Herring v. Harvey, A09A1490.

Citation685 S.E.2d 460,300 Ga. App. 560
Decision Date21 October 2009
Docket NumberNo. A09A1490.,A09A1490.
PartiesHERRING v. HARVEY et al.
CourtUnited States Court of Appeals (Georgia)

PHIPPS, Judge.

Keisha Herring was involved in an altercation with Terrence Muhammed, who was providing security services at a promotional event involving professional entertainer Steve Harvey. She brought suit against Harvey and NUOPP, Inc., a corporation associated with Harvey, for Muhammed's allegedly tortious acts. Harvey and NUOPP filed an untimely answer. Herring appeals the court's grant of Harvey's and NUOPP's motion to open default and its grant of summary judgment to Harvey and NUOPP on her claims against them. For reasons set forth below, we affirm.

1. Herring served her complaint on Harvey and NUOPP on June 16, 2006. On June 19, 2006, out-of-state counsel for Harvey and NUOPP moved to appear before the trial court pro hac vice. The court granted this motion on August 16, 2006, and Harvey and NUOPP filed their answer to Herring's complaint the following day.

A case is automatically in default if an answer has not been filed within 30 days of service, unless the time for filing has been extended as provided by law.1 But, under OCGA § 9-11-55(b),

[a]t 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. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.2

"In keeping with the policy of deciding cases on their merits, this provision should be liberally applied."3 We review for abuse of discretion a court's decision to open a default under this provision.4

Local counsel for Harvey and NUOPP, who first entered the case in April 2008, submitted an affidavit in support of the motion to open default. In it, he attested to out-of-state counsel's effort to obtain pro hac vice admission in the case and the filing of the answer immediately after obtaining such admission. Local counsel further averred that, shortly after answering, Harvey filed discovery requests and the parties "continued litigation in a normal manner." Finally, local counsel averred that Harvey and NUOPP had meritorious defenses to Herring's claims (specifically referencing therein arguments made in their brief in support of the motion to open default), and he offered to plead instanter and to proceed to trial.

Counsel's affidavit met the four statutory conditions for opening a default: making a showing under oath;5 offering to plead instanter; announcing readiness to proceed to trial; and setting up a meritorious defense, i.e., "showing that if relief from default is granted, the outcome of the suit may be different from the result if the default stands."6 And although the circumstances here did not show a "providential cause" for the untimely answer,7 as Harvey and NUOPP contend, the court nevertheless was authorized to open the default because the circumstances described in the affidavit presented a "proper case."

[A]lthough the "proper case" ground is the broadest of the three set out in OCGA § 9-11-55(b), it is not so broad as to authorize the opening of a default for any reason whatsoever. Its purpose is to permit the reaching out in every conceivable case where injustice might result if the default were not opened. Whatever that injustice might be, it may be avoided and the default opened under the "proper case" analysis only where a reasonable explanation for the failure to timely answer exists.8

Harvey and NUOPP provided a reasonable explanation for their failure to file a timely answer, the need for their out-of-state attorney to be granted permission to appear in the case. They acted promptly after being served with the complaint to have their counsel admitted pro hac vice, and they filed their answer immediately after that admission was obtained.9 There is no indication that the default delayed the litigation or resulted in prejudice to Herring. Under these circumstances, we cannot say the trial court abused its discretion in opening the default.10

2. In a separate claim of error, Herring contends that the trial court should have entered default judgment against Harvey and NUOPP. In light of our determination that the court was authorized to open the default,11 we find no merit in this claim of error.

3. In her complaint, Herring alleged that Harvey and NUOPP were liable for Muhammed's tortious acts under the principle of respondeat superior, because Muhammed was either their employee or agent when the acts occurred. She contends that the trial court erred in granting summary judgment to Harvey and NUOPP on these claims. "On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."12

The evidence showed that Herring was a friend of Harvey and had known him for several years. In June 2004, Herring was shopping at a mall department store. Harvey was participating in the promotional event at the mall and was on a podium between 70 and 100 feet away from Herring. Herring saw several people she identified as Harvey's "security and personnel." One of the people providing security was Muhammed, whom Herring had known through Harvey for two years.

Muhammed approached Herring from behind and called her by name. When she responded, he grabbed her arm tightly, yelled with obscenities at her and threatened her. Holding her by the arm and leaning his weight against her shoulder, Muhammed forced Herring to walk with him. Herring believed Muhammed had a gun, and she was afraid. She yanked her arm away and began to scream and move toward other people. Muhammed followed her. At this point, another security guard whom Herring knew through Harvey yelled for Muhammed to get away from Herring. Muhammed "quickly [went] the other direction." Subsequently, department store personnel intervened and Herring sought help from a police officer at the mall. In her complaint, Herring alleged that she experienced mental and physical pain and suffering as the result of Muhammed's acts.

(a) Summary judgment was appropriate as to the claim that NUOPP was liable for tortious acts committed by Muhammed. "[T]o impose liability under respondeat superior, some relationship must exist between the principal and agent or employer and employee."13 But the record on appeal contains no evidence that NUOPP was Muhammed's employer or that Muhammed was NUOPP's agent. Muhammed testified that he worked for another entity (not a party to this action) and that he was providing security services "to Steve Harvey" at the time of the incident. Herring testified that she believed Muhammed worked for Harvey. Neither witness discussed NUOPP or its relationship, if any, with Muhammed.14

(b) Summary judgment likewise was appropriate as to the claims against Harvey.

(i) Herring contends that Harvey was liable for Muhammed's tortious acts as his employer. Under OCGA § 51-2-2, "Every person shall be liable for torts committed by ... his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily."15 However,

[t]he employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer. In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract.16

"There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way."17

In his affidavit, Muhammed stated that he was employed by a company not involved in this action. He also averred that he was free to use his professional judgment in providing security services, defined as "patrol[ing] and observ[ing] the crowd," at the promotional event. This testimony indicated that Harvey did not retain a right to supervise the manner in which Muhammed provided the security services, which is an essential element of Herring's claim.18 Thus, to survive summary judgment, Herring had the burden of identifying specific evidence to support her claim that Harvey controlled the manner and method of Muhammed's performance.19 Herring's reliance upon the allegations in her complaint, in light of Harvey's default, did not satisfy this burden; because the default was properly opened, she could not rest on her pleadings to avoid summary judgment in the face of the evidence presented by Harvey.20 And we have not found in our de novo review of the record any specific evidence that Harvey controlled the manner and method of Muhammed's performance. Herring's testimony that the various security people at the event were "his [Harvey's] security and personnel," and her affirmative response when asked whether she knew Muhammed to be "Harvey's bodyguard or some kind of security personnel"21 did not address the nature and degree of control Harvey was able to exercise...

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4 cases
  • Strader v. Palladian Enters., LLC, A11A1020.
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    • United States Court of Appeals (Georgia)
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    ...543, 543–45(1), 708 S.E.2d 17 (2011); NorthPoint Group Holdings, LLC, 300 Ga.App. at 493(1)(a), 685 S.E.2d 436; Herring v. Harvey, 300 Ga.App. 560, 560–62(1), 685 S.E.2d 460 (2009); Henderson, 260 Ga.App. at 680–81(1), 580 S.E.2d 542; Tauber v. Cmty. Ctrs. Two, LLC, 235 Ga.App. 705, 706(3),......
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    ...App. 287 (3), 761 S.E.2d 833 (2014) ; Sierra-Corral Homes v. Pourreza , 308 Ga. App. 543 (1), 708 S.E.2d 17 (2011) ; Herring v. Harvey , 300 Ga. App. 560 (1), 685 S.E.2d 460 (2009) ; NorthPoint Group Holdings v. Morris , 300 Ga. App. 491 (1), 685 S.E.2d 436 (2009) ; Vibratech, Inc. v. Frost......
  • Bowen v. Savoy
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    • Supreme Court of Georgia
    • February 28, 2020
    ...287 (3), 761 S.E.2d 833 (2014) ; Sierra-Corral Homes, LLC v. Pourreza , 308 Ga. App. 543 (1), 708 S.E.2d 17 (2011) ; Herring v. Harvey , 300 Ga. App. 560 (1), 685 S.E.2d 460 (2009) ; NorthPoint Group Holdings, LLC v. Morris , 300 Ga. App. 491 (1), 685 S.E.2d 436 (2009) ; Vibratech, Inc. v. ......
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    • United States Court of Appeals (Georgia)
    • October 21, 2009

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