Bowen v. Savoy

Citation839 S.E.2d 546
Decision Date28 February 2020
Docket NumberS19G0278
Parties BOWEN et al. v. SAVOY et al.
CourtSupreme Court of Georgia

839 S.E.2d 546

BOWEN et al.
SAVOY et al.


Supreme Court of Georgia.

Decided: February 28, 2020

Patrick W. McKee, Law Office of Patrick W. McKee, LLC, Newnan, Georgia 30263, for Appellant.

Robert Scott Carlson, Lauren Jill Miller, Harry W. MacDougald, Caldwell, Propst & Deloach, LLP, Atlanta, Georgia 30346, for Appellee.

Benham, Justice.1

We granted certiorari in this case to address the following question: To show a proper case for opening default under OCGA § 9-11-55 (b), must the defendant provide a reasonable explanation for the failure to file a timely answer? For the reasons that follow, we answer that question in the negative and therefore reverse the judgment of the Court of Appeals and remand this case for consideration consistent with this decision.

In 2016, Priscilla Savoy, individually and as executor of her mother's estate, filed suit against her sisters Eleanor Bowen and Margaret Innocenti2 (collectively "defendants") contending that they colluded to appropriate funds from their mother's estate for their own use. The defendants were served with the summons and complaint on June 20 and 22, 2016. On July 20, 2016, the defendants filed in the trial court a motion to dismiss the complaint for lack of personal jurisdiction, which was supported by a sworn affidavit executed by Bowen denying the factual allegations raised in the complaint. When the defendants did not answer the complaint within 30 days of service, as required by OCGA § 9-11-12 (a), the case "automatically [became] in default," OCGA § 9-11-55 (a).

Litigation continued between the parties for another six months until, on February 15, 2017, the trial court denied the defendants' motion to dismiss. Six days later, on February 21, the defendants filed an untimely answer. On February 27, Savoy filed a motion for entry of default judgment. That same day, the defendants filed a motion to set aside the default arguing, in relevant part, that a proper case had been made for opening the default, in support of which their counsel filed a sworn affidavit in which he accepted responsibility for the defendants' failure to file a timely answer. Counsel explained that, based upon his good faith (mis)understanding that the Civil Practice Act "allow[s] for Defendants who contend the

839 S.E.2d 548

[trial court] lacks jurisdiction the option to file a Motion to Dismiss as opposed to an answer," he delayed filing the defendants' answer until the trial court ruled on the motion to dismiss.

The trial court granted Savoy's motion for default judgment on August 23 and concomitantly issued an order denying the defendants' motion to set aside the default. In denying the motion to set aside the default, the trial court concluded that the defendants, in seeking to establish a proper case to open the default, had failed to provide a "reasonable explanation" for their failure to file a timely answer. Thereafter, the trial court granted the defendants' request for a certificate of immediate review. The Court of Appeals granted the defendants' application for interlocutory review but ultimately affirmed the judgment of the trial court and its conclusion that some reasonable explanation was required to open a default under the "proper case" ground. See OCGA § 9-11-55 (b). It is that conclusion we address today, and, in doing so, we must consider the proper construction of OCGA § 9-11-55 (b).

"As in all appeals involving the construction of statutes, our review is conducted under a de novo standard." Hankla v. Postell , 293 Ga. 692, 693, 749 S.E.2d 726 (2013). So we turn to the statutory language, mindful that, "[w]hen interpreting a statute, we must give the text its plain and ordinary meaning, view it in the context in which it appears, and read it in its most natural and reasonable way." State v. Coleman , 306 Ga. 529, 530, 832 S.E.2d 389 (2019).

The Civil Practice Act provides a remedy for those defendants who, by failing to answer a complaint within 30 days of service, find themselves in default. See OCGA § 9-11-55 (the "Default Judgment Statute"). A default may be opened "as a matter of right within 15 days of the day of default." OCGA § 9-11-55 (a). In anticipation of those situations which might warrant the opening of default beyond that timeframe, the Default Judgment Statute also provides, in pertinent part:

At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened [1] for providential cause preventing the filing of required pleadings or [2] for excusable neglect or [3] where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.

(Emphasis and brackets supplied.) OCGA § 9-11-55 (b). From the use of the disjunctive "or," it is clear that the statute establishes three distinct grounds upon which default may be opened – providential cause, excusable neglect, or...

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