Hazlett & Hancock Const. Co. v. Virgil Womack Const. Co., 72593

• Decision Date: 05 November 1986
• Docket Number: No. 72593,72593
• Citation: 351 S.E.2d 218,181 Ga.App. 25
• Court: Georgia Court of Appeals
• Parties: HAZLETT & HANCOCK CONSTRUCTION COMPANY v. VIRGIL WOMACK CONSTRUCTION COMPANY.

Page 218

351 S.E.2d 218

181 Ga.App. 25

HAZLETT & HANCOCK CONSTRUCTION COMPANY v. VIRGIL WOMACK CONSTRUCTION COMPANY.

No. 72593.

Court of Appeals of Georgia.

Nov. 5, 1986.

Rehearing Denied Nov. 21, 1986.

Certiorari Denied Jan. 15, 1987.

Steve J. Davis, Penn Payne, Atlanta, for appellant.

J. Michael Treadaway, Marietta, for appellee.

BEASLEY, Judge.

General contractor Hazlett appealed from a default judgment in a suit against it and a subcontractor brought by Womack, the materials supplier for the project.

Count one of the suit alleged that $17,333.40 was due and unpaid under a contract; count two claimed the same sum on principles of quantum meruit and restitution based on defendants' unjust enrichment; count three sought damages for defendants' stubborn litigiousness and bad faith. Hazlett failed to respond within thirty days of service of process, OCGA § 9-11-12(a), or to open the default by right within the fifteen-day grace period, OCGA § 9-11-55(a). It moved to open the default under OCGA § 9-11-55(b), claiming excusable neglect. The trial court denied the motion, finding that the defendant had failed to show providential cause, excusable neglect, or a proper case for opening the default, and it entered judgment on count one for (liquidated) damages of $17,333.40 plus costs and interest.

Hazlett then moved to set aside the judgment on several bases. One was that the judgment was entered ex parte and without a determination that there was no just reason for delay, citing OCGA § 9-11-54(b). Another was that judgment against it should not be entered until the entire case was adjudicated. The final basis was that plaintiff had to prove its damages before it would be entitled to judgment. The court set aside the judgment for its own failure to expressly determine that delay was not warranted. Plaintiff then moved for, and the court entered, judgment for $17,333.40 plus interest and costs.

Hazlett filed another motion to set aside judgment, this time on the basis that it did not have notice of the court's entry of judgment and was therefore unable to file a timely notice of appeal. The court found lack of notice, again set judgment aside, and thereafter once more entered judgment for plaintiff on count one in the same sum, which it considered liquidated, plus interest and costs. The appeal arises from this last judgment.

1. Appellant argues that the trial court erred in entering judgment when the court had "previously granted its motion to set aside." Its theory is that the motion raised a number of grounds besides the OCGA § 9-11-54(b) one, which the court expressly based its order on, and therefore that all of its arguments, specifically its claim that judgment must await the outcome of the trial as to the other defendant, "must be deemed to have been accepted by the trial court and consented to by the plaintiff when the plaintiff did not contest entry of the court's order."

Appellant does not attempt to support this fallacious argument with any authority whatsoever. Therefore, it is deemed abandoned. Court of Appeals Rule 15(c)(2); Melton v. Gilleland & Sons, 176 Ga.App. 390(1), 336 S.E.2d 315 (1985). We note, however, that we know of no support for the novel proposition that when the trial court grants a motion and respondent does not further contest the adverse ruling, the court is presumed to have implicitly accepted all of movant's grounds and respondent presumed to have acquiesced and is thereby estopped from further contesting them.

2. Appellant also contests the judgment without proof of damages first having been made by plaintiff. It argues that the damages remain unliquidated because the alleged contract, which would manifest the sum allegedly owed, was not attached to the complaint and only a conclusory allegation was made that a certain sum was due.

Count one alleged that plaintiff furnished materials and labor for the building, repair and improvement of certain apartment structures, that the two defendants contracted with plaintiff for such, that plaintiff fully performed and furnished materials and labor in the amount of $17,333.40, and that the defendants refused to pay it.

The procedural law provides that if a "case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, ... as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages...." OCGA § 9-11-55(a).

From what plaintiff has presented, and considering the default, can we say that the amount is liquidated, as the trial court had to conclude in order to enter judgment?

Perhaps the most concise statement on the subject is found in Anderson v. State of Ga., 2 Ga. 370, 374(4) (1847): "We understand by liquidation, an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing: an open account is the reverse of this." [Emphasis in original] For general discussion of the distinction between liquidated and unliquidated damages, see Cobb & Eldridge, Ga. Law of Damages (2nd ed.), § 5-1, and 8 Encyc. of Ga. Law, "Damages" § 9.

One type of liquidated claim would be a suit "upon an account for a stated...