Florida East Coast Properties, Inc. v. Davis, 50007
Decision Date | 12 February 1975 |
Docket Number | No. 50007,No. 2,50007,2 |
Citation | 133 Ga.App. 932,213 S.E.2d 79 |
Parties | FLORIDA EAST COAST PROPERTIES, INC. v. Scott DAVIS |
Court | Georgia Court of Appeals |
Schwall & Heuett, Stanley M. Lefco, Atlanta, for appellant.
Tarleton, Zion & Meiere, John J. Tarleton, Mark J. Siskin, Decatur, for appellee.
Syllabus Opinion by the Court
Plaintiff via immediate review certificate appeals from the grant of defendant's motion to open default.
The facts giving rise to this appeal are as follows: Plaintiff filed suit against defendant seeking actual and punitive damages and attorney fees for defendant's alleged tortious conduct. Defendant failed to answer the complaint within the time required by law and the case went into default. At the trial limited to the question of damages, a verdict was rendered by the jury awarding plaintiff $2,127.99 general damages, $10,000 punitive damages and $2,500 attorney fees.
Before judgment was entered upon the verdict, defendant moved to open the default. Defendant asserted that 'plaintiff and defendant were engaged in settlement negotiations as to all issues between the parties subsequent to the filing of the suit and prior to the same becoming in default and that he (defendant) was assured by plaintiff that such case would be dismissed prior to the date of default without necessity of a formal appearance in such case by the defendant.' (R. 13)
At the outset of the motion hearing the trial judge informed plaintiff's counsel of his intention to set aside the jury's verdict on his own motion because he deemed it to be excessive; and that he would hear evidence on defendant's motion to open the default. He expressed his views thusly: (T. 3)
Following presentation of evidence on defendant's motion, the trial court (R. 21) This appeal followed.
1. Foster Co. v. Livingston, 127 Ga.App. 317, 318, 193 S.E.2d 626, 627. Accord, Axelroad v. Preston, 232 Ga. 836, 209 S.E.2d 178; Lanier v. Foster, 133 Ga.App. 149, 210 S.E.2d 326; Avant v. Patrick, 133 Ga.App. 708, 213 S.E.2d 14.
The foregoing principle is appropriate in the case at bar. At the hearing defendant testified that after he received the complaint, he resumed negotiations which he had previously commenced with plaintiff and plaintiff's counsel; that as a result of these negotiations and correspondence received from plaintiff's attorney, he believed the suit would be settled before trial; and that he did not, consequently, obtain counsel until after the case was in default. Having examined the evidence presented below, we cannot say that the grant of defendant's motion constituted an abuse of the trial court's broad discretion to determine that a 'proper case' had been made to open the default. See Broadaway v. Thompson, 127 Ga.App. 600, 194 S.E.2d 342.
2. It cannot be said the trial court abused its discretion simply because the plaintiff's attorney took issue with defendant's testimony. 'Where the judgment rendered, permitting the opening of a default, is based on conflicting evidence, the discretion vested in the trial court will not be controlled unless manifestly abused.' Evans v. Dennis, 203 Ga. 232(1), 46 S.E.2d 122.
3. The trial court's discretion to open the default was not disminished by the rendition of the jury verdict. Section 55(b)...
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Houston v. Lowes of Savannah, Inc.
...for rehearing in Foster Co., supra, beginning at page 319, 193 S.E.2d 626 concerning Sanders, supra. See also Florida East Coast Properties v. Davis, 133 Ga.App. 932, 213 S.E.2d 79, where default was opened after judgment had been 2. There is yet another reason why we should affirm the tria......
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Johnson v. Durrence, 50974
...178; Lanier v. Foster, 133 Ga.App. 149, 210 S.E.2d 326; Avant v. Patrick, 133 Ga.App. 708, 213 S.E.2d 14.' Florida East Coast Properties v. Davis, 133 Ga.App. 932(1), 213 S.E.2d 79. The foregoing principle is appropriate in the case at bar, in which the evidence supported the trial judge's ......
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Muscogee Realty Development Corp. v. Jefferson Co.
...the trial court's statutory discretion was broader than it would have been for a post-judgment default. Florida East Coast Properties v. Davis, 133 Ga.App. 932, 213 S.E.2d 79 (1975); Haynes v. Smith, 99 Ga.App. 433, 108 S.E.2d 772 (1959). This is so particularly with respect to the third st......
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Central of Georgia R. Co. v. Hearn, 76519
...the filing of an inappropriate or inadequate motion for new trial by one of the parties. See Florida East Coast Properties v. Davis, 133 Ga.App. 932(4) (213 SE2d 79) (1975). Compare Darby v. Commercial Bank, 135 Ga.App. 462(1) (218 S.E.2d 252) (1975) (holding that, after the passage of 30 d......