Leeper v. Safebuilt Ga., Inc., A19A1175

• Decision Date: 13 November 2019
• Docket Number: A19A1175
• Citation: 353 Ga.App. 121,836 S.E.2d 625
• Parties: LEEPER et al. v. SAFEBUILT GEORGIA, INC.
• Court: Georgia Court of Appeals

353 Ga.App. 121

836 S.E.2d 625

LEEPER et al.

v.SAFEBUILT GEORGIA, INC.

A19A1175

Court of Appeals of Georgia.

November 13, 2019

Cory Casey Close, Duluth, Chad Kenