. § 9-11-60(d). The plain language of O.C.G.A. § 9-11-55 entitled the plaintiff to default judgment when the defendant did not answer and 15 days had elapsed. Williams v. Contemporary Servs. Corp., 325 Ga. App. 299, 750 S.E.2d 460 (2013).
Summons or process on which default based must comply with chapter.
- Default judgment under subsection (a) of this section may not lawfully be entered on the basis of a summons or process which was not in compliance with the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Lee v. G.A.C. Fin. Corp., 130 Ga. App. 44, 202 S.E.2d 221 (1973).
Mere filing of a default summary judgment motion did not result in the entry of a default judgment.
- Nothing showed a final or conclusive judgment on the merits in plaintiff home buyer's state court case against defendant companies, and the buyer's mere filing of a default summary judgment motion did not result in the entry of a default judgment; thus, the Rooker-Feldman doctrine did not preclude federal jurisdiction upon removal. Jones v. Commonwealth Land Title Ins. Co., F.3d (11th Cir. Jan. 25, 2012), cert. dismissed, mot. denied, U.S. , 133 S. Ct. 35, 183 L. Ed. 2d 671 (2012)(Unpublished).
Defendant who defaults does not waive defects in service, even when the defendant receives actual notice of the lawsuit. Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980).
Failure to answer after service made by publication.
- Trial court erred in denying the siblings' motion for default judgment in an action against their former stepmother to quiet title as the siblings obtained permission to serve the stepmother by publication, service was thereafter effected, the stepmother never answered, and, thus, the case automatically went into default. Patel v. Patel, 342 Ga. App. 81, 802 S.E.2d 871 (2017).
Answer not required.
- Trial court erred in entering a default judgment against the appellant on the cross-claims because no answer to the cross-claims was required and the trial court did not order the appellant to answer the cross-claims, and the cross-claims stood automatically denied; furthermore, the trial court should not have entered a default judgment against the appellant while the appellant's dispositive motion for summary judgment was pending. Hodges v. Auction Credit Enters., LLC, 352 Ga. App. 517, 835 S.E.2d 357 (2019).
Late return of service not fatal to default.
- When return of service, while filed late, was filed prior to the entry of a default judgment, and there was no attack on the service itself, the court did not err in denying the motions to set aside the default judgment and to dismiss the action. Olvey v. Citizens & S. Bank, 146 Ga. App. 484, 246 S.E.2d 485 (1978).
Late answer filed by uninsured motorist carrier.
- Trial court erred in denying an insured's motion for a default judgment and granting the uninsured motorist carrier's motion for summary judgment because the court relied upon a typographical error in case law in determining that the carrier's answer was not filed late and thereby finding that the carrier was not in default. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014).
Default operates to admit only the well-pleaded allegations of the complaint and the fair inferences and conclusions of fact to be drawn therefrom; thus, a defendant in default is not precluded by operation of the default from showing that no claim existed which could allow the plaintiff to recover. Azarat Mktg. Group, Inc. v. Department of Admin. Affairs, 245 Ga. App. 256, 537 S.E.2d 99 (2000).
Trial court did not err in awarding damages to an attorney on default judgment without conducting a trial or requiring evidence of the reasonableness of the attorney fees because, in a lawsuit seeking the balance due on an account when the case was in default under O.C.G.A. § 9-11-55(a), a doctor was deemed to have admitted each and every allegation of the attorney's petition. Vaughters v. Outlaw, 293 Ga. App. 620, 668 S.E.2d 13 (2008).
Default judgment held not abuse of discretion.
- When party ignores interrogatories served on the party, does not appear at a court-ordered hearing on failure to answer, and further ignores a court order to answer within 30 days, it is not an abuse of discretion to enter a default judgment and assess costs against the party. Williamson v. Lunsford, 119 Ga. App. 240, 166 S.E.2d 622 (1969).
Answer required from all parties named in complaint.
- When an answer was filed in the name of only one of four separate entities named as defendants in the action, the other three defendants could not benefit from the answer and, having filed no answer of their own, were in default. McCombs v. Southern Regional Medical Ctr., Inc., 233 Ga. App. 676, 504 S.E.2d 747 (1998).
Default judgment against joint defendants.
- 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 nondefaulting defendant(s). Stasco Mechanical Contractors v. Williamson, 157 Ga. App. 545, 278 S.E.2d 127 (1981).
Entitlement to verdict and judgment.
- When the case lapsed into default after the expiration of the grace period, the plaintiff became entitled to a verdict and judgment by default as if every item and paragraph of the plaintiff's complaint was supported by proper evidence. Sidwell v. Sidwell, 237 Ga. App. 716, 515 S.E.2d 634 (1999), recons. denied, overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).
Forfeiture actions under § 16-13-49. - Procedures for opening default as a matter of right under subsection (a) of O.C.G.A. § 9-11-55 are applicable, pursuant to O.C.G.A. § 9-11-81, in forfeiture actions under O.C.G.A. § 16-13-49. Ford v. State, 271 Ga. 162, 516 S.E.2d 778 (1999), reversing Ford v. State, 235 Ga. App. 755, 509 S.E.2d 734 (1998) and overruling State v. Britt Caribe, Ltd., 154 Ga. App. 476, 268 S.E.2d 702 (1980).
After an accused failed to appear or otherwise file an answer in a condemnation proceeding filed against the accused in connection with the accused's arrest for possession of methamphetamine, and the accused failed to show that counsel was ineffective in failing to file an answer, the state was properly granted judgment. Walters v. State of Ga., 269 Ga. App. 883, 605 S.E.2d 458 (2004).
Remand required to determine if default.
- Remand was required for further proceedings as the record did not make it clear whether, after the moving company defaulted on the customer's complaint and the trial court awarded unliquidated damages to the customer, an evidentiary hearing was held at which the customer established the amount of damages as was required upon a default by O.C.G.A. § 9-11-55(a). Wise Moving & Storage, Inc. v. Rieser-Roth, 259 Ga. App. 832, 578 S.E.2d 535 (2003).
Defendant who defaults is estopped from offering defenses to defeat the right of recovery.
- When a law firm sued a client to collect the balance owed to the law firm for legal services that the firm rendered to the client and a default judgment was entered against the client for the client's failure to file an answer, the trial court did not err in awarding the firm attorney fees incurred in bringing the suit to collect the fees owed as the fee agreement allowed the firm to receive reimbursement for the firm's fees in collecting on the debt, and the client, by virtue of the client's default, was estopped from raising the client's asserted defense that the agreement was not binding on the parties. Sprewell v. Thomas & Hutson, 260 Ga. App. 312, 581 S.E.2d 322 (2003).
Defect in answer cured and default error.
- Because a lessee waited over a month to file a motion to open a default without an explanation for the delay, the lessee was estopped from contending that the damages awarded to the lessor were not authorized by the lease; therefore, pursuant to O.C.G.A. § 9-11-55(a), the trial court properly denied the lessee's motion to open the default judgment. Broad. Concepts v. Optimus Fin. Servs., 274 Ga. App. 632, 618 S.E.2d 612 (2005).
Defect in a corporation's answer, through a nonattorney corporate principal, was cured by the filing of an answer by a licensed attorney, and the properly filed answer related back to the date of the original answer, pursuant to O.C.G.A. § 9-11-15(c); accordingly, it was error to enter a default judgment against the corporation, pursuant to O.C.G.A. § 9-11-55. Rainier Holdings, Inc. v. Tatum, 275 Ga. App. 878, 622 S.E.2d 86 (2005).
Denial of motion for default judgment error when party failed to answer.
- Denial of a listing broker's motion for default judgment against a buyer was error because the buyer did not file an answer, the time for filing an answer was not extended, and under O.C.G.A. § 9-11-55(a), the buyer's case was automatically in default 30 days after the buyer was served; further, the buyer did not move to open the default. The trial court's earlier findings on cross-motions for summary judgment regarding the codefendant's lack of contractual liability were irrelevant to the issue of whether the listing broker was entitled to a default judgment. H.N. Real Estate Group, LLC v. Dixon, 298 Ga. App. 124, 679 S.E.2d 130 (2009).
Waiver of default.
- Executor of the decedent's estate waived the right to seek a default judgment in a medical malpractice lawsuit because the executor allowed the health care provider to file an untimely answer and then waited over a year and a half before moving for, or otherwise raising, the issue of default, while in the meantime engaging in efforts to compel discovery responses and joining with the health care provider in filing motions to extend the completion of discovery. Laurel Baye Healthcare of Macon, LLC v. Neubauer, 315 Ga. App. 474, 726 S.E.2d 670 (2012).
Proof of Damages
1. In General
Phrase "ex delicto" in subsection (a) of this section describes a tort. Taylor v. Stapp, 134 Ga. App. 468, 215 S.E.2d 23 (1975).
Driver in default entitled to discovery.
- Even though the issue of liability was resolved by a driver's default, the question of damages remained; the driver was entitled to introduce evidence as to damages and the driver had the right to engage in discovery. Russaw v. Burden, 272 Ga. App. 632, 612 S.E.2d 913 (2005).
Each material allegation of complaint admitted except as to damages.
- When judgment by default is rendered in case in which damages are not liquidated, the defendant is thereby concluded as to the truth of all material allegations of the petition save as to the amount of damages. Summerour v. Medlin, 48 Ga. App. 403, 172 S.E. 836 (1934) (decided under former Code 1910, §§ 5655 and 5662).
Defendant in default in action for damages arising out of a collision is in the position of having admitted each and every material allegation of the plaintiff's complaint, except as to the amount of damages suffered by the plaintiff. Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979).
Trial court properly denied an injured party's motion for a default judgment as the driver did not dispute that the driver was in default, thereby admitting every material allegation of the complaint, except the amount of damages; as the driver contested damages, the trial court properly set the case for trial as to proximate cause and damages; the injured party was not entitled to court costs as the driver did not seek to open the default. Russaw v. Burden, 272 Ga. App. 632, 612 S.E.2d 913 (2005).
When action based upon liquidated demand is in default, judgment may be entered in favor of the plaintiff without introduction of evidence. Haney v. Brownlee, 102 Ga. App. 424, 116 S.E.2d 347 (1960) (decided under former Code 1933, § 110-401).
When contract action based on liquidated demand is in default, judgment may be entered in favor of the plaintiff without introduction of evidence, as if every item and paragraph of the petition were supported by proper evidence. Dickey v. Mingledorff, 110 Ga. App. 454, 138 S.E.2d 735 (1964) (decided under former Code 1933, § 110-401).
Debt or demand is liquidated when agreed on by parties or fixed as to amount by operation of law. Shaef Chem. Co. v. Cook, 106 Ga. App. 223, 126 S.E.2d 806 (1962) (decided under former Code 1933, § 110-401).
If damages are unliquidated, evidence in support thereof must be introduced; otherwise, judgment may be taken without evidence. Wallis v. McMurray, 91 Ga. App. 549, 86 S.E.2d 529 (1955) (decided under former Code 1933, § 110-401).
Damages are unliquidated when petition alleges that sum is due as reasonable value of services. Wallis v. McMurray, 91 Ga. App. 549, 86 S.E.2d 529 (1955) (decided under former Code 1933, § 110-401).
Attorney's fees.
- While ordinarily attorney's fees are thought to be in the nature of unliquidated damages, attorney's fees in a stipulated percentage of a liquidated amount may also be a liquidated claim. Young v. John Deere Plow Co., 102 Ga. App. 132, 115 S.E.2d 770 (1960) (decided under former Code 1933, § 110-401).
In a default situation, a request for unliquidated damages, such as attorney's fees, requires an evidentiary hearing at which each attorney must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records as an exception to the hearsay rule. Oden v. Legacy Ford-Mercury, Inc., 222 Ga. App. 666, 476 S.E.2d 43 (1996).
Trial court's grant of a default judgment to the appellee on the issue of the appellant's liability on a promissory note was upheld but the trial court's award of damages, interest, and attorney fees to the appellee was vacated because material conflicts in the pleadings existed that had to be resolved before the trial court could calculate the value of the stock on the day the appellee submitted the June Conversion Notice and could award that amount as damages. Pure Hospitality Solutions, Inc. v. Canouse, 347 Ga. App. 592, 820 S.E.2d 434 (2018).
No necessity for open account for liquidated damages.
- Subsection (a) of O.C.G.A. § 9-11-55 imposes no requirement that the cause of action be based on an open account in order for the damages to be considered liquidated. Pittard Mach. Co. v. Eisele Corp., 166 Ga. App. 324, 304 S.E.2d 129 (1983).
Damages for a complaint on an open account are liquidated. Tidwell v. Cherokee Culvert Co., 168 Ga. App. 613, 310 S.E.2d 15 (1983).
Damages were not liquidated for purposes of a default judgment since the contract was not attached to the complaint and only a conclusory allegation was made that a certain sum was due. Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 351 S.E.2d 218 (1986); Carter v. Ravenwood Dev. Co., 249 Ga. App. 603, 549 S.E.2d 402 (2001).
Trial court's determination that damages alleged were liquidated was erroneous since invoices or agreements from which the amount of damages were derived were not attached to the complaint and incorporated therein. T.A.I. Computer, Inc. v. CLN Enters., Inc., 237 Ga. App. 646, 516 S.E.2d 340 (1999).
When complaint alleges account in certain amount, damage evidence unnecessary.
- When the trial court bases a default judgment as to liability and damages on the count of the complaint which alleges an account stated in an amount certain, the movant is entitled to a judgment without presenting evidence of damages. Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983).
Damages are "ex contractu" when plaintiff seeks recovery for rent due under a lease. Maolud v. Keller, 157 Ga. App. 430, 278 S.E.2d 80 (1981).
Strict proof of damages required.
- Under this section, a case does not automatically become in default upon failure to timely file responses when the action involves unliquidated damages, in which event the plaintiff is required to introduce evidence and establish the amount of damages. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).
Failure to answer in action for damages arising from collision does not result in admission of existence of any amount of damages, and strict proof of damages is required by law. Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979).
When an action is ex delicto, the plaintiff is required to establish the plaintiff's damages by evidence before a jury. Maolud v. Keller, 157 Ga. App. 430, 278 S.E.2d 80 (1981).
Under the provisions of O.C.G.A. § 9-11-55, the plaintiff in an ex contractu action for unliquidated damages must prove the amount of the plaintiff's damages even if the defendant is in default. The debt is liquidated when it is rendered certain what is due and how much is due. Copelan v. O'Dwyer, 159 Ga. App. 750, 285 S.E.2d 216 (1981).
After the plaintiff presented cash receipts as evidence of deposits totaling a certain sum with the officer of a credit union, which the officer refused to return, it was error to deny the plaintiff's motion for a default judgment on unliquidated damages. Ward v. Dollar, 216 Ga. App. 143, 453 S.E.2d 142 (1995).
Defendant's failure to answer did not result in the admission of the existence of any amount of damages, and it could properly contest the issue of damages by rigid cross-examination and by the introduction of evidence so long as the cross-examination did not touch on the issue of liability. Magnan v. Miami Aircraft Support, Inc., 217 Ga. App. 855, 459 S.E.2d 592 (1995).
Because the damages sought by an advertiser were not proven as required by O.C.G.A. § 9-11-55(a) and because no due process violation for want of notice occurred, the trial court properly denied the advertiser's request for damages. BellSouth Adver. & Publ. Corp. v. Kingdom Adventures, LLC, 277 Ga. App. 495, 627 S.E.2d 125 (2006).
Trial court erred in entering a default judgment in the amount of $15,000 against a home inspector because a purchaser's damages were unliquidated, and other than the prayer in the purchaser's complaint for $15,000, the purchaser made no showing of the amount of damages; the purchaser's failure to prove the purchaser's damages constituted a nonamendable defect within the meaning of O.C.G.A. § 9-11-60(d)(3) of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011).
Default held not to liquidate amount sued for.
- When a complaint did not establish, even with its allegations admitted by virtue of default, that a service provider and its client operated under an open account arrangement, nor did it appear from the complaint that the amount was liquidated as between the parties, the fact of default did not render it liquidated. James C. Welch Constr. Co. v. Quantum Group, Inc., 188 Ga. App. 740, 374 S.E.2d 232 (1988).
Judge hearing evidence without jury.
- In contract action for unliquidated damages, the trial judge may hear evidence from the plaintiff without a jury and render a judgment. Rogers v. Griggs, 235 Ga. 273, 219 S.E.2d 372 (1975).
Necessity of proof of damages on default for failure to comply with discovery.
- Although Ga. L. 1970, p. 157, § 1 (see now O.C.G.A. § 9-11-37(d)), relating to sanctions for failure to comply with discovery, is silent as to the necessity of proof of damages when judgment by default has been imposed against a disobedient party, principles of Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55(a)) should apply to a judgment by default imposed thereunder. House v. Hewett Studios, Inc., 125 Ga. App. 127, 186 S.E.2d 584 (1971); Sterling Factors v. Whelan, 245 Bankr. 698 (N.D. Ga. 2000).
Proof of damages against guarantor of open account.
- Creditor who obtains default judgment against debtor on open account must prove damages under subsection (a) of this section when the creditor similarly obtains default judgment against the debtor's guarantor, since as to the guarantor, the creditor's action was not one on open account but on the guaranty contract. Graybar Elec. Co. v. Opp, 138 Ga. App. 456, 226 S.E.2d 271 (1976).
Amount admitted by guarantor's principal not conclusive.
- Guarantor is not conclusively bound by a judgment or the amount admitted due by the guarantor's principal, and such amount is only prima facie evidence of liability to the creditor; while a default judgment against a guarantor as to liability based on the guarantor's failure to answer the complaint was proper, the trial court erred in granting a judgment against the guarantor without proof of damages, and the case was remanded for further proceedings regarding the damages owed by the guarantor. McCorvey Grading & Pipeline, Inc. v. Blalock Oil Co., 268 Ga. App. 795, 602 S.E.2d 842 (2004).
Proof required in attachment proceeding.
- Even if no appearance or answer is filed by the defendant in an attachment proceeding in rem, the plaintiff must still prove allegations of the plaintiff's declaration by a preponderance of the evidence before the plaintiff is entitled to recover any damages resulting therefrom. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961) (decided under former Code 1933, § 110-401).
Matters relating to liability foreclosed.
- By failure of the defendant in a tort action to answer or by dismissal of an answer, the case is in default and the defendant is foreclosed as to all matters relating to the grounds of liability inhering in the tort action; thereafter, the only issue is the amount of damages to be awarded. Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976).
Defense which goes to right of recovery.
- Upon assessment of damages, defense which goes to the right of recovery cannot be made. Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 223 S.E.2d 482 (1976).
Defense to assessment of damages which goes to the right of recovery cannot be made. Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976).
Defenses which go to the right of recovery, such as the doctrine of comparative negligence, are not available to the defendant in default, even though the same defense may also go to the assessment of damages. Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979).
Defenses that go to the right of recovery are not available to the defendant in default even though the same defense also may go to the assessment of damages. Gibbs v. Abiose, 235 Ga. App. 214, 508 S.E.2d 690 (1998).
Defendant's waiver of right to introduce evidence.
- Defendant who fails to answer a suit is given rights under subsection (a) of O.C.G.A. § 9-11-55 to introduce evidence on damages; however, because the defendant failed to answer the suit at all, the rights are deemed waived. Erwin v. Gibson, 205 Ga. App. 136, 421 S.E.2d 752, cert. denied, 205 Ga. App. 900, 421 S.E.2d 752 (1992).
Nonapplicability of
§ 9-11-15(b) to default. - Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15(b)), which provides that when issues not raised by the pleadings are tried by express or implied consent, the issues shall be treated in all respects as if the issues had been raised in the pleadings, has no application when the defendant is precluded by default from raising such an issue. Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976).
Necessity of determining plaintiff's entitlement to equitable relief.
- When case not in equity is in default, the plaintiff is entitled to a default judgment as a matter of law without introduction of any evidence except as to unliquidated damages; however, in equity cases, a determination must first be made that admitting every allegation in the petition as true, the plaintiff is entitled to the relief sought. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).
Amount of damages not to be adjudicated on motion for summary judgment.
- When the plaintiff's complaint presents a claim for unliquidated damages, the amount of such damages cannot be adjudicated by the court on a motion for summary judgment, but must be proved as provided by law. Republic Ins. Co. v. Cook, 129 Ga. App. 833, 201 S.E.2d 668 (1973).
Matters in statement of account supported by proper evidence.
- In defaulted action on account, when statement of account attached as exhibit to complaint lists debtor corporation by tradename, under this section these matters, as well as those pertaining to materials furnished and amount due as shown on the statement of account, must be deemed "supported by proper evidence," so that the corporation has been duly adjudicated an account debtor in a specified amount. Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448, 228 S.E.2d 403 (1976).
Section as authority in cases not involving default.
- Order that trial as to amount of unliquidated damages, after grant of summary judgment as to liability, be held without jury pursuant to subsection (a) of this section was not error as this section has been specifically cited by the appellate courts in cases not involving default judgments for proving unliquidated damages when there is no question which a jury must decide. C.P.D. Chem. Co. v. National Car Rental Sys., 148 Ga. App. 756, 252 S.E.2d 665 (1979).
Nominal damages permitted in foreclosure when no particular loss demonstrated.
- In a borrower's wrongful foreclosure case against a lender in which the lender failed to answer the complaint, thereby admitting causation and the borrower's allegation of damages, even if the borrower had no equity in the home and could not demonstrate actual damages, the borrower still could recover nominal damages, and nominal damages would support an award of punitive damages. Zhong v. PNC Bank, N.A., 345 Ga. App. 135, 812 S.E.2d 514 (2018), cert. denied, No. S18C1034, 2018 Ga. LEXIS 696 (Ga. 2018), cert. denied, No. S18C1032, 2018 Ga. LEXIS 700 (Ga. 2018).
Punitive damages.
- Even if the trial court erred in awarding punitive damages in a default judgment case by not making a specific finding on a verdict form that punitive damages were authorized, the error was harmless; prior to awarding the punitive damages, the trial court conducted a separate hearing and received evidence on damages thereby satisfying the statutory requirements. Hill v. Johnson, 210 Ga. App. 824, 437 S.E.2d 801 (1993).
Proof not required.
- When, according to the contract, upon breach by the purchaser the broker was entitled to keep up to one-half of the earnest money as the broker's commission, with the balance of the earnest money to be retained by the seller as liquidated damages, inasmuch as there was no broker entitled to a commission, the seller was entitled to keep all of the earnest money as liquidated damages pursuant to the contract. Since the parties agreed to the damages for breach of the contract, the damages were liquidated, and the seller was entitled to a judgment without putting on evidence of damages. McGuire v. Norris, 180 Ga. App. 383, 349 S.E.2d 261 (1986).
When evidence to mitigate punitive damages not allowed.
- In an action for trespass, after the defendant's motion to open the defendant's default had been denied and the case proceeded to trial on the issue of compensatory and punitive damages, the trial court correctly refused defendant permission to question the plaintiff concerning whether the plaintiff knew that an easement had allegedly existed on the affected property and also correctly refused to permit the defendant to attempt to mitigate punitive damages by presenting evidence concerning the alleged existence of such an easement, since, although such evidence might have affected the amount of punitive damages assessed, it also bore upon the right of recovery, which had already been established by the factum of the default. Krystal Co. v. Carter, 180 Ga. App. 667, 350 S.E.2d 306 (1986).
No error in trial court granting judgment for damages and attorney fees.
- See Danger v. Strother, 171 Ga. App. 607, 320 S.E.2d 613 (1984).
2. Jury Trial of Damage Issue
Editor's notes.
- Prior to amendment by Ga. L. 1981, p. 769, § 1, this section required the amount of damages as to actions ex delicto to be tried before a jury. The 1981 amendment deleted this requirement, and inserted the proviso in subsection (a) of this section as to entitlement to a jury trial on demand on the issue of damages in the event defendant raised the issue. Hence, cases prior to the 1981 amendment should be consulted with care.
Requirement under local Act that nonappearing defendant must have demanded jury.
- Since this section contemplates foregoing default judgment, it is incorrect to interpolate requirement under local Act that nonappearing defendant must have spoken up to demand a jury to determine the amount of damages to avoid waiver. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Amount of damages due has to be fixed by the jury, even when the defendant is in default, but otherwise allegations of petition are to be taken as true. Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 223 S.E.2d 482 (1976); Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976).
Trial court erred by entering default judgment against the defendants, the vehicle operator and the vehicle owner, without submitting the issue of damages to the jury because the clear terms of O.C.G.A. § 9-11-55 required the insurer to introduce evidence establishing the amount of the insurer's damages before the entry of final judgment, the insurer failed to do so, and given the defendants' explicit, unequivocal pleading contesting damages and demanding trial by jury, a jury trial on damages was necessary. Ingram v. State Farm Mut. Auto. Ins. Co., 353 Ga. App. 221, 836 S.E.2d 215 (2019).
Evidence of amount of damages admissible.
- Evidence was admissible that the damage sustained by the plaintiff's automobile was the same as that sustained in a previous collision, even though the defendant was in default on the issue of liability, since this evidence did not challenge the defendant's liability for damages or the plaintiff's right to recover damages, but went only to the amount of damages. Gibbs v. Abiose, 235 Ga. App. 214, 508 S.E.2d 690 (1998).
Absent jury trial damage award void.
- In an action ex delicto, the plaintiff is required to establish damages by evidence before a jury, and when a jury is not impanelled, that part of the default judgment awarding damages to the plaintiff is void. Singleton v. Varnedoe, 141 Ga. App. 311, 234 S.E.2d 86 (1977).
Right to force jury trial is limited.
- Right of the defendant in default to force a jury trial on the issue of damages is limited to those instances in which the action is ex delicto or the damages sought are unliquidated. Fadum v. Liakos, 186 Ga. App. 556, 367 S.E.2d 843, cert. denied, 186 Ga. App. 917, 367 S.E.2d 843 (1988).
Right of defendant to contest amount of damages.
- If the plaintiff is required to produce evidence as to the amount of the damages, the defendant impliedly has the right to contest that amount. Ben Hyman & Co. v. Solow, 101 Ga. App. 249, 113 S.E.2d 489 (1960) (decided under former Code 1933, § 110-401).
Defendants were entitled to a trial on damages, to notice of a trial on damages, and to ask for a jury trial on damages, but were accorded none of these rights; therefore, it could not be concluded that the defendants had a full and fair opportunity to litigate the issues so as to apply the equitable doctrine of collateral estoppel. Sterling Factors, Inc. v. Whelan, 236 Bankr. 495 (Bankr. N.D. Ga. 1999).
Right of both parties to move for new trial on damage issues.
- Legislature did not intend to give the right of appeal to the plaintiff only and withhold the right from the defendant, but to give both parties the right to move for a new trial and to except on issue of amount of damages. Ben Hyman & Co. v. Solow, 101 Ga. App. 249, 113 S.E.2d 489 (1960) (decided under former Code 1933, § 110-401).
Failure to make specific demand.
- When the defendant merely informed the trial court of the defendant's right to a jury trial on the issue of damages and did not at any time make a specific demand for a jury trial on the issue as to damages, and the defendant failed to make any objection when the judge made the rulings, a demand for jury trial of the issue as to damages was never made an issue before the trial court; thus, no question was presented for appellate review. Stephenson v. Wildwood Farms, Inc., 194 Ga. App. 728, 391 S.E.2d 706 (1990).
Upon a review of the evidence before the trial court, because neither of an individual's filed documents amounted to a "pleading" which placed damages in issue, neither document was in the nature of a formal answer, and neither actually disputed the amount of damages claimed, the trial court did not err in denying the individual a jury trial on the issue of damages; hence, the appeals court noted that to avoid doubt and confusion in the future, a defendant desiring a jury trial should file an answer specifically contesting damages and a demand for jury trial on the issue of damages, both clearly labeled as such. Diaz v. Wills, 286 Ga. App. 357, 649 S.E.2d 353 (2007).
When there was no stipulation that the jury would consist of less than 12 jurors, as provided by Ga. L. 1967, p. 226, § 34 (see now O.C.G.A. § 9-11-47(a)), the default judgment entered after the trial before 11 jurors was void as not before a jury. First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 197 S.E.2d 396 (1973).
Defendant erroneously precluded from offering evidence.
- By deeming claims of wrongful termination and slander as admitted due to a defendant's default in the action, the trial court erred since only well-pled facts in the complaint were deemed admitted by the default, not legal conclusions contained in the complaint; as a result, the trial court erred by precluding the defendant from offering evidence to contradict those claims at a hearing on damages. Fink v. Dodd, 286 Ga. App. 363, 649 S.E.2d 359 (2007).
Defendant's right unaffected by discovery sanction.
- Defendant, whose answer denying liability for personal injuries was dismissed as a discovery sanction, was still entitled to notice of the trial on damages and, upon demand, a jury trial on that issue. Green v. Snellings, 260 Ga. 751, 400 S.E.2d 2 (1991).
Opening Default
1. In General
Liberal construction.
- Provisions relating to opening of defaults should be given a liberal construction in promotion of justice and establishment of the truth. Bradley v. Henderson, 56 Ga. App. 488, 193 S.E. 79 (1937); Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); Strickland v. Galloway, 111 Ga. App. 683, 143 S.E.2d 3 (1965) (decided under former Code 1933, § 110-404).
Rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible, cases should be decided on their merits for a default judgment is not favored in the law. Boynton v. State Farm Mut. Auto. Ins. Co., 207 Ga. App. 756, 429 S.E.2d 304 (1993).
Denial of motion to open default improper.
- Trial court erred in denying the defendant's motion to open default because, with respect to the conditions to reopen, the defendant raised a meritorious defense; and its actions were a sufficient statement of readiness to proceed with the trial; and, with regard to the grounds for opening default, the defendant had never been properly made a party to the action as it was not properly served and the plaintiff's attempt to amend the complaint to add the defendant without leave of court was ineffective; the defendant promptly informed the plaintiff's counsel of the misidentification of it in the complaint; and it plainly had a reasonable excuse for failure to answer timely. La Mara X, Inc. v. Baden, 340 Ga. App. 592, 798 S.E.2d 105 (2017).
Trial court was not required to set aside the court's default judgment prematurely entered because the 15-day period to open default as a matter of right had not yet expired when the trial court entered the judgment, because the judgment was rendered voidable, but not void on the judgment's face. Liberty Mut. Fire Ins. Co. v. Quiroga-Saenz, 343 Ga. App. 494, 807 S.E.2d 460 (2017).
Criteria for opening default.
- At any time before final judgment, a judge in the judge's discretion may allow a defendant to open a default, upon payment of costs: (a) for providential cause which prevented filing of a plea; (b) for excusable neglect; or (c) when a judge determines that a proper case has been made for default to be opened on terms fixed by the court. Johnson v. Dockery, 222 Ga. 569, 150 S.E.2d 921 (1966) (decided under former Code 1933, § 110-404).
As a condition precedent to opening a default, the defendant must set up a meritorious defense, offer to plead instanter, and answer ready to proceed with the trial. Johnson v. Dockery, 222 Ga. 569, 150 S.E.2d 921 (1966) (decided under former Code 1933, § 110-404).
Under subsection (b) of O.C.G.A. § 9-11-55, a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. C.W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 398 S.E.2d 297 (1990).
Compliance with the four conditions of subsection (b) of O.C.G.A. § 9-11-55 is a condition precedent to opening a prejudgment default, and once met, the question of whether to open the default rests within the sound discretion of the trial court. Anderson v. Flake, 270 Ga. 141, 508 S.E.2d 650 (1998).
Failure to meet statutory requirements.
- When the driver's motion to dismiss the complaint and open the default judgment did not contain "a motion to open default judgment" or "an express announcement that he was ready to proceed to trial, as required by O.C.G.A. § 9-11-55(b)," the motion to open the default did not contain all the statutory requirements; thus, the trial court did not have discretion to open the default and erred in granting the driver's motion to dismiss. Cotton v. Lamb, 265 Ga. App. 73, 593 S.E.2d 19 (2003).
Trial court properly declined to vacate a default judgment, pursuant to O.C.G.A. § 9-11-55(b), entered in favor of a development company as to claims that a subdivision association improperly charged various fees as the association's board of directors failed to reply to the company's claims made after the association intervened in the action, and none of the statutory factors allowing vacation were met; however, the trial court erred in permanently enjoining the association from charging the company water service fees as the default did not admit the company's conclusions of law, and covenants on the property allowed the association to charge the water service fees. Crawford v. Dammann, 277 Ga. App. 442, 626 S.E.2d 632 (2006).
Because a party seeking to open a default did not satisfy any of the three O.C.G.A. § 9-11-55(b) grounds for opening a default, a trial court had no discretion to open the default; a city did not show excusable neglect by arguing that the city sent the complaint to the city's insurer, since the city did nothing to ensure that the insurer received the complaint or that an answer was filed; the trial court erred in setting the default aside. Williams v. City of Atlanta, 280 Ga. App. 785, 635 S.E.2d 165 (2006).
Because the plaintiff presented sufficient evidence that, after filing the plaintiff's complaint, the plaintiff provided the sheriff's office with the defendant's correct address, and a few weeks later, contacted the sheriff's office to inquire whether service had been completed upon the defendant and learned that repeated service attempts were unsuccessful, evidence of reasonable diligence supporting the denial of a motion to set aside a default judgment was found; moreover, unlike O.C.G.A. § 9-11-4(e)(1), service via overnight delivery was supported and did not violate the defendant's due process rights. B&B Quick Lube, Inc. v. G&K Servs. Co., 283 Ga. App. 299, 641 S.E.2d 198 (2007).
In an action filed for payment of a debt, because a guarantor of that debt failed to provide either a meritorious defense or present sufficient facts to substantiate a claim of excusable neglect, the trial court did not abuse the court's discretion in denying the guarantor's motion to open the default judgment entered. Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 652 S.E.2d 877 (2007).
Trial court did not err in declining to open the default judgment because the defendants filed a motion to open the default more than four months after the plaintiff moved for the entry of a default judgment and filed a default certificate which stated that the defendants failed to answer the complaint; the late-filed answer was little more than a general denial and did not present what could reasonably be characterized as a meritorious defense; and the defendants did not present to the court a legal excuse for late filing. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013).
Since it was undisputed that the debtors motion to open default was not made under oath, the debtors failed to comply with O.C.G.A. § 9-11-55(b), and the trial court had no discretion to open the default. Brazell v. J. K. Boatwright & Co., P.C., 324 Ga. App. 502, 751 S.E.2d 133 (2013).
Trial court did not abuse the court's discretion in declining to set aside the judgment and open default because the defendant did not show that the defendant was entitled to a new trial as negligence in allowing the case to go into default was not a mistake to support relief under O.C.G.A. § 9-11-60(d), venue remained proper in the county under O.C.G.A. § 9-10-93, and any asserted procedural errors did not warrant the setting aside of the judgment. Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015).
Failure of court to make required findings for default to be opened.
- Because an individual defendant filed an untimely answer, along with the individual defendant's motion to open default, nearly 11 months after the individual defendant acknowledged service of the complaint, and the trial court made no finding about whether the individual defendant acted promptly in moving to open default after learning that the individual defendant's former counsel had not filed an answer and that a default judgment had been entered against the individual defendant, the trial court erred in opening default in the plaintiff's case, and the case was remanded to the trial court for additional findings necessary for a ruling on the motion to open default. Kittrell v. Dream Builder Investment, Inc., 354 Ga. App. 687, 840 S.E.2d 461 (2020).
Emergency motion to open default improperly granted.
- Defendant's emergency motion to open default was improperly granted as the defendant did not plead under oath a meritorious defense because the defendant was acting as an independent contractor working for the city when the city undertook the inspections at issue; under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., sovereign immunity applied only to the state and to state officers and employees; and the GTCA specifically excluded an independent contractor doing business with the state from the definition of state officer or employee. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).
Motion must show grounds.
- Failure of motion to open default to show a meritorious defense is alone fatal to appellant's cause. Global Assocs. v. Pan Am. Communications, Inc., 163 Ga. App. 274, 293 S.E.2d 481 (1982); Thomason v. Exxon Corp., 227 Ga. App. 44, 487 S.E.2d 605 (1997).
Trial court did not err in refusing to open default after the defendants failed to show under oath the existence of a meritorious defense. Stewart v. Turner, 229 Ga. App. 119, 493 S.E.2d 251 (1997).
When the facts detailed in the defendant's affidavits contradicted allegations of the complaint and the defendant acted with reasonable promptness in setting up a meritorious defense, the trial court did not abuse the court's broad discretion in opening the default. Exxon Corp. v. Thomason, 269 Ga. 761, 504 S.E.2d 676 (1998), reversing Thomason v. Exxon Corp., 227 Ga. App. 44, 487 S.E.2d 605 (1997).
In a personal injury case, an individual's motion to open the default was properly denied because the individual made no offer to plead instanter as the motion to open the default and attachments thereto were not inclusive of an answer to the patron's complaint. Red Train, Inc. v. Harris, 262 Ga. App. 846, 586 S.E.2d 738 (2003).
To open a default judgment there must be a motion, meritorious defense, a legal excuse for late filing, and payment of costs. Gowdey v. Rem Assocs., 176 Ga. App. 83, 335 S.E.2d 309 (1985).
To open default requires factual information showing meritorious defense.
- Trial court did not err in refusing to set aside a default judgment that was entered against the defendant client in the plaintiff law firm's suit to collect the balance owed for legal services that were rendered to the client as the conclusory affidavit of the client's counsel in which the counsel made a general denial of the client's indebtedness to the law firm was insufficient to qualify as a showing of a meritorious defense for purposes of opening the default under O.C.G.A. § 9-11-55(b); factual information showing a meritorious defense was required. Sprewell v. Thomas & Hutson, 260 Ga. App. 312, 581 S.E.2d 322 (2003).
Trial court erred in granting a health service's motion to open a default taken against it when it failed to file an answer in a timely manner after a bankruptcy stay was modified, allowing the action against the service to proceed, as the service failed to set forth a meritorious defense; the service's reference to medical records was not sufficient to set forth the "essential elements" of a meritorious defense for purposes of opening the default under O.C.G.A. § 9-11-55(b). Lucas v. Integrated Health Servs. of Lester, Inc., 268 Ga. App. 306, 601 S.E.2d 701 (2004).
In an architecture company's suit against a former client for failure to pay consulting fees, the trial court properly refused to open a prejudgment default because the client failed to show the existence of a meritorious defense as required by O.C.G.A. § 9-11-55(b); the client's sworn motion was completely devoid of facts and details that would have provided a defense to the action. Water Visions Int'l, Inc. v. Tippett Clepper Assocs., 293 Ga. App. 285, 666 S.E.2d 628 (2008).
When the beneficiaries of a family trust sued an accounting firm retained by the trust's trustee, it was not error to open a default judgment entered against the firm because the firm met the firm's burden to state facts showing a meritorious defense. Mayfield v. Heiman, 317 Ga. App. 322, 730 S.E.2d 685 (2012).
Trial court did not abuse the court's discretion granting a contractor's motion to open default on the ground of excusable neglect and, alternatively, also for an extension of time to file the contractor's answer because the contractor had paid costs and pled a meritorious defense under oath, and the homeowners had refiled the action in a different county and, therefore, did not have clean hands given the homeowners superior knowledge of the dismissal of the other action. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).
Discretion to open default to be exercised in accordance with law.
- Although a motion to open a default judgment is addressed to the sound discretion of the trial judge, such discretion must always be exercised in accordance with the law. Godfrey v. Home Stores, Inc., 101 Ga. App. 269, 114 S.E.2d 202 (1960) (decided under former Code 1933, §§ 110-401 and 110-404).
Trial court erred in denying a motion to open a default judgment because the movant made a proper showing of a proper case for reopening the default by making a showing under oath through the filing of the affidavit of one of its directors setting out both the reasons for the default and the company's meritorious defense, offering to plead immediately, attaching a copy of the company's proposed answer to the motion to open the default, tendering court costs, announcing itself ready for trial, and raising a meritorious defense by showing that if relief from default was granted, the outcome of the suit could be different from the result if the default stood; accordingly, it was then up to the trial court to exercise the court's discretion in opening the default. Boggs Rural Life Ctr., Inc. v. IOS Capital, Inc., 255 Ga. App. 847, 567 S.E.2d 94 (2002).
Trial court properly exercised the court's judgment and discretion in granting the seller's motion to open the seller's default when the seller argued that at the hearing on the seller's motion to open default, the seller offered an adequate explanation for the delay. MacDonald v. Harris, 265 Ga. App. 131, 593 S.E.2d 32 (2003).
Default judgment was vacated and the denial of the defendant's motion to open default was reversed because the trial court erroneously found the court lacked discretion to consider the asserted grounds for opening default; thus, a remand was necessary for the trial court to exercise the court's discretion and consider the merits of all asserted grounds in the motion. Ferrell v. Young, 323 Ga. App. 338, 746 S.E.2d 167 (2013).
Trial court did not err when the court set aside the default judgment entered against the nonresident company on grounds that the court lacked personal jurisdiction over the company because the plaintiff's purported service on the company was deficient in that the entry of service form contained no indication that the individual who was served was authorized to accept service. Delta Aliraq, Inc. v. Arcturus Int'l, LLC, 345 Ga. App. 778, 815 S.E.2d 129 (2018).
Default statute controlled over general extension of time statute.
- Trial court erred by alternatively granting the defendant's motion to extend the time to file an answer because O.C.G.A. § 9-11-6(b) was a general statute providing for extensions of time; and O.C.G.A. § 9-11-55(b), a specific statute regarding opening default, prevailed over O.C.G.A. § 9-11-6(b), a general statute. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).
Judge may not act arbitrarily.
- While the trial judge is given broad discretion, this does not mean that the judge may act arbitrarily, but that the judge must exercise sound and legal discretion; the judge may not open a default capriciously or for fanciful or insufficient reasons. McMurria Motor Co. v. Bishop, 86 Ga. App. 750, 72 S.E.2d 469 (1952); Davison-Paxon Co. v. Burkart, 92 Ga. App. 80, 88 S.E.2d 39 (1955); Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); Swain v. Harris, 101 Ga. App. 263, 113 S.E.2d 467 (1960); Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404).
Court's discretion not disturbed absent manifest abuse.
- Unless the discretion of the judge is manifestly abused, it will not be disturbed. McCray v. Empire Inv. Co., 49 Ga. App. 117, 174 S.E. 219 (1934) (decided under former Code 1910, §§ 5654 to 5656).
Discretion of the trial judge in opening the default and permitting the defendant to plead will not be interfered with by the reviewing court, unless manifestly abused, to plaintiff's injury. Bradley v. Henderson, 56 Ga. App. 488, 193 S.E. 79 (1937) (decided under former Code 1933, § 110-404).
It is discretionary with the trial court to permit a default judgment to be opened after 15 days but before final judgment, but such discretion must be exercised in accordance with the law. Wallis v. McMurray, 91 Ga. App. 549, 86 S.E.2d 529 (1955) (decided under former Code 1933, § 110-404).
Discretion of trial judge in opening the default judgment and permitting the defendant to plead will not be interfered with unless manifestly abused, to plaintiff's injury. Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); Strickland v. Galloway, 111 Ga. App. 683, 143 S.E.2d 3 (1965) (decided under former Code 1933, § 110-404).
Opening default judgment is a matter resting within the sound discretion of the trial court and the exercise of that discretion will not be disturbed absent a showing of abuse. Howard v. Technosystems Consol. Corp., 244 Ga. App. 767, 536 S.E.2d 753 (2000).
Because the defendant effectively waived defenses of a lack of both personal jurisdiction and venue in failing to appear at trial, the trial court did not abuse the court's discretion in striking the defendant's answer and denying a motion to set aside the default judgment entered. Jacques v. Murray, 290 Ga. App. 334, 659 S.E.2d 643 (2008).
In five consolidated aviation wrongful death cases and one aviation property case, the trial court properly denied the out-of-state seller's motion to open the default judgment entered against the seller as it was within the trial court's discretion to deny the motion on the ground of the seller's negligent and inexcusable failure to keep up with the seller's registered agent to obtain notice and the insurer's inexplicable failure to recognize that the insurer had a duty to defend the lawsuit on behalf of the seller. Vibratech, Inc. v. Frost, 291 Ga. App. 133, 661 S.E.2d 185 (2008), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
Filing of appeal acted as supersedeas.
- In a personal injury lawsuit, the pendency of the defendant's appeal from denial of the defendant's motion to set aside the default judgment acted as a supersedeas depriving the trial court of the jurisdiction to consider the defendant's subsequent extraordinary motion for new trial. Fred Jones Enters., LLC v. Williams, 331 Ga. App. 481, 771 S.E.2d 163 (2015).
Sole function of an appellate court reviewing a trial court's grant of a motion to open default is to determine whether all the conditions set forth in O.C.G.A. § 9-11-55 have been met and, if so, whether the trial court abused the court's discretion based on the facts peculiar to each case. Majestic Homes, Inc. v. Sierra Dev. Corp., 211 Ga. App. 223, 438 S.E.2d 686 (1993).
Discretion of court to open default is greater before final judgment than after. Strickland v. Galloway, 111 Ga. App. 683, 143 S.E.2d 3 (1965) (decided under former Code 1933, § 110-404).
Extent of judicial discretion.
- Discretion of trial court to open default is greater before final judgment than after, and after judgment this discretion applies only to judgments entered within the same term of court. Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); R.H. Macey & Co. v. Chancey, 116 Ga. App. 511, 157 S.E.2d 758 (1967) (decided under former Code 1933, § 110-404).
Compliance with subsection (b) mandatory.
- Generally, the opening of a default judgment rests within the sound discretion of the trial court. However, compliance with the four conditions stated in subsection (b) of O.C.G.A. § 9-11-55 is a condition precedent; in its absence, the trial judge has no discretion to open the default. C.W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 398 S.E.2d 297 (1990).
Opening default after final judgment.
- Former section relating to opening of defaults was not applicable when a final judgment had been rendered adverse to the movant. Cravey v. Citizens & S. Nat'l Bank, 110 Ga. App. 284, 138 S.E.2d 321 (1964) (decided under former Code 1933, § 110-404).
Former section relating to opening of defaults was not applicable when final judgment had been rendered before motion to open default and vacate judgment was filed. Rhonehouse v. Jetspra, Inc., 115 Ga. App. 129, 153 S.E.2d 570 (1967) (decided under former Code 1933, § 110-404).
Former section relating to opening of defaults had no application to motion to set aside final judgment rendered after default. R.H. Macey & Co. v. Chancey, 116 Ga. App. 511, 157 S.E.2d 758 (1967) (decided under former Code 1933, § 110-404).
Trial court has no discretion to allow a default to be opened for excusable neglect after final judgment. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 349 S.E.2d 223 (1986).
Plenary control of court over orders and judgments during term at which orders are rendered extends to judgment of "in default." East Side Lumber & Coal Co. v. Barfield, 193 Ga. 273, 18 S.E.2d 492 (1942) (decided under former Code 1933, §§ 110-401, 110-402 and 110-404).
Setting aside of default judgment held abuse of discretion.
- When the defendant's sole reason for not filing pleadings on time was the fact that "February term" appeared on the back of the petition and process and the defendant thought the defendant had until then to take necessary action, the trial judge abused the judge's discretion in setting aside the final default judgment. R.H. Macey & Co. v. Chancey, 116 Ga. App. 511, 157 S.E.2d 758 (1967) (decided under former Code 1933, § 110-404).
Because a lessee's conduct during the discovery stage of the proceedings below on the lessor's breach-of-lease complaint clearly demonstrated gross neglect, specifically, the lessee's failure to: (1) respond to a motion to compel and attend the hearing thereon; (2) communicate with counsel; and (3) attack the default judgment until eight months after it was entered, the trial court manifestly abused the court's discretion in granting the lessee's motion to set the default aside. Kairos Peachtree Assocs., LLC v. Papadopoulos, 288 Ga. App. 161, 653 S.E.2d 386 (2007).
Trial court erred in setting aside a default against an insured on the ground that the insured mistakenly believed that the insurer was providing a defense; the insured did not show that the insured successfully transmitted the complaint to the insurer, who denied that it received a faxed complaint, and the insured did nothing to ensure that the complaint was received by the insurance company. Wright v. Mann, 271 Ga. App. 832, 611 S.E.2d 118 (2005).
Setting aside of vacation of default judgment during subsequent term improper.
- Judgment entered during appearance term, vacating previous judgment "in default" and permitting the defendant to plead, may not be set aside at subsequent trial term and the defendant again be adjudged in default, merely because it was entered of the court's motion and without application of the defendant, or because the court in so vacating the previous entry of default acted upon the mistaken opinion that the plaintiff did not oppose such action. East Side Lumber & Coal Co. v. Barfield, 193 Ga. 273, 18 S.E.2d 492 (1942) (decided under former Code 1933, §§ 110-401, 110-402 and 110-404).
Rule as to opening up default judgments does not apply to garnishment proceeding. General Fin. Corp. v. Kelsey, 106 Ga. App. 108, 126 S.E.2d 261 (1962) (decided under former Code 1933, § 110-404).
Proper case must be made for default to be opened.
- Right of judge to exercise discretionary power to open default does not arise until after the judge determines, from the facts shown under oath, that a proper case has been made for the default to be opened. Metropolitan Life Ins. Co. v. Scarboro, 42 Ga. App. 423, 156 S.E. 726 (1930) (decided under former Code 1910, § 5656).
In light of the evidence that a company was not a proper party in interest to a slip and fall lawsuit, and that the company acted diligently before and after the default, the trial court did not abuse the court's broad discretion in accepting the company's explanation and opening the default under the "proper case" ground of O.C.G.A. § 9-11-55(b). Strader v. Palladian Enters., LLC, 312 Ga. App. 646, 719 S.E.2d 541 (2011).
Supreme Court disapproves of any decision of the court of appeals to the extent that the decision can be read to require a reasonable excuse or explanation in order to open default under the "proper case" ground, including BellSouth Telecomms., Inc. v. Future Comms., Inc., 666 S.E.2d 699 (2008); Hernandez v. Schumacher Group Healthcare Consulting, Inc., 835 S.E.2d 787 (2019); Summerville v. Innovative Images, LLC, 826 S.E.2d 391 (2019); Samadi v. Fed. Home Loan Mtg. Corp., 809 S.E.2d 69 (2017); In re Estate of Loyd, 761 S.E.2d 833 (2014); Sierra-Corral Homes, LLC v. Pourreza, 708 S.E.2d 17 (2011); Herring v. Harvey, 685 S.E.2d 460 (2009); NorthPoint Group Holdings, LLC v. Morris, 685 S.E.2d 436 (2009); Vibratech, Inc. v. Frost, 661 S.E.2d 185 (2008); Sidwell v. Sidwell, 515 S.E.2d 634 (1999); Tauber v. Community Centers Two, LLC, 509 S.E.2d 662 (1998); First Union Nat. Bank of Ga. v. Floyd, 400 S.E.2d 393 (1990); Early Co., Inc. v. Bristol Steel & Iron Works, Inc., 206 S.E.2d 612 (1974). Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
When the executor of the mother's estate filed suit against the executor's sisters contending that the sisters colluded to appropriate funds from their mother's estate for their own use, the trial court erred in issuing an order denying the sisters' motion to set aside the default because their failure to provide a reasonable explanation for their failure to file a timely answer was not required in the "proper case" analysis. Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
To show a "proper case" for opening default, the supreme court held that a defendant did not have to provide a reasonable explanation for the failure to file a timely answer. Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
No discretion of court to open default.
- Since the plaintiff filed a response to the defendant's motion for a default judgment, but did not move to open the default, let alone satisfy the four conditions required for opening default, the trial court correctly ruled that the court did not have discretion to open the default. Jesson v. GCH & Assocs., 248 Ga. App. 97, 545 S.E.2d 645 (2001).
When motion to reopen default shows no sound and legal reason for doing so, it is not a matter for exercise of discretion, but a matter of law that the defendant's motion should not prevail. Davison-Paxon Co. v. Burkart, 92 Ga. App. 80, 88 S.E.2d 39 (1955); Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404).
"Excusable neglect" refers to reasonable excuse for failing to answer as distinguished from willful disregard of the process of the court. 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); Mars, Inc. v. Moore, 207 Ga. App. 912, 429 S.E.2d 299 (1993).
Failure to make out "an extremely good case" for excusable neglect is not the correct standard under subsection (b) of O.C.G.A. § 9-11-55, but rather, excusable neglect refers to a reasonable excuse for failing to answer. Patel v. Gupta, 234 Ga. App. 441, 507 S.E.2d 763 (1998).
Excusable neglect.
- When the irregular recording of the return of service and the disappearance of the complaint, both of which occurred through no fault of appellant or the appellant's attorney, were factors in the delay in responding to the complaint and in turning over the complaint to the employer, the appellant did as the appellant was expected to do; contemporaneously with this case, a second case was filed against the appellant by another victim involving the same accident and after the appellant similarly turned over the pleadings to the appellant's employer, the documents were sent on to the insurer and a defense was provided, the evidence demanded a finding of excusable neglect. Spikes v. Holloway, 212 Ga. App. 653, 442 S.E.2d 471 (1994).
Defendant did not establish excusable neglect based on the defendant's claim that the defendant gave the complaint to the defendant's partner for delivery to the partnership's insurance agent since the defendant did not speak with the agent afterwards or receive assurances that the agent was proceeding with the defense. Follmer v. Perry, 229 Ga. App. 257, 493 S.E.2d 631 (1997).
Because of the many methods which now exist 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. Ellis v. Five Star Dodge, Inc., 242 Ga. App. 474, 529 S.E.2d 904 (2000).
In an action against the state, the trial court did not abuse the court's discretion in refusing to open the default on the basis of excusable neglect when it was shown that a process server hand-delivered the summons and complaint to an attorney in the Governor's Office of Executive Counsel on the same day the complaint was filed and, due to miscommunications between the Executive Counsel and the State Law Department, the officer responsible for responding to the complaint mistakenly believed that it had not been properly served and, based upon such belief, decided not to answer the complaint. Azarat Mktg. Group, Inc. v. Department of Admin. Affairs, 245 Ga. App. 256, 537 S.E.2d 99 (2000).
Trial court did not abuse the court's discretion in finding that one of the grounds for opening default, excusable neglect, was present since: (1) one defendant sent the plaintiff a check for "final payment" under the contract at issue; (2) the plaintiff accepted and deposited this check; (3) the same defendant, on behalf of the other defendants, forwarded proof of payment to the trial court with a request to remove the plaintiff's materialman's lien; and (4) afterward, the defendants reasonably believed the defendants had settled the case and that no further action on the defendants' parts was necessary. Bridges v. Mann, 247 Ga. App. 730, 544 S.E.2d 755 (2001).
When more than 16 months passed between service of discovery requests on defendants and the trial court's order striking the defendants' responsive pleadings and an additional 25 months passed before the defendants moved to open default, even though the defendants provided evidence that one defendant suffered from a disability and the other was preoccupied with the disabled defendant's care, these circumstances did not excuse such a lengthy period of inattention to the litigation. Carter v. Ravenwood Dev. Co., 249 Ga. App. 603, 549 S.E.2d 402 (2001).
Trial court did not err in granting the alleged wrongdoer's motion for reconsideration of entry of default judgment and in ordering that the default judgment be reopened; the alleged wrongdoer was understandably confused when the alleged wrongdoer was served with the same lawsuit twice, especially since the first process server posed as a person with ties to an insurance company, and thus excusable neglect existed for the failure to timely file a response to the first process after the alleged wrongdoer was served with while the alleged wrongdoer did file a timely response to the second process with which the alleged wrongdoer was served. Gilliam v. Love, 275 Ga. App. 687, 621 S.E.2d 805 (2005).
It was error to open a default against lenders under O.C.G.A. § 9-11-55(b) because the lenders had not shown excusable neglect. After sending the complaint to their attorney by e-mail, the lenders had not taken any action to confirm receipt of the e-mail by the attorney, who had not received the complaint and had not represented otherwise. Flournoy v. Wells Fargo Bank, N.A., 289 Ga. App. 560, 657 S.E.2d 625 (2008).
Trial court acted within the court's discretion in finding that failure to answer complaint in medical malpractice suit was not excusable neglect for purposes of O.C.G.A. § 9-11-55(b) because the failure of the doctor's employer to timely forward the complaint and amended complaint to an insurer was imputable to the doctor. McBee v. Benjamin, 272 Ga. App. 567, 612 S.E.2d 802 (2005).
Costs must be paid to open default.
- In a wrongful death action, the trial court did not abuse the court's discretion by refusing to open the default judgment entered against the defendant because the defendant failed to pay costs upon moving to open the default and under the plain language of O.C.G.A. § 9-11-55(b), payment of costs is a condition precedent for opening default and merely offering to pay costs is insufficient; therefore, because that statutory requirement was not met, the trial court lacked discretion to open the default. Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 734 S.E.2d 491 (2012).
Payment of costs is mandatory condition precedent to opening default. See Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969); White Plains Carpet v. United States Fid. & Guar. Co., 130 Ga. App. 158, 202 S.E.2d 558 (1973); Hazzard v. Phillips, 249 Ga. 24, 287 S.E.2d 191 (1982); Davis v. Southern Exposition Mgt. Co., 232 Ga. App. 773, 503 S.E.2d 649 (1998).
Trial court is authorized to grant a motion to open a default judgment so long as the movant has paid the costs prior to the grant of that motion. Copeland v. Carter, 247 Ga. 542, 277 S.E.2d 500 (1981); Dennis v. National Bank, 182 Ga. App. 634, 356 S.E.2d 563 (1987).
Motion to open not timely filed.
- Trial court did not err in denying a motion to open a default and by failing to find that a proper case had been made for the default to be opened when the defendant moved to open the default more than four months after the deadline for filing the answer had passed, and the defendant made no showing under oath in connection therewith and simply offered to pay court costs. Evers v. Money Masters, Inc., 203 Ga. App. 546, 417 S.E.2d 160 (1992).
Failure to consider whether motion to open default was timely.
- Trial court's order opening default against an individual defendant had to be vacated because the trial court did not appear to have considered whether the individual defendant acted promptly in moving to open default after learning that prior counsel had not answered the complaint in the required time period. Kittrell v. Dream Builder Inv., 354 Ga. App. 687, 840 S.E.2d 461 (2020).
Right to review of opening of default 153 days after service.
- When the defendant obtains an order of the trial court allowing opening of a default 153 days after service of the summons and complaint, there is no requirement that the plaintiff, in order to preserve the right to review, move to set aside such order or seek to take an immediate appeal with a certificate of review. Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973).
Default not to be opened ex parte.
- Nothing in this section provides that a default may be opened by an ex parte order, nor should it be done. Livesay v. King, 129 Ga. App. 751, 201 S.E.2d 178 (1973).
Hearing on opening of default contemplated.
- While it is not specifically provided that a hearing must be held on application for opening a default, language of this section indicates that a hearing is contemplated. Livesay v. King, 129 Ga. App. 751, 201 S.E.2d 178 (1973).
Notice and opportunity to object required.
- One who moves the court to change the status of a pending matter, such as the opening of a default in order that the defendant may plead, should serve the opposite party with a copy of the motion and of a rule nisi which the court should enter thereon, thus affording the opposite party a fair opportunity to object or to defend against the proposed action. Livesay v. King, 129 Ga. App. 751, 201 S.E.2d 178 (1973).
Relief against penalties for lack of punctuality.
- While the law makes requirements of punctuality in pleadings, the law also usually makes provision for relieving against penalties imposed for lack of this virtue, when interests of truth and justice require it. Clements v. United Equity Corp., 125 Ga. App. 711, 188 S.E.2d 923 (1972).
Specific reservation of issue of damages.
- Trial court's order directing the entry of a judgment against the defendant pursuant to O.C.G.A. § 9-11-54(b) does not constitute a "final" judgment which would preclude the application of the liberal criteria set forth in subsection (b) of O.C.G.A. § 9-11-55 for opening default when the trial court's order specifically reserves the issue of damages for later determination. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 349 S.E.2d 223 (1986); Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 424 S.E.2d 338 (1992); Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 535 S.E.2d 780 (2000).
Denial of request to open default not error.
- See Barone v. McRae & Holloway, 179 Ga. App. 812, 348 S.E.2d 320 (1986); Jim Walter Homes, Inc. v. Roberts, 196 Ga. App. 618, 396 S.E.2d 787 (1990); Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 444 S.E.2d 578 (1994); Billy Cain Ford Lincoln Mercury, Inc. v. Kaminski, 230 Ga. App. 598, 496 S.E.2d 521 (1998); K-Mart Corp. v. Hackett, 237 Ga. App. 127, 514 S.E.2d 884 (1999).
Because the defendant presented no excuse for late filing and payment of costs, and the defendant's counsel had actual notice of the pendency of the suit 21 days before the answer was due, the trial court did not abuse the court's discretion in refusing to open the default judgment. Atlanta Medical Accounting Corp. v. Financial Software, Inc., 227 Ga. App. 311, 489 S.E.2d 93 (1997).
Trial court could determine whether a proper case was made for the default to be opened; the trial court rejected the argument that the guarantor's mistaken belief that a timely, proper answer on behalf of all defendants had been filed amounted to excusable neglect or presented a proper case for opening a default. Associated Doctors of Warner Robins, Inc. v. U.S. Foodservice of Atlanta, Inc., 250 Ga. App. 878, 553 S.E.2d 310 (2001).
Trial court did not abuse the court's discretion in denying a doctor's motion to open a default as the doctor was not justified in relying on a medical corporation to forward a medical malpractice complaint to the insurer after the entry of a default against the doctor; the doctor did not contact the insurer, and the doctor failed to file a motion to open the default for nearly a month. Mcbee v. Benjamin, 272 Ga. App. 567, 612 S.E.2d 802 (Feb. 23, 2005).
Deputy sheriff's service of a wrongful foreclosure complaint on a mortgagee's local branch manager at a branch office, rather than on the designated registered agent for service, was proper service pursuant to O.C.G.A. §§ 9-11-4 and14-2-1510(d), and the trial court properly denied the mortgagee's motion to open a default pursuant to O.C.G.A. § 9-11-55(b) based on the mortgagee's claim that there was no jurisdiction due to improper service; the deputy's testimony that the manager indicated that the manager was authorized to accept service and that the manager did in fact accept the papers was entitled to a presumption in favor of the return of service. GMAC Mortg. Corp. v. Bongiorno, 277 Ga. App. 328, 626 S.E.2d 536 (2006).
Because the only explanation offered for the defendant's failure to file a timely answer was the defendant's belief that the defendant's partner was retaining local counsel, and there was no evidence to show that the defendant was diligent in the defendant's efforts to obtain or confirm representation by local counsel, the trial court's denial of the defendant's motion to open a default under O.C.G.A. § 9-11-55(b) was proper. Constructamax, Inc. v. Andy Bland Constr., Inc., 280 Ga. App. 403, 634 S.E.2d 168 (2006).
Trial court did not err in denying a corporation's motion to open a default judgment against companies that it subsequently acquired, as although regional counsel for the companies had received timely notice that the complaint had been served, regional counsel had not retained local counsel to answer the complaint; even when regional counsel obtained an extension of time in which to answer, no answer was filed within the agreed-to extension, no additional extension was requested until after the time granted in the first extension had expired, and the motion to open the default was not filed until almost three months after the answer was due. COMCAST Corp. v. Warren, 286 Ga. App. 835, 650 S.E.2d 307 (2007), cert. denied, 2008 Ga. LEXIS 82 (Ga. 2008).
Superior court did not err by denying a company's motion to open default because the motion was filed after a judgment had been entered against the company, and since the company was in default as a matter of law when the company failed to timely respond to a habeas corpus petitioner's claims, the superior court was authorized to enter a default judgment; although the state's failure to timely respond to a petition for habeas corpus relief did not entitle the petitioner to a default judgment, the company was a private entity, and the relief granted to the petitioner pursuant to the default judgment was not in the nature of habeas relief. Sentinel Offender Servs., LLC v. Harrelson, 286 Ga. 665, 690 S.E.2d 831 (2010).
Trial court did not abuse the court's discretion in denying a corporation's motion under O.C.G.A. § 9-11-55(b) to open and set aside the default judgment because the corporation made no showing that the trial court was substantively in error in rejecting the corporation's attempt to open the default under the "providential cause" or "excusable neglect" provisions of § 9-11-55(b); the trial court heard all of the evidence and determined that none of the grounds under § 9-11-55 were met, including that of a "proper case" being made for opening the default. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 694 S.E.2d 346 (2010).
Trial court did not abuse the court's discretion in denying the individual defendant's motions for a new trial and to open the default because the defendant failed to inform the court, the clerk, the parties, and counsel of a new address and, thus, the defendant was not without fault in failing to appear for a noticed trial and the motion to open default was made after the final judgment was entered and could not be opened. Williams v. Medinger, 349 Ga. App. 807, 824 S.E.2d 800 (2019), cert. denied, No. S19C1096, 2019 Ga. LEXIS 906 (Ga. 2019).
Opening default when multiple parties.
- Trial court erred when the court denied a motion to open a default filed by one of two relatives claiming an undivided one-half interest in a property to which a third relative sought to quiet title. The liability of relatives one and two was joint so the third relative was required to recover against both relatives one and two on the strength of the third relative's own title, and as the third relative was unable to prove a case against relative one, a default against relative two was improper. Lord v. Holland, 282 Ga. 890, 655 S.E.2d 602 (2008).
Indivisibility of judgments rule required setting aside of default judgment.
- Trial court did not err in denying a contractor's motion to set aside a default judgment after the default judgment was set aside as to a second contract only because the indivisibility of judgments rule required that the joint judgment, if set aside as to the second contractor, had to be set aside as to the first contractor as well; the setting aside of the judgment as to the second contractor was for reasons other than on the merits, and there remained a possibility that the second contractor's liability, if any, to a homeowner could be put in issue. Merry v. Robinson, 313 Ga. App. 321, 721 S.E.2d 567 (2011).
Effect of agreement to extend time for filing answer and late filing.
- Trial court erred in opening a default after counsel made an agreement to extend the time to file the answer because the time for filing the answer was not extended as provided by law and the answer was not filed within 15 days of the default; furthermore, the defendant's answer was not made or verified under oath as required by O.C.G.A. § 9-11-55(b) for opening a default. Wilcher v. Smith, 256 Ga. App. 427, 568 S.E.2d 589 (2002).
Default held properly opened. See Donalson v. Coca-Cola Co., 164 Ga. App. 712, 298 S.E.2d 25 (1982); Perkins Masonry Contractors, Inc. v. Housing Auth., 184 Ga. App. 856, 363 S.E.2d 164 (1987); Ford v. Saint Francis Hosp., 227 Ga. App. 823, 490 S.E.2d 415 (1997).
When a bank was sued by a homeowners' association for fees and assessments imposed on lots which the bank foreclosed on, and the bank's default was entered, the bank demonstrated a "proper case" for opening the default, under O.C.G.A. § 9-11-55(b), because the bank had acquired recorded title to the lots to secure a debt before the covenants imposing the challenged fees and assessments were recorded, so it set up a meritorious defense calling for a different result from that which would obtain if the default judgment was allowed to stand. Legacy Hills Residential Ass'n v. Colonial Bank, 255 Ga. App. 144, 564 S.E.2d 550 (2002).
Trial court did not err in permitting the corporate officer of two companies in receivership to answer the investors' complaint one day late as the officer was understandably confused by the several lawsuits filed against the officer and all of the materials necessary for compliance with the statute had been filed by the officer. Albee v. Krasnoff, 255 Ga. App. 738, 566 S.E.2d 455 (2002).
After a medical company established a meritorious defense based on excusable neglect, showed that the outcome of a suit might be different, and moved to open a default no more than two weeks late, the trial court did not abuse the court's discretion in opening the default pursuant to O.C.G.A. § 9-11-55(b). Henderson v. Quadramed Corp., 260 Ga. App. 680, 580 S.E.2d 542 (2003).
Trial court did not err in setting aside the default judgment and granting summary judgment to the driver based upon expiration of the two-year statute of limitations for personal injury claims as the driver paid all court costs, announced ready for trial, offered a meritorious defense (the statute of limitation) in the driver's motion and verified answer, and offered a showing of providential cause or excusable neglect under oath. Griffin v. Rutland, 259 Ga. App. 846, 578 S.E.2d 540 (2003).
In a personal injury action, and by reading O.C.G.A. § 9-11-15(a) in pari materia with O.C.G.A. § 9-11-21, because a plaintiff sued two parties, but substituted only one, the partnership originally sued was not required to file an answer absent an order from the court to do so, and hence could not be found in default; as a result, the trial court correctly found a proper case was made for the default to be opened. Marwede v. EQR/Lincoln L.P., 284 Ga. App. 404, 643 S.E.2d 766 (2007), cert. denied, 2007 Ga. LEXIS 504 (Ga. 2007).
Trial court did not err in allowing a lessee to open a default pursuant to O.C.G.A. § 9-11-55(b) because each of the four conditions precedent to opening a prejudgment default had been met; the lessee filed an answer, announced ready to proceed to trial, and filed a sworn affidavit setting forth a meritorious defense, and the default was the result of a one day miscalculation of the due date, not of a failure to file an answer. ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 690 S.E.2d 514 (2010).
Trial court did not abuse the court's discretion by granting a wife's motion to open her default under O.C.G.A. § 9-11-55(b) and allowing a creditor's case against her to proceed on the merits because the record supported the trial court's conclusion that each of the four conditions precedent for opening a default had been met; the wife believed that her attorney had filed an answer on her behalf, the attorney did file an answer on behalf of a debtor, the wife's husband, the parties proceeded with discovery, the wife immediately filed an answer and motion to open default once she realized that she was in default, and the creditor failed to establish any specific claim of prejudice resulting from the opening of the default. Thomas v. Brown, 308 Ga. App. 514, 707 S.E.2d 900 (2011).
Trial court did not abuse the court's discretion in opening the default judgment entered against a hotel because the hotel promptly sought to open the default upon learning of the mistake between in-house and outside counsel, there was no indication that the plaintiff sustained unique harm or specific prejudice from opening the default, and at the time of the hotel's motion to open the default, the hotel already had submitted to the trial court sworn witness testimony containing facts establishing the hotel's meritorious defense. Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013).
Trial court did not err in granting the employer's motion to open default and denying the employee's motion for default after the employer made a one-day miscalculation in filing the employer's answer to the petition to confirm arbitration. Bilbo v. Five Star Athlete Management, Inc., 334 Ga. App. 208, 778 S.E.2d 834 (2015).
Defendants had right to open default when trial court prematurely entered default judgment.
- Defendants in a RICO action failed to exercise the defendants' right to open a prematurely entered default judgment as a matter of right by filing an answer and costs within the 15-day period provided in O.C.G.A. § 9-11-55(a); instead, the defendants filed an appeal. However, the defendants were permitted to bring a motion to open the default under § 9-11-55(b). Florez v. State, 311 Ga. App. 378, 715 S.E.2d 782 (2011), cert. dismissed, 2012 Ga. LEXIS 64 (Ga. 2012).
Denial of motion to set aside default was reversible error.
- Because a contractor presented sufficient evidence showing that an assignee that sued the contractor had actual knowledge through its assignor of the contractor's physical address, yet failed to attempt service at that address before serving the Secretary of State, the trial court erred in denying the contractor's motion to set aside the default judgment entered in favor of the assignee. TC Drywall & Plaster, Inc. v. Express Rentals, Inc., 287 Ga. App. 624, 653 S.E.2d 70 (2007).
Trial court did not err in opening a default judgment as: (1) the movant satisfied the four conditions outlined under O.C.G.A. § 9-11-55(b); (2) the motion was verified and stated that the movant had responsive pleadings to file instanter, was ready to proceed to trial, and had a meritorious defense; and (3) the movant contemporaneously filed a verified answer to the complaint setting out the movant's defenses. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007).
Trial court erred in denying the county school district employees' motion to set aside a default judgment entered against the employees under O.C.G.A. § 9-11-55(b) in the parents' wrongful death action because while the employees were sued in both the employees' official and individual capacities, the parents' wrongful-death suit arose from actions the employees took in the employees' official capacities as employees of the school and, thus, the trial court erred as a matter of law in finding that the entry of the default judgment barred the employees from being able to assert that official immunity protected the employees from the parents' wrongful death action; official immunity is not a mere defense but rather an entitlement not to be sued that must be addressed as a threshold matter before a lawsuit may proceed. Cosby v. Lewis, 308 Ga. App. 668, 708 S.E.2d 585 (2011).
Harmful error required prior to opening default.
- While it was clear that the doctor satisfied the conditions of O.C.G.A. § 9-11-55 for a motion to open a prejudgment default, and while the doctor's affidavit created an issue as to whether the doctor was personally served with the patient's complaint, the trial court did not abuse the court's discretion in denying the motion to set aside the default judgment as the doctor did not show harmful error. Collier v. Cawthon, 256 Ga. App. 825, 570 S.E.2d 53 (2002).
When defendant's claim much larger than plaintiff's, court authorized to open default.
- Trial court was authorized to open the default, notwithstanding the defendant's failure to set forth a meritorious defense "under oath", when the complaint dealt on the complaint's face with only a relatively small indebtedness, while the default affected the defendant's right to assert a much larger claim which the defendant reasonably viewed as being independent of the claim sued upon. Ragan v. Smith, 188 Ga. App. 770, 374 S.E.2d 559 (1988).
Acquiescence in failure to pay costs.
- Defendant's acquiescence in vacation and opening of default judgment precluded appellate review of the claim that the required payment of costs had not been made. Robinson v. Moonraker Assocs., 205 Ga. App. 597, 423 S.E.2d 44 (1992).
Belief that complaint already answered.
- Since the defendants reasonably believed that the defendants already had answered the same complaint, the trial court was authorized to conclude that the defendants' failure to file a timely answer was not a wilful disregard of all court process. Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, Inc., 209 Ga. App. 562, 434 S.E.2d 124 (1993).
Belief that insurer was handling.
- Trial court did not abuse the court's discretion in opening the default in a negligence action against a physician and others after the physician forwarded the pleadings to an insurer and the insurer misplaced the documents; the defendants had reason to believe that the insurer was defending the suit, there was no prejudice to the plaintiffs in opening the default, and the defendants pled what appeared to be a meritorious defense. Shortnacy v. N. Atlanta Internal Med., P.C., 252 Ga. App. 321, 556 S.E.2d 209 (2001).
Refusal by clerk of proffer of costs.
- When the defendant's attorney attempted to pay costs before the hearing, but the clerk refused to accept the proffered check or cash pursuant to instructions from the trial court, the trial court did not err in finding that costs were paid as required by the statute. SunTrust Bank v. Perry, 233 Ga. App. 701, 505 S.E.2d 230 (1998).
Circumstances indicated meritorious defense.
- See Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 314 S.E.2d 199 (1984); Berklite v. Bill Heard Chevrolet Co., 239 Ga. App. 791, 522 S.E.2d 246 (1999).
Meritorious defense must be shown under oath.
- Trial court lacked discretion to open a default judgment since the meritorious defense set forth in the answer was not made under oath as the purported verification of the answer did not contain the signature of a notary or any other indication that it was made under oath. SunTrust Bank v. Perry, 233 Ga. App. 701, 505 S.E.2d 230 (1998).
No requirement of showing complete defeat of plaintiff's claim.
- Requirement of O.C.G.A. § 9-11-55(b) to set up a meritorious defense in order to open a default judgment did not require the defendant to show that it would completely defeat the plaintiff's claim. Johnson v. Am. Nat'l Red Cross, 253 Ga. App. 587, 569 S.E.2d 242 (2002), aff'd, 276 Ga. 270, 578 S.E.2d 106 (2003).
Effect of setting aside of default judgment.
- Once default judgment is set aside, case returns to the posture the case occupied prior to the entry of the default judgment, which posture is usually that of being in default. P.H.L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 S.E.2d 545 (1985).
No excusable neglect where defendant had notice even before service.
- When defense counsel had notice before a defendant was served with the complaint that the plaintiff had filed an action seeking declaratory relief, then the defendant did not show excusable neglect for failure to respond, although the defendant stated that the defendant suffered memory loss as a result of the accident which was the subject of the suit, counsel attempted to verify service with the clerk's office, and counsel suggested that there may have been some miscommunication between the defendant and counsel's office. Coleman v. Superior Ins. Co., 204 Ga. App. 78, 418 S.E.2d 390 (1992).
Refusal to open default had nothing to do with ruling as to notice.
- Analyzing a personal injury action filed against an insured, and a declaratory judgment action subsequently filed by an insurer, the Court of Appeals of Georgia erred in holding that an insured was estopped from asserting compliance with its insurer's policy provisions regarding notice, and additionally erred, on that basis, in reversing the denial of summary judgment to the insurer in the insurer's declaratory judgment action, as neither res judicata nor collateral estoppel barred inquiry into the question of whether the insureds' notice of a lawsuit to the insurer was timely; furthermore, even if the refusal to open the default was premised on the state court's finding that the insured failed to prove the merits of the insured's claim of insufficiency of service of process, this still would not equate to a ruling that the insured failed to provide the insurer with adequate notice. Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 629 S.E.2d 260 (2006).
Voluntary dismissal of joint tortfeasor did not void judgment against remaining defendants.
- Voluntary dismissal with prejudice of an alleged joint tortfeasor did not void the judgment entered against the remaining defendants, but only adjudicated the liabilities of that party; as it neither terminated the action nor rendered the default judgment void, the trial court did not err in refusing to set aside a default judgment. Mateen v. Dicus, 286 Ga. App. 760, 650 S.E.2d 272 (2007), 129 S. Ct. 89, 172 L. Ed. 2d 30 (2008).
Default properly opened after remand from federal court.
- In a whistleblower suit by a county employee, the trial court properly opened default under O.C.G.A. § 9-11-55(b) because the case had been removed to federal court and then remanded; the county could not file the county's answer until the state court case was reopened, and the county diligently monitored the state court docket and filed the county's answers the day the county learned the remand order had been docketed. Franklin v. Eaves, 337 Ga. App. 292, 787 S.E.2d 265 (2016).
2. As Matter of Right
Defendant is allowed 15 days as a matter of right to open default, upon payment of costs, and thereafter if case is still in default the plaintiff is entitled to judgment on the pleadings without trial, unless action is ex delicto or involves unliquidated damages. Lowrance v. Bank of LaFayette, 115 Ga. App. 788, 156 S.E.2d 158 (1967) (decided under former Code 1933, § 110-401).
Prerequisite that costs are paid.
- Right to open automatic default within 15 day period is expressly conditioned upon payment of costs. Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966) (decided under former Code 1933, § 110-401).
Right to open default judgment within 15 days upon payment of costs is absolute; any judgment entered prior thereto is premature, and must be set aside when proper motion is made and costs paid within 15-day period. Parker v. Branan, 108 Ga. App. 229, 132 S.E.2d 556 (1963) (decided under former Code 1933, § 110-401).
Plaintiff is not entitled to judgment by default until expiration of 15 day period during which defendant may, as a matter of right, open default by paying accrued costs and filing a defense to the action. Potts v. Smith Grain Co., 99 Ga. App. 270, 108 S.E.2d 285 (1959) (decided under former Code 1933, § 110-401).
Court has no discretion or jurisdiction to decide whether defendant may file defensive pleadings within 15-day period, except that the court, in the exercise of inherent power, would be the arbiter in case of a dispute as to whether or not costs had been paid. Whitsett v. Hester-Bowman Enters., Inc., 94 Ga. App. 78, 93 S.E.2d 788 (1956) (decided under former Code 1933, §§ 110-401 and 110-404).
Right of foreign corporation to opening of default within 45 days from service on Secretary of State.
- When the defendant foreign corporation filed an answer and paid accrued court costs within 45 days from the time of receipt of a copy of the petition in the office of the Secretary of State, the default against it could be opened as a matter of right. Avis, Inc. v. Graham, 217 Ga. 330, 122 S.E.2d 245 (1961) (decided under former Code 1933, § 110-401).
Opening default against foreign corporation.
- Judgment denying the defendant's motion to set aside the default judgment against the defendant was reversed because there was no evidence that the defendant, a foreign corporation, failed to answer or otherwise respond within 45 days after service of the summons and complaint was perfected upon the defendant via a commercial mailing service; thus, the case never went into default and the trial court was not authorized to enter a default judgment. Turfstore.Com, Inc. v. Hall, 348 Ga. App. 398, 823 S.E.2d 81 (2019).
Applicability of subsection (a) to cases when no judgment entered.
- Provisions of subsection (a) of this section as to opening default on payment of costs and filing of defensive pleadings relate to those cases when no judgment has been entered. Hill v. Hill, 234 Ga. 836, 218 S.E.2d 619 (1975).
No right to open default when costs not paid.
