Constructamax v. Andy Bland Const., Inc.

• Decision Date: 11 July 2006
• Docket Number: No. A06A0752.,A06A0752.
• Citation: 280 Ga. App. 403,634 S.E.2d 168
• Parties: CONSTRUCTAMAX, INC. v. ANDY BLAND CONSTRUCTION, INC.
• Court: Georgia Court of Appeals

280 Ga. App. 403

634 S.E.2d 168

CONSTRUCTAMAX, INC. v. ANDY BLAND CONSTRUCTION, INC.

No. A06A0752.

Court of Appeals of Georgia.

July 11, 2006.

COPYRIGHT MATERIAL OMITTED

Louis B. Stout, Roswell, for Appellant.

Robert J. Moye III, Atlanta, for Appellee.

BERNES, Judge.

Constructamax, Inc. appeals from the trial court's order denying its motion to open default and entering a default judgment in favor of appellee Andy Bland Construction, Inc. ("ABC"). For the reasons that follow, we affirm.

ABC filed a complaint against Constructamax in the Fulton County Superior Court, alleging that Constructamax owed it an unpaid balance for work performed under a contract for construction of the Fulton County Juvenile Court and the Dunbar Neighborhood Library. Constructamax was served with the complaint at its principal place of business in Long Island, New York, on April 23, 2004. On May 4, 2004, 20 days before the answer was due to be filed, Constructamax's in-house counsel contacted ABC's counsel, indicated that Constructamax intended to retain Georgia counsel and requested an extension of time for the filing of an answer. See OCGA § 9-11-12(a). ABC's counsel did not agree to an extension, but did agree that he would not move for a default judgment provided Constructamax's answer was filed by June 7, 2004.

Constructamax failed to file an answer by June 7, 2004. On June 15, 2004, Constructamax's in-house counsel and ABC's counsel spoke by telephone again. During this conversation, ABC's counsel stated that he could not reasonably advise his client to agree to an extension of time for the filing of Constructamax's answer in view of Constructamax's failure to obtain local representation for almost two months. He did, however, agree to recommend that ABC forgo filing a motion for default judgment provided Constructamax's answer was filed by June 18, 2004. Constructamax did not file an answer by that date and had not filed an answer as of August 6, 2004, the date on which ABC filed a motion for default judgment against Constructamax.

On August 10, 2004, Constructamax filed its motion to open default, attaching its proposed answer and counterclaim with an affidavit in support of the motion. Following a hearing on the matter, the trial court denied Constructamax's motion to open default and entered default judgment in favor of ABC. The trial court found that Constructamax had not met the requirements of OCGA § 9-11-55(b) because it failed to show a meritorious defense and the existence of providential cause, excusable neglect, or a proper case.

1. Constructamax contends that the trial court erred in denying its motion to open default. We disagree.

Under OCGA § 9-11-55(b), 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.

(Citations and punctuation omitted; emphasis in original.) Pinehurst Baptist Church v. Murray, 215 Ga.App. 259, 261(1), 450 S.E.2d 307 (1994). "The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge." (Citations and punctuation omitted.) Follmer v. Perry, 229 Ga.App. 257, 258(1), 493 S.E.2d 631 (1997).

Constructamax argues that the trial court erred in finding that it had not established a meritorious defense. We need not resolve this issue because "the defendant must have not only a meritorious defense but [also] a legal excuse for [its] non-appearance." (Citation and punctuation omitted.) West Court Square v. Assayag, 131 Ga.App. 690, 691(2), 206 S.E.2d 579 (1974). See also Atlanta Med. Accounting Corp. v. Financial Software, 227 Ga.App. 311, 312, 489 S.E.2d 93 (1997). "[O]ne who moves to open a default must allege and prove some reason good in law why he failed to make a defense at the time he was required by law to present it." (Citation and punctuation omitted.) Minnesota Mut. Life Ins. Co. v. Love, 120 Ga.App. 502, 503, 171 S.E.2d 361 (1969).

The only explanation offered by Constructamax for its failure to file a timely answer was its belief that its joint venture partner was retaining local counsel to defend the case. There is no evidence in record to show that Constructamax was diligent in its efforts to obtain or confirm representation by local counsel.¹ The record reflects that Constructamax was fully aware of the pending lawsuit at least 20 days before the answer was due to be filed. Constructamax's in-house counsel knew as early as June 7 that Constructamax was in default. By the time Constructamax finally filed its motion to open default two months later, two extended deadlines had expired and approximately 109 days had passed since it had been served with the complaint.² Constructamax offered no excuse for this continued delay in moving to open the default, a fact properly considered by the trial court. McBee v. Benjamin, 272 Ga.App. 567, 570, 612 S.E.2d 802 (2005); Follmer, 229 Ga.App. at 260(1), 493 S.E.2d 631. Under these circumstances, it cannot be said that the trial court abused its discretion in denying the motion to open default for failure to show providential cause, excusable neglect, or a proper case. See McBee, 272 Ga.App. at 570, 612 S.E.2d 802; Follmer, 229 Ga.App. at 260(1), 493 S.E.2d 631; Atlanta Med. Accounting Corp., 227 Ga.App. at 312, 489 S.E.2d 93; Bryant v. Haynie, 216 Ga. App. 430, 431-432(1), 454 S.E.2d 533 (1995); Pulliam v. Nichols, 202 Ga.App. 95, 96, 413 S.E.2d 215 (1991). Compare Sears, Roebuck & Co. v. Ramey, 170 Ga.App. 873, 874-875, 318 S.E.2d 740 (1984) (trial court abused its discretion in refusing to open default when appellant undertook to open default on the day after learning that the...