Follmer v. Perry

• Decision Date: 06 November 1997
• Docket Number: No. A97A2123,A97A2123
• Citation: 493 S.E.2d 631,229 Ga.App. 257
• Parties: , 97 FCDR 4176 FOLLMER v. PERRY et al.
• Court: Georgia Court of Appeals

Page 631

493 S.E.2d 631

229 Ga.App. 257, 97 FCDR 4176

FOLLMER v. PERRY et al.

No. A97A2123.

Court of Appeals of Georgia.

Nov. 6, 1997.

Lane & Jarriel, Thomas F. Jarriel, Macon, for appellant.

Stone & Baxter, Stephen L. Dillard, Macon, for appellee.

BLACKBURN, Judge.

Fred C. Follmer appeals the trial court's entry of default judgment, contending that the default should have been opened pursuant to OCGA § 9-11-55(b). He also contends the court erred in failing to allow a jury trial on the issue of damages.

Charles R. Perry and Brigitte M. Perry were tenants of a condominium they allege was owned by Follmer and managed by Sheridan, Solomon & Kernaghan, Inc. (SS & K). On September 25, 1996, Charles Perry sued Follmer and SS & K, alleging that the Perrys' property was damaged in a fire at the condominium caused by the defendants' negligence. Brigitte Perry was later added as a party plaintiff upon the motion of SS & K. Follmer was served with the complaint on October 2, 1996.

Follmer failed to timely file an answer, and Perry moved for a default judgment on December 19, 1996. On April 22, 1997, Follmer filed a motion to open the default, claiming that the failure to file an answer was due to excusable neglect. The next day, he filed a demand for jury trial on the issue of damages. On May 1, 1997, the trial court entered default judgment against Follmer.

1. "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." (Punctuation omitted.) 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." (Punctuation omitted.) Id. at 262(2), 450 S.E.2d 307; Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401-402, 314 S.E.2d 199 (1984).

"The sole function of an appellate court reviewing a trial court's [denial] of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case." Majestic Homes v. Sierra Dev. Corp., 211 Ga.App. 223, 224(1), 438 S.E.2d 686 (1993). Follmer contends that the court erred in refusing to open his default, arguing that his failure to file an answer was caused by excusable neglect. The Perrys do not challenge the existence of the four conditions, but contend that Follmer has not demonstrated excusable neglect.

In his verified motion to open the default, Follmer contended that the condominium was owned by a partnership in which he was a partner. He claimed that, upon receipt of the complaint, he gave the complaint to one of the other partners to deliver to the partnership's local insurance agent, Joe Mullendore. He stated that the complaint was delivered to Mullendore within one week to ten days of service, and that he attempted to contact Mullendore on at least three occasions, but that Mullendore did not return his calls. He claimed that he did not become aware of the default until March 1997, when his wife informed him that she had been contacted by the Perrys' lawyer. Prior to that time, according to the motion, he believed the insurance carrier had hired an attorney and that the case was being handled appropriately.

Follmer contends that this case is controlled by a line of decisions in which we have found excusable neglect where a defendant delivered pleadings to his insurance carrier and believed the carrier was taking the necessary steps to defend the lawsuit. See Pinehurst Baptist Church, supra; Cobb County Fair Assn. v. Boyle, 143 Ga.App. 754, 240 S.E.2d 136 (1977); Sears, Roebuck & Co. v. Ramey, 170 Ga.App. 873, 318 S.E.2d 740 (1984); American Erectors v. Hanie, 157 Ga.App. 687, 278 S.E.2d 196 (1981); Powell v. Eskins, 193 Ga.App. 144, 387 S.E.2d 389 (1989). However, we have recognized that "[i]n cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case." Cobb County Fair Assn., supra at 756, 240 S.E.2d 136; Pinehurst Baptist Church, supra at 261(1), 450 S.E.2d 307; Sears, Roebuck, supra at 875, 318 S.E.2d 740.

The present case is distinguishable from the cases relied upon by Follmer. A primary rationale for such decisions was that "a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow." Cobb County Fair Assn., supra at 756, 240 S.E.2d 136; Pinehurst Baptist Church, supra at 262-263, 450 S.E.2d 307; Sears, Roebuck, supra at 875, 318 S.E.2d 740. Consequently, such decisions have focused on the defendant's diligence and the insurer's assurance that it is handling the case. See, e.g., Pinehurst Baptist Church, supra at 262, 450 S.E.2d 307 (defendant contacted insurance agent on five occasions, provided documents to agent, and was repeatedly assured that nothing else was required of defendant); Cobb County Fair Assn., supra at 754-756, 240 S.E.2d 136 (defendant led to believe co-defendant's insurance carrier was assuming defense of defendant).

In this case, however, there is no evidence of such diligence or assurances. Although Follmer had the complaint delivered to the partnership's insurance agent, he never spoke with the agent or received assurance that the insurer was proceeding with the defense. Furthermore, the complaint did not name the partnership as a defendant and alleged that the condominium was...