- When it appears from the record that the defendant has not paid costs, the defendant is not entitled to open the default as a matter of right. Hines v. Wingo, 120 Ga. App. 614, 171 S.E.2d 905 (1969).
When an appellant did not pay the costs during the 15-day grace period, the filing of the appellant's answer and counterclaim did not alone open the default as a matter of right. Hazzard v. Phillips, 249 Ga. 24, 287 S.E.2d 191 (1982).
Mere fact that plaintiff will not be prejudiced not justification.
- Although the discretion of the trial court in opening a default and permitting the defendant to plead will not be interfered with by the appellate courts unless manifestly abused, to the injury of the plaintiff, the Court of Appeals will not convert this principle to a right to have the default opened unless prejudice to the plaintiff is shown. Barone v. McRae & Holloway, 179 Ga. App. 812, 348 S.E.2d 320 (1986).
Applicability to probate proceedings.
- In a probate matter, a trial court erred by dismissing an executor's objection to the setting aside of certain real property as year's support in favor of an estate as the executor had filed an objection within 15 days of the default order amending the year's support order, pursuant to O.C.G.A. § 9-11-55(a), and by paying costs. The provisions of § 9-11-55(a) relating to the opening of default judgments as a matter of right within 15 days of default applied to a year's support proceedings in probate court. In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).
3. At Any Time Before Judgment
Subsection (b) of O.C.G.A. § 9-11-55 should be given liberal construction, in the promotion of justice and the establishment of the truth. Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981).
Rule permitting opening of default is remedial in nature and should be liberally applied for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside when the defendant acts with reasonable promptness and alleges a meritorious defense. Whatley v. Bank S., 185 Ga. App. 896, 366 S.E.2d 182, cert. denied, 185 Ga. App. 911, 366 S.E.2d 182 (1988).
Purpose of subsection (b) of this section is to furnish relief when there was an understandable misunderstanding. Cobb County Fair Ass'n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977); American Erectors, Inc. v. Hanie, 157 Ga. App. 687, 278 S.E.2d 196 (1981).
Subsection (b) of this section conveys very ample powers as to opening defaults; not for only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, when the judge from all the facts determines that a proper case has been made. Houston v. Lowes of Savannah, Inc., 136 Ga. App. 781, 222 S.E.2d 209 (1975).
Improper if any of conditions precedent not met.
- Generally, whether the trial court opens a default is a matter resting within the sound discretion of the trial court, but for the relief to be granted, subsection (b) of O.C.G.A. § 9-11-55 requires that there must be a motion, a meritorious defense, a legal excuse for late filing, and payment of costs. 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. Stewart, 166 Ga. App. 431, 304 S.E.2d 533 (1983).
Under subsection (b) of O.C.G.A. § 9-11-55, a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. Compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default. Grayson & Hollingsworth, Inc. v. C. Henning Studios, Inc., 194 Ga. App. 531, 391 S.E.2d 8, cert. denied, 194 Ga. App. 911, 391 S.E.2d 8 (1990).
Three grounds for opening default.
- Subsection (b) of this section provides three grounds for opening default: providential cause, excusable neglect, and when the judge from all the facts determines that a proper case has been made. Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 219 S.E.2d 115, answer conformed to, 136 Ga. App. 781, 222 S.E.2d 209 (1975).
Subsection (b) of this section provides three ways in which a default may be opened. Cobb County Fair Ass'n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977).
O.C.G.A. § 9-11-55 states three grounds upon which a trial court may open a default: providential cause, excusable neglect, and a proper case. The Supreme Court will affirm the trial court's decision to open default if the record sustains the decision under any of the three noted grounds. Copeland v. Carter, 247 Ga. 542, 277 S.E.2d 500 (1981).
Subsection (b) of O.C.G.A. § 9-11-55 allows a prejudgment default to be opened if there is a showing of any one of the following: (1) providential cause; (2) excusable neglect; and (3) a proper case. Womack Indus., Inc. v. Tifton-Tift County Airport Auth., 199 Ga. App. 237, 404 S.E.2d 618 (1991).
There is a difference between tests for opening default under the first two grounds under subsection (b) of this section, i.e., providential cause and excusable neglect, and that of the third; the first two grounds have been narrowly defined in case law and do not allow exercise of the broad discretion of the third. Clements v. United Equity Corp., 125 Ga. App. 711, 188 S.E.2d 923 (1972); Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).
"Excusable neglect" is defined as neglect which might have been an act of a reasonably prudent person under the same circumstances. Ezzard v. Morgan, 118 Ga. App. 50, 162 S.E.2d 793 (1968); Howell Enters., Inc. v. Ray, 163 Ga. App. 68, 293 S.E.2d 24 (1982).
Excusable neglect cannot be determined by any fixed rule but rather must be determined by the facts of the case. This determination is within the sound discretion of the trial court and will not be disturbed by the appellate court absent an abuse of discretion. First Nat'l Ins. Co. of Am. v. Thain, 107 Ga. App. 100, 129 S.E.2d 381 (1962) (decided under former Code 1933, § 110-404); Dever v. Lee, 188 Ga. App. 483, 373 S.E.2d 224, cert. denied, 188 Ga. App. 911, 373 S.E.2d 224 (1988).
"Excusable neglect" implies not simply any, but reasonable or excusable neglect as to, or occasioned by, some fact, or something that has or has not been done, of which the complaining party ought to have knowledge, and which, if the party had such knowledge, might have prevented default. First Nat'l Ins. Co. of Am. v. Thain, 107 Ga. App. 100, 129 S.E.2d 381 (1962) (decided under former Code 1933, § 110-404).
Circumstances determine finding of excusable neglect.
- What constitutes "excusable neglect" depends upon the circumstances in each case. Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404).
Term "excusable neglect" does not mean gross negligence. McMurria Motor Co. v. Bishop, 86 Ga. App. 750, 72 S.E.2d 469 (1952); Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); First Nat'l Ins. Co. of Am. v. Thain, 107 Ga. App. 100, 129 S.E.2d 381 (1962); Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404); Ezzard v. Morgan, 118 Ga. App. 50, 162 S.E.2d 793 (1968); 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); Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973); Cobb County Fair Ass'n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977); Hendricks v. Hubert, 158 Ga. App. 371, 280 S.E.2d 396 (1981).
Excusable neglect does not mean willful disregard of the process of the court, but refers to cases when there is a reasonable excuse for failing to answer. McMurria Motor Co. v. Bishop, 86 Ga. App. 750, 72 S.E.2d 469 (1952); Haynes v. Smith, 99 Ga. App. 433, 108 S.E.2d 772 (1959); First Nat'l Ins. Co. of Am. v. Thain, 107 Ga. App. 100, 129 S.E.2d 381 (1962); Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404); Ezzard v. Morgan, 118 Ga. App. 50, 162 S.E.2d 793 (1968); 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); Cate v. Harrell, 128 Ga. App. 219, 196 S.E.2d 155 (1973).
When excusable neglect justifies opening.
- Default may be opened for excusable neglect, provided all other aspects of law are complied with as to opening a default. Cobb County Fair Ass'n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977).
Parties are bound to take notice of time and place of trial and of when their presence is required; even illiteracy does not excuse one from using diligence to ascertain correctly the contents of a notice duly served. Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404).
Failure to read and comply with process as gross negligence.
- It is error to grant motion to open default except for providential cause or excusable neglect; failure or even inability to read and comply with process is not a reasonable excuse but constitutes gross negligence. Hatcher v. Scarboro, 113 Ga. App. 103, 147 S.E.2d 361 (1966) (decided under former Code 1933, § 110-404).
Press of business as insufficient excuse.
- Press of business, even when accompanied by mistaken belief as to time when defensive pleadings may be filed, is no ground to open default. Snow v. Conley, 113 Ga. App. 486, 148 S.E.2d 484 (1966) (decided under former Code 1933, § 110-404).
Excusable neglect was not shown when the defendant's failure to file the defendant's answer was a result of a mistake in the office of the defendant's attorney coupled with the attorney's busy trial schedule. United States Xpress, Inc. v. W. Timothy Askey & Co., 194 Ga. App. 730, 391 S.E.2d 707 (1990).
Defendant's failure to timely forward the complaint and summons to the defendant's attorney due to a mix-up in the defendant's office does not constitute excusable neglect, providential cause, or a proper case for the opening of default under subsection (b) of O.C.G.A. § 9-11-55. 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).
"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 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).
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).
Default judgment that merely decided the issue of liability did not dispose of the entire controversy and, accordingly, did not constitute a final judgment to preclude application of O.C.G.A. § 9-11-55(b) and require application of O.C.G.A. § 9-11-60; opening the default was not an abuse of discretion given there was some evidence supporting a third-party defendant's claim that the third party did not receive a court order requiring an answer to a cross claim. Healthy-IT, LLC v. Agrawal, 343 Ga. App. 660, 808 S.E.2d 876 (2017).
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 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 motion, 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).
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).
"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 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 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).
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. 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. 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 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).
In accord with Archer v. Monroe. See 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).
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).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judgments, § 232 et seq.
Fraud in Obtaining or Maintaining Default Judgment, 10 POF2d 427.
C.J.S.- 49 C.J.S., Judgments, §§ 253 et seq., 516, 519.
ALR.
- Duty of court upon opening default to defer vacation of judgment or order until result of trial on merits, 98 A.L.R. 1380.
Abandonment of or withdrawal from case by attorney as ground for opening or setting aside judgment by default, 114 A.L.R. 279.
Filing cross petition or other step amounting of general appearance after judgment based upon valid constructive service as affecting right under statute to open judgment, 122 A.L.R. 159.
Waiver of right to default judgment, 124 A.L.R. 155, 64 A.L.R.5th 163.
Doctrine of res judicata as applied to judgments by default, 128 A.L.R. 472; 77 A.L.R.2d 1410.
Mistaken belief or contention that defendant had not been served, or had not been legally served, with summons, as ground for setting aside default judgment, 153 A.L.R. 449.
Validity, construction, and application of statutes providing for entry of default judgment by clerk without intervention of court or judge, 158 A.L.R. 1091.
Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496.
Reliance by employee codefendant on promise or assumption that employer would defend in employee's behalf as ground for vacation of default judgment, 16 A.L.R.2d 1139.
Withdrawal or vacation of appearance, 64 A.L.R.2d 1424.
Doctrine of res judicata as applied to default judgments, 77 A.L.R.2d 1410.
Failure of liability insurer, after notification, to defend suit against insured, as warranting opening default against insured on ground of inadvertence or excusable neglect, 87 A.L.R.2d 870.
Propriety of default judgment against defendant, without introduction of evidence, in quo warranto proceeding, 92 A.L.R.2d 1121.
Necessity of taking proof as to liability against defaulting defendant, 8 A.L.R.3d 1070.
Appealability of order setting aside, or refusing to set aside, default judgment, 8 A.L.R.3d 1272.
Defaulting defendant's right to notice and hearing as to determination of amount of damages, 15 A.L.R.3d 586.
Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255.
Failure to give notice of application for default judgment where notice is required only by custom, 28 A.L.R.3d 1383.
Failure of party or his attorney to appear at pretrial conference, 55 A.L.R.3d 303.
What amounts to "appearance" under statute or rule requiring notice, to party who has "appeared," of intention to take default judgment, 73 A.L.R.3d 1250.
Fraud in obtaining or maintaining default judgment as ground for vacating or setting aside in state courts, 78 A.L.R.3d 150.
Judgment in favor of plaintiff in state court action for defendant's failure to obey request or order to answer interrogatories or other discovery questions, 30 A.L.R.4th 9.
What constitutes "appearance" under Rule 55(b)(2) of Federal Rules of Civil Procedure, providing that if party against whom default judgment is sought has "appeared" in action, that party must be served with notice of application for judgment, 139 A.L.R. Fed 603.