Georgia Farm Bldgs., Inc. v. Willard
| Decision Date | 01 March 1984 |
| Docket Number | Nos. 67775,67776,67777,s. 67775 |
| Citation | 317 S.E.2d 229,170 Ga.App. 327 |
| Parties | GEORGIA FARM BUILDINGS, INC. v. WILLARD et al. (three cases). |
| Court | Georgia Court of Appeals |
Herbert S. Waldman, Atlanta, for appellant.
John L. Green, Atlanta, for appellees.
This appeal is the latest in a long series of attempts by appellant Georgia Farm Buildings, Inc., to overturn a default judgment entered against it in a suit to recover for damage allegedly caused by the runoff of mud, silt, trash and debris from land on which the appellant and several other defendants were engaged in construction activities.
The suit was filed by the appellees on August 19, 1980. On August 26, 1980, service was effected on Jim Beck, described in the return of service as being the appellant's general manager. By affidavit, the appellant's president, Bobby Dumas, admitted having learned of the service of the complaint and summons on that date and averred that he immediately caused the documents to be forwarded to the company's insurance agency pursuant to a phone conversation with the agency's general manager. The president of the insurance agency admitted that although the agency received the documents on September 9, 1980, they were not forwarded to the appellant's liability insurer until April 13, 1981. The case against the appellant consequently went into default; and on December 1, 1980, without notice to the appellant, the issue of damages was tried before a jury. Based on the jury's verdict, a judgment in the amount of $131,000 was entered against the appellant on this same date. As to the remaining co-defendants, the case remains pending in the trial court.
The appellant learned of the existence of the default judgment on April 13, 1981. On May 11, 1981, it filed a motion to vacate and set aside the judgment on the ground that the person receiving service on its behalf, Jim Beck, was a mere employee of the company rather than its general manager and as such was without authority to accept service. This motion was denied on July 24, 1981. On December 1, 1981, the appellant moved to open the default pursuant to OCGA § 9-11-55(b), contending that its failure to file a timely answer was due to excusable neglect. That motion was denied on January 18, 1982. At some point during this period, the appellant also sought relief from the judgment by complaint in equity. However, the trial court dismissed this action on grounds of res judicata; and the dismissal was upheld by this court in Ga. Farm Bldgs. v. Willard, 165 Ga.App. 325, 299 S.E.2d 181 (1983). The controversy again appeared before this court in Ga. Farm Bldgs., Inc. v. Willard, 169 Ga.App. 394, 313 S.E.2d 112 (1984), wherein we disallowed an attempt by the appellees to collect the judgment by garnishment on the ground that the judgment was not final at the time the garnishment proceeding was initiated.
On June 20, 1983, in response to a motion by the appellees, the court entered an order declaring the default judgment to be final pursuant to OCGA § 9-11-54(b). The appellant subsequently applied to this court for leave to take an interlocutory appeal from that order; and on July 13, 1983, this court dismissed the application, ruling that such permission was not necessary because the judgment, having been declared final, was thereby rendered directly appealable as a matter of right. In the meantime, on June 24, 1983, the appellant had filed a timely notice of appeal from the order. Not to leave any stone unturned, the appellant also filed another notice of appeal on July 18, 1983, from both the order of June 20th and the default judgment itself.
Subsequent to the entry of the order of June 20th, the appellees moved for and were granted an order requiring the appellant to post a supersedeas bond pending appeal. The appellant did not comply with that order; and on July 13, 1983, the appellees filed notices to take the depositions of three of the appellant's officers for use in aid of execution. Simultaneously, the appellees filed a notice to produce, directing these same officers to make available at the time of taking of their depositions certain corporate records in their custody, control, or possession. The officers did not comply with this notice; and on August 24, 1983, the trial court granted a motion by the appellees for an order requiring the appellant to produce the designated documents. On August 31, 1983, the appellant filed a third notice of appeal from this order. Held:
1. The second notice of appeal, filed on July 18, 1983, is redundant insofar as it seeks to appeal the order of June 20, 1983, declaring the default judgment of December 1, 1980, to be final, and is untimely insofar as it seeks to appeal the default judgment itself. Appeal No. 67777 is accordingly dismissed.
2. We reject the appellees' contention that the dismissal of the complaint in equity constitutes a prior adjudication of any issue relating either to the sufficiency of service of process or to the court's denial of the motion to open the default. That dismissal was itself based on the doctrine of res judicata and did not purport to decide whether service was proper or whether there was a legal excuse for the appellant's failure to file a timely answer. Accordingly, the present appeal presents the first opportunity the appellant has had to obtain appellate consideration of these issues.
3. The trial court did not err in denying the appellant's motion to set the judgment aside on grounds of insufficiency of service of process. The return of service was regular on its face, and the burden was consequently on the appellant to establish facts controverting it. See generally Williams v. Mells, 138 Ga.App. 60, 225 S.E.2d 501 (1976). Although the appellant contends vigorously that Jim Beck, the recipient of service, was a "mere employee" without authority to accept service for the corporation, there was ample evidence to the contrary. Mr. Allen Freedman, the secretary of the corporation and the holder of 50 percent of its outstanding shares, testified on deposition that Beck was responsible for supervising employees and subcontractors on the construction site, as well as for taking care of complaints, determining the kind and amount of materials to be used on the job, and inspecting "loads" as they were delivered. Also, it is undisputed that Beck held himself out as the company's general manager and that he did so with the company's approval. The trial court was authorized to conclude from this evidence that Beck was legally authorized to accept service on the company's behalf. Accord Northwestern Nat. Ins. Co. v. Kennesaw Transp., 168 Ga.App. 701, 309 S.E.2d 917 (1983). See also Scott v. Atlanta Dairies Cooperative, 239 Ga. 721(2), 724, 238 S.E.2d 340 (1977); Adams v. Upjohn Co., 142 Ga.App. 264, 235 S.E.2d 584 (1977).
4. The trial court did not abuse its discretion in denying the appellant's motion to open the default based on excusable neglect in failing to file a timely answer. The motion was filed pursuant to OCGA § 9-11-55(b), which provides, in pertinent part, as follows: "At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court." The term "excusable neglect," as used in this code section, refers to a "reasonable excuse" for failing to answer, as distinguished from wilful disregard of the process of the court. Early Co. v. Bristol Steel, etc., Inc., 131 Ga.App. 775, 777, 206 S.E.2d 612 (1974).
The facts of this case do not establish as a matter of law the existence of a reasonable excuse for failing to file a timely answer. In an affidavit executed in support of the motion to open the default, the appellant's president asserted that on the day the complaint was served, he was advised by the manager of the appellant's insurance agency that if he would mail the complaint and summons to the agency, the agency would "take care of it." The president of the agency submitted an affidavit in which he admitted that the agency had received the complaint and summons on September 9, 1980, but had not forwarded the documents to the appellant's liability insurer until August 13, 1981. The appellant cites this court's decisions in American Erectors, Inc. v. Hanie, 157 Ga.App. 687, 278 S.E.2d 196 (1981); Cobb...
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...date; misunderstanding of the bar rules; and his preoccupation with a prior disciplinary proceeding"); Ga. Farm Bldgs., Inc. v. Willard , 170 Ga. App. 327, 330 (4), 317 S.E.2d 229 (1984) ("The term ‘excusable neglect,’ as used in this code section, refers to a ‘reasonable excuse’ for failin......
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