Dockery v. Haedong Indus. Co.

• Decision Date: 08 June 2020
• Docket Number: A20A0767, A20A0768
• Parties: DOCKERY et al. v. HAEDONG INDUSTRIES CO., LTD. et al; and vice versa.
• Court: Georgia Court of Appeals

355 Ga.App. 436

844 S.E.2d 496

DOCKERY et al.

v.HAEDONG INDUSTRIES CO., LTD. et al; and vice versa.

A20A0767, A20A0768

Court of Appeals of Georgia.

June 8, 2020

Bondurant Mixson & Elmore, Michael B. Terry, Jane D. Vincent ; Penn Law, Darren W. Penn, Alexandra C. Cole, William L. Ballard ; Ripper Law Firm, Eric B. Ripper, for Dockery et al.

Alston & Bird, Daniel F. Diffley, Lara C. Tumeh, for Haedong Industries Co., Ltd. et al.

Barnes, Presiding Judge.

In this wrongful death action, default judgment was entered against two defendants. The trial court later granted those defendants’ motion to set aside the judgment, but denied their motion to open the default. All parties have appealed. For the reasons that follow, we vacate the order that ruled on the defendants’ motion, and remand the cases for proceedings not inconsistent with this opinion.

On March 2, 2012, Adam Wingo was decapitated when his body became entangled in the wire drawing machine on which he was working at his place of employment located in Flowery Branch, Hall County. On February 10, 2014, Christina Michelle Dockery, as the administrator of the estate, and as the next friend of Wingo's minor child, J. S. M., filed the underlying complaint.¹ Among the defendants named were: (i) Haedong Industries Co., Ltd. a South Korean manufacturer of wire drawing machines; and (ii) Inhwa Precision Corporation, Ltd., the South Korean parent company of Haedong. Dockery ("Plaintiff") alleged in her complaint that Haedong designed, manufactured, and sold the machine, which was unreasonably dangerous because it was defectively designed and manufactured and failed to protect users from amputation and death. In particular, the complaint alleged, the machine lacked sufficient warnings and lacked guarding on all pinch points and rotating parts.

Neither Haedong nor Inhwa (collectively, "Defendants") filed an answer. On May 19, 2017, the trial court entered default against Defendants, then set a trial for damages for September 13, 2018. On the scheduled date, the trial court conducted a damages trial, and on September 17, 2018, the trial court entered judgment in favor of Plaintiff, finding Defendants "jointly and severally" liable for $25,722,644.26.

On December 13, 2018, Defendants filed two joint motions: (i) Motion to Set Aside the Default Judgment, relying upon OCGA § 9-11-60 (d) (1) (pertaining to the lack of personal jurisdiction), and (d) (3) (pertaining to a nonamendable defect on the face of the record or pleadings); and (ii) a Motion to Open the Default, pursuant to OCGA § 9-11-55 (b). The trial court conducted a hearing on Defendants’ motions, then entered on August 15, 2019, an order disposing of both motions. Therein, the court expressly ruled:

Defendants’ Motion to Open Default is DENIED. Further, it appears that Plaintiff's claim seeks the recovery of unliquidated damages requiring proof at trial, said being attorney's fees actually incurred pursuant to OCGA § 44-5-60 (e).

IT IS THEREFORE ORDERED Defendants’ Motion to Set Aside Verdict is GRANTED and the [Judgment] be set aside due to a nonamendable defect pursuant to OCGA § 9-11-60 (d) (3). A jury trial will be had on damages and proper apportionment of said damages. Discovery is extended until March 1, 2020, solely on the issue of damages and apportionment.

From that order, these interlocutory companion appeals arise. In Case No. A20A0767, Plaintiff enumerates as error rulings related to the grant of Defendants’ motion to set aside the judgment. In Case No. A20A0768, the Defendants contest the denial of their motion to open the default.

Case No. A20A0767

1. Plaintiff contends that the trial court erred by setting aside the judgment under OCGA § 9-11-60 (d) (3). That provision pertinently states: "A motion to set aside may be brought to set aside a judgment based upon: ... [a] nonamendable defect which appears upon the face of the record or pleadings."

The trial court's order indicates that the basis for granting Defendants’ motion to set aside pursuant to OCGA § 9-11-60 (d) (3) was "Plaintiff's claim seek[ing] the recovery of unliquidated damages requiring proof at trial, said being attorney's fees actually incurred pursuant to OCGA § 44-5-60 (e)."² With that, the order provided for a trial "on damages and proper apportionment of said damages,"³ and allowed time for discovery "solely on the issue of damages and apportionment."

Plaintiff does not address the grant of Defendants’ motion to set aside on the apparent basis stated. Instead, Plaintiff posits that the trial court "erroneously granted Defendants’ motion based on an alleged defect related to apportionment." Plaintiff goes on to argue:

There was no apportionment error, however, because (a) the liability of Inhwa was derivative of the fault of its subsidiary Haedong (as Defendants expressly and repeatedly argued in the trial court) with no independent negligence by Inhwa alleged or shown, so any fault was indivisible; (b) the Defendants did not provide the statutory 120-day notice to apportion damages to nonparties; and (c) even assuming apportionment was legally available, the Defendants failed to meet their burden of proof on this affirmative defense because they presented no evidence of shared liability at the damages trial.

Not only are these not nonamendable defects on the face of the record as required by [OCGA] § 9-11-60 (d) (3), but to apportion damages under these facts would have been reversible error. The trial court's order setting aside the judgment was an abuse of discretion and this Court should reverse.

(Footnotes omitted; emphasis in original.)

Similarly, Defendants do not address the trial court's referenced basis for vacating the judgment. Instead, they counter Plaintiff's position, reasserting arguments proffered to the trial court, such as:

The default judgment here violated the Georgia Tort Reform Act because it did not apportion fault among Haedong, Inhwa, and all other current or former defendants .... Rather, the default judgment was based exclusively on evidence from Plaintiff as to the issues of Defendant Haedong's and Defendant Inhwa's liability.

As Defendants summarize, the failure to apportion and instead find joint and several liability in the default judgment amounted to a nonamendable defect under OCGA § 9-11-60 (d) (3).

Considering again the apparent basis for setting aside the judgment, we are unable to conclude that a nonamendable defect exists as referenced by the trial court's order. Neither side has either provided record citations concerning any pending motion for attorney fees pursuant to OCGA § 44-5-60 (e)⁴ or disputed the existence of a pending request by Plaintiff for such fees.⁵ Nor has either side provided record citations for a transcript of the hearing upon Defendants’ motion to set aside. And at any rate, the trial court's order, while granting Defendants’ motion to set aside (apparently based upon a request for attorney fees), does not specify the extent to which such default judgment is set aside.⁶ See, e.g., Martin v. Six Flags Over Ga. II, L.P. , 301 Ga. 323, 340 (III), 801 S.E.2d 24 (2017) (discussing options for correcting errors regarding damages, and explaining that "where correction of an apportionment error involves only the identification of tortfeasors and assessment of relative shares of fault among them, there is no sound reason to disturb the jury's findings on liability or its calculation of damages sustained by the plaintiff"). Given these circumstances, we vacate the contested judgment and remand the case with direction for the trial court to make explicit any basis for its decision(s) relative to whether Defendants’ motion to set aside should be granted. Any order granting Defendants’ motion should further specify the extent to which the judgment is set aside.

Finally, we recognize that Defendants seek to preserve the grant of their motion to set aside, not only advancing in this Court the arguments set out above, but further proposing that "this Court may affirm on any one of three other grounds: the lack of personal jurisdiction, the entry of judgment based on an inoperative pleading, or the improper piercing of the corporate veil." But it appears that the contested ruling did not rest upon any of those grounds.⁷ Also determining whether Defendants made requisite showings based upon those grounds vests in the first instance in the discretion of the trial court. See Stamey v. Policemen's Pension Fund Bd. of Trustees , 289 Ga. 503, 504 (1), 712 S.E.2d 825 (2011) (recognizing that a default judgment may be set aside under OCGA § 9-11-60 (d) and that an appellate...