Leader Nat. Ins. Co. v. Smith

• Decision Date: 03 December 1985
• Docket Number: Nos. 70258,70341,s. 70258
• Citation: 339 S.E.2d 321,177 Ga.App. 267
• Parties: LEADER NATIONAL INSURANCE COMPANY v. SMITH et al. KEMP & SON, INC. v. LEADER NATIONAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 321

339 S.E.2d 321

177 Ga.App. 267

LEADER NATIONAL INSURANCE COMPANY v. SMITH et al.

KEMP & SON, INC. v. LEADER NATIONAL INSURANCE COMPANY.

Nos. 70258, 70341.

Court of Appeals of Georgia.

Dec. 3, 1985.

Certiorari Denied Jan. 29, 1986.

Rehearing Denied Dec. 19, 1985.

Terry L. Readdick, John E. Bumgartner, Brunswick, for appellant (case no. 70258).

William H. Glover, Jr., Jack S. Hutto, George M. Rountree, Karen M. Krider, Brunswick, for appellees.

William H. Glover, Jr., Brunswick, for appellant (case no. 70341).

George M. Rountree, John E. Bumgartner, Terry L. Readdick, Brunswick, for appellees.

BEASLEY, Judge.

We begin our delving into this case with the concluding analysis of the trial court ringing as an admonition and warning in our ears. The court wrote in one of the orders appealed from: "This case is a total and absolute mess. The record is voluminous [8 volumes constituting 1721 pages] and confusing ... [this order is] paving the way for another five years of litigation." We will try to sort out the former and preclude the latter.

70258

This case is one of four lawsuits stemming from a 1977 accident in which Smith was killed when his truck collided with a tractor-trailer driven by Neal, an employee of Kemp & Son, Inc. (Kemp). Smith's mother and the administrator of Smith's estate filed separate wrongful death and negligence actions against Kemp and its employee (the driver Neal). Kemp's insurer, Leader, initially entered a defense on behalf of Neal's estate, Neal having died in the interim, but withdrew soon after and denied coverage. Another attorney represented Kemp. The cases were consolidated for trial and were tried without a jury in January 1980 against Neal's administrator and Kemp. No one, and no counsel, appeared for either of these two defendants. The trial court noted that it was aware Kemp's insurer had withdrawn its counsel due to its denial of coverage. The court proceeded, having concluded that all parties involved had sufficient time to protect their legal interests as the cases had been pending since December 1977. Judgments totalling over $667,000 were entered for Smith's mother and the administrator. No appeals were taken.

Kemp, the administrator, and Smith's mother then filed the present action against Leader to recover the judgments and costs of defending the tort actions, contending there was coverage under Kemp's policy.

Prior to the entry of judgments in the tort actions, and so prior to the instant suits, Leader had petitioned for declaratory judgment alleging that the tractor-trailer involved was not covered under Kemp's insurance policy because it was purchased individually by the company's president. This court affirmed the denial of summary judgment to Leader, determining that a conflict remained for jury determination of the insurance coverage issue. Leader Nat. Ins. Co. v. Smith, 162 Ga.App. 612, 292 S.E.2d 456 (1982). Leader then voluntarily dismissed the declaratory judgment action, apparently because the same issue was pending in the present action, and filed a motion for summary judgment in it. The motion was denied, and we granted Leader's application for review. This prompted a cross-appeal by Kemp against Leader and the insurance agent as the trial court had also dismissed certain of Kemp's claims.

Insurer asserts that the trial court erred in refusing to grant it summary judgment because the tort judgments upon which the present suit is based are invalid due to the failure of all parties to waive jury trial.

In response to insurer's argument for summary judgment based on lack of waiver of jury trial, the Smiths on April 4, 1984 obtained a 1984 obtained a nunc pro tunc order to correct the judgments in the negligence actions which had reflected that Neal was a party defendant. The order stated that Neal had been voluntarily dismissed as a defendant at trial upon announcement by the Smiths, inasmuch as no waiver of a jury trial "could be obtained [from Neal] because of his death and because of the type of administration of his estate, i.e. the County Administrator, in a no-asset administration case." The order also stated that Kemp had waived a jury trial.

