First Union Nat. Bank of Georgia v. Floyd
| Decision Date | 05 December 1990 |
| Docket Number | No. A90A1947,A90A1947 |
| Citation | 400 S.E.2d 393,198 Ga.App. 99 |
| Parties | FIRST UNION NATIONAL BANK OF GEORGIA v. FLOYD et al. |
| Court | Georgia Court of Appeals |
Wallace K. Askew, Pine Mountain, Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shellhouse, Atlanta, for appellant.
James W. Wallis, Jr., Carrollton, Kenneth A. Smith, Atlanta, for appellees.
By mistake, the defendant in this case allowed the complaint to go into default. The initial mistake evolved into what may be considered a procedural nightmare.
Thomas Marvin Floyd, Sr., now deceased, held a joint checking account with his wife as well as a safety deposit box at the Pine Mountain branch of defendant First Union National Bank of Georgia. On June 30, 1988 plaintiff Cindy F. Smith, decedent's granddaughter, presented the bank with what she purported to be a power of attorney in her favor signed by the decedent. Out of concern for the validity of the document, defendant bank refused to honor plaintiff's request to liquidate the account and give her access to the lock box. Later in the day, decedent's wife withdrew the funds in the checking account and gained access to the lock box. Plaintiffs Smith and Thomas F. Floyd, Jr., as co-executors of the deceased's estate, filed suit against the widow for conversion. That suit was settled. A separate action, out of which this appeal arose, was filed against the bank for conversion seeking actual damages as well as punitive damages and attorney fees for the bank's alleged wrongful refusal to honor the power of attorney.
The complaint was served on the manager of defendant bank's Pine Mountain branch. The local officer forwarded suit papers to defendant's legal department in Atlanta. Responsive pleadings were not timely filed and the trial court entered a default judgment against the bank as to liability, preserving the issue of damages for trial.
Since the entry of the default judgment, defendant bank has filed three separate motions to open the default. The order denying the initial motion, entered March 8, 1989, states that "the record of the case as it stands does not show a proper case in which to open a Default." Before the initial motion was ruled upon, defendant filed another motion entitled "Motion to Open Default and Motion to Withdraw and/or Amend Statutory Admissions," requesting the court not only to open default and permit it to file a timely answer to the complaint but also to permit it to respond to plaintiffs' requests for admissions, which were filed with the complaint but were also untimely answered. Because the trial judge who denied the initial motion had, within the same order, recused herself from further involvement with the case, the second motion was ruled on by a second judge who, on June 20, 1990, granted a hearing on defendant's motion to withdraw its statutory admission to plaintiffs' requests for admissions but denied, without explanation or discussion, the renewed motion to open default. Defendant was ultimately permitted to withdraw its statutory admissions and to file a written response to plaintiffs' requests by consent order dated June 30. Once the written responses were made part of the record, defendant moved a third time to open the default judgment and a third time it was denied. It is from this third denial, entered October 23, 1989, that the defendant filed a motion for interlocutory appeal which this court denied.
1. This appeal was initiated when the plaintiffs filed a timely notice of appeal after their motion for interlocutory appeal was granted. On the same day defendant filed a notice of cross-appeal. Plaintiffs' appeal was subsequently dismissed, not for lack of jurisdiction but by voluntary withdrawal by the plaintiffs. Because this court properly had jurisdiction of plaintiffs' appeal it also had jurisdiction of the cross-appeal which was filed before the appeal was withdrawn. Pursuant to OCGA § 5-6-48(e), dismissal of the appeal does not affect the validity of a cross-appeal. It is only when the appeal is dismissed for lack of jurisdiction that a cross-appeal which does not have an independent ground for jurisdiction must also be dismissed. See Jones Roofing, etc., Co. v. Roberts, 179 Ga.App. 169, 345 S.E.2d 683 (1986). Unlike the jurisdictional posture in Jones, this court was vested with jurisdiction of the appeal and the saving provision of OCGA § 5-6-48(e) preserves defendant's right to proceed with the issues raised in the cross-appeal even though the plaintiffs have voluntarily withdrawn the issues they raised on appeal. The holding in Jones does not apply to this case and defendant's cross-appeal should not be dismissed.
2. Only the third of the three orders denying the opening of default is at issue in defendant's enumeration of error. We reject plaintiffs' argument that defendant's renewed motion to open default was improper pursuant to this court's holding in Sears v. Citizens Exchange Bank of Pearson, 166 Ga.App. 840, 305 S.E.2d 609 (1983). In that case we recognized that a party may move for reconsideration of an order denying opening of default but that the motion should be brought before the same judge who ruled on the initial motion and the party should not be allowed to "judge shop" in an effort to find a judge who will arrive at a different discretionary ruling than the first. However, the fact that a different judge was petitioned after the initial ruling against defendant was, in this case, not due to judge shopping but to the fact that the first judge recused herself from further involvement with the case. Thus, the renewed motion was not improperly filed in this case.
Defendant argues that the second trial court judge, in ruling on the second and third motions to open default, relied upon an erroneous interpretation of the first judge's reason for denying the motion, erroneously assumed he was bound by the first judge's ruling as the law of the case and failed to exercise his own discretion in ruling on the third motion at issue in this appeal. It matters not what the reasons were for the denial of the first motion because, in our opinion, the defendant never set forth sufficient facts to establish any ground...
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