Bowen v. Savoy

• Decision Date: 28 February 2020
• Docket Number: S19G0278
• Court: Georgia Supreme Court
• Parties: BOWEN et al. v. SAVOY et al.

308 Ga. 204

839 S.E.2d 546

BOWEN et al.

v.SAVOY et al.

S19G0278

Supreme Court of Georgia.

Decided: February 28, 2020

Patrick W. McKee, for appellants.

Caldwell, Propst & DeLoach, Robert S. Carlson, Lauren J. Miller, Harry W. MacDougald, for appellees.

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 in Bowen v. Savoy , 347 Ga. App. XXV (A18A1001) (Sept. 25, 2018) (unpublished) and remand this case for consideration consistent with this decision.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 [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 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 proper case. See Karan, Inc. v. Auto-Owners Ins. Co. , 280 Ga. 545, 547, 629 S.E.2d 260 (2006).³

Although our present inquiry is focused on the proper case ground, an understanding of the two other grounds – providential cause and excusable neglect – is informative because we must "avoid a construction that makes some language mere surplusage," GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc. , 306 Ga. 829, 841 (3), 834 S.E.2d 27 (2019), which could occur were we to ascribe the same meaning to two distinct phrases. Neither the Default Judgment Statute nor the Code defines providential cause, excusable neglect, or proper case, so "we must examine the meaning of those words in their broader context, including other legal authorities which may inform our understanding of the phrase's meaning in this statute." Id. at 834, 834 S.E.2d 27.

The phrase "providential cause" is a term of art, and its usage is confined almost exclusively to this state. By 1895,⁴ the phrase had been part of Georgia law for the better part of the nineteenth century,⁵ and its meaning was well settled by this Court. "When the legislature uses such a term of art, it presumably adopts the longstanding interpretation of that term unless it says otherwise." Hourin v. State , 301 Ga. 835, 839 (2) (a), 804 S.E.2d 388 (2017). Our precedent indicates that providential cause generally encompasses events over which a party or his attorney had no control, including the illness of a party, see Phillips v. Taber , 83 Ga. 565, 571-572, 10 S.E. 270 (1889), or his lead counsel, Printup v. Mitchell , 19 Ga. 586, 588 (1856) ; the death of a party, see Dougherty v. Fogle , 48 Ga. 615, 618 (1873) ; the absence of counsel due to military service, see Dalton City Co. v. Dalton Mfg. Co. , 33 Ga. 243, 249 (1862) ; and acts of God, see Carhart & Ross & Co. v. Jno. B. Ross & Co. , 15 Ga. 186, 188 (1854) ("Will not even the act of God, sickness, high-waters, or any other Providential cause, protect [a garnishee] from this [financial penalty]?"). Providential cause generally does not embrace those circumstances that could have been avoided by the defaulting party's exercise of due diligence. See Ex parte Bradley , 63 Ga. 566, 567-568 (1879) ; Smith v. Brand , 44 Ga. 588, 591 (1872).

The term "excusable neglect" is likewise a term of art,⁶ which Black's Law Dictionary dates to 1855. See Black's Law Dictionary (11th ed. 2019). In one of this Court's earliest decisions to construe the predecessor to the Default Judgment Statute, Brucker v. O'Connor , 115 Ga. 95, 41 S.E. 245 (1902), we addressed the excusable neglect ground and defined its proper scope: " ‘Excusable neglect’ does not mean gross negligence. It does not mean a willful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer." (Emphasis omitted.) Brucker , 115 Ga. at 96, 41 S.E. 245. This Court's subsequent decisions concerning the excusable neglect ground have remained consistent with this definition. See, e.g., In re Turk , 267 Ga. 30, 30-31 (1), 471 S.E.2d 842 (1996) (declining to allow attorney subject to disciplinary proceeding to open default under excusable neglect ground where attorney's stated reasons for his failure to answer were "personal problems; numerous office moves resulting in disruption of his mail service; improper calendaring of the response date; misunderstanding of the bar rules; and his preoccupation with a prior disciplinary proceeding"); Ga. Farm Bldgs., Inc. v. Willard , 170 Ga. App. 327, 330 (4), 317 S.E.2d 229 (1984) ("The term ‘excusable neglect,’ as used in this code section, refers to a ‘reasonable excuse’ for failing to answer, as distinguished from willful disregard of the process of the court.").

Turning to the final ground and the one at issue here, this Court has explained that the proper case ground is the broadest of the three, see Cardinal Robotics v. Moody , 287 Ga. 18, 21, 694 S.E.2d 346 (2010), and permits "the reaching out to take in every conceivable case where injustice might result if the default were not opened," Axelroad v. Preston , 232 Ga. 836, 837, 209 S.E.2d 178 (1974). In BellSouth Telecomms. v. Future Comms. , 293 Ga. App. 247, 250 (2), 666 S.E.2d 699 (2008), however, the Court of Appeals, while recognizing the expansive scope of the proper case ground, held that a default may be opened under that ground "only where a reasonable explanation for the failure to timely answer exists." In reaching this conclusion, the BellSouth court relied on a line of cases seemingly derived from a misreading of Brucker , where this Court said that "a judge [has] no authority to open a default ... for reasons which fall short of a reasonable excuse for the negligent failure to answer." Brucker , 115 Ga. at 96, 41 S.E. 245. However, considered in its original context and in conjunction with the statutory language, Brucker 's requirement of a "reasonable excuse" is dispositive only in the excusable neglect context. See Houston v. Lowes of Savannah, Inc. , 235 Ga. 201,...