A few weeks later the court, at the instance of Leader and without notice to the Smiths, vacated its nunc pro tunc order of April 4, explaining it had entered the April 4 order relying upon the recollection of plaintiffs' counsel as to what occurred at the tort trials, but that upon further review of the record it appeared to be incorrect. The court cited the following language found in the tort judgments as persuasive: "The Court is aware, from the examination of the records and by statement of counsel, of the following facts, to wit: ... 2. That the suit had been amended, dismissing all defendants, with the exception of C.L. Higgison, as Administrator of the Estate of Boisey Neal, (who was killed some three weeks after this accident in another accident), and Kemp & Son, Inc. That the attorney for Kemp & Son, Inc., had withdrawn and there was no appearance of any other counsel in this case for Boisey Neal and/or Kemp & Son, Inc. 3. That the Court was informed that there was a controversy between the alleged insurance carrier for Kemp & Son, Inc., and Boisey Neal as their agent as to coverage and the record shows that counsel for the said insurance company had withdrawn from the case and denied and/or rejected any participation in said case." (Emphasis supplied.)

Kemp had raised no objection to the original judgments and did not object to the nunc pro tunc order. Upon a motion by the Smiths to vacate the April 27 order, a hearing was held on May 23. The judge, upon motion, disqualified himself from further proceedings without ruling on the motion to vacate. It then came before another judge who, on October 16, upon hearing arguments of counsel, the testimony of an attorney of a former party defendant who was dismissed from the actions, and a review of the record, vacated the April 27 order as invalid and reinstated the April 4 nunc pro tunc order. The reasons given were lack of notice to all parties with respect to the later order and secondly, "[i]t was the intent of plaintiffs to dismiss [the estate of] Boisey Neal as a defendant [in the tort actions] and not proceed against him to Judgment." This left Kemp as the sole defendant in the actions.

Leader contends that the administrator of Neal's estate was never dismissed as a party defendant, that the April 27 order vacating the nunc pro tunc order was proper and should not have been vacated, and that the nunc pro tunc order of April 4 should not have been reinstated. It follows, says Leader, that because Neal's administrator was not dismissed as a party defendant, the tort judgments are invalid because Neal's administrator did not waive his right to jury trial.

1. May Leader attack the underlying tort judgments in this proceeding? "When a court purports to render a judgment beyond its jurisdiction, the judgment is void. [Cit.] ... [A] judgment rendered by the court when a jury verdict is required by statute is void ... [Cit.]." McCarthy v. Holloway, 245 Ga. 710, 711, 267 S.E.2d 4 (1980), citing Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978) and Greene v. Greene, 76 Ga.App. 225, 45 S.E.2d 713 (1947). "A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by direct proceeding brought for that purpose" by motion for new trial, motion to set aside, or complaint in equity. OCGA § 9-11-60 (a) and (b). Generally, "judgments which are void for causes not appearing on their face may only be attacked directly and only by parties to the judgment or their privies. [Cits.] However, a judgment void on its face may be attacked in any court by any person when it becomes material to the interests of the parties to consider it. [Cits.] An attack upon a void judgment may be made directly in equity or collaterally. [Cit.]" Wasden v. Rusco Indus., 233 Ga. 439, 444-45 (2), 211 S.E.2d 733 (1975).

Leader attacks the judgments collaterally, specifically challenging two aspects of the October 16 modification: first, the conclusion that Neal's administrator was dismissed from the suit, thereby reinstating the April 4 nunc pro tunc order, and second, the conclusion that vacating the April 4 order was improper due to the lack of notice to all parties. It is not apparent from the face of the judgments as modified, however, that the judgments were void. Therefore Leader may not complain. Wasden, supra.

2. " ' Our Code provides: "Every court has power--To amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth.' " [OCGA § 15-1-3(6) (Code Ann. § 24-104).] "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." [OCGA § 9-11-60(g) (Code Ann. § 81A-160).] ... [T]he language "amend its own records" includes " 'amending' the record by reducing to writing an order which had previously existed only as an oral statement and was therefore not properly a part of the record at all (...)" Israel v. Joe Redwine Ins. Agency, 120 Ga.App. 14, 16, 169 S.E.2d 347 (1969). Savannah Iron etc. Corp. v. Mitchell, 168 Ga.App. 252, 308 S.E.2d 569 (1983).

Clerical mistakes and errors may be modified under OCGA § 9-11-60(g) (Code Ann. § 81A-160) "only 'where the clerical error or omission is obvious on the face of the record.' However, ... [there is] an exception to this general principle where there has been a hearing on a motion to correct the judgment, and the evidence compels the conclusion that the omission was in fact a clerical error." Cagle v. Dixon, 234 Ga. 698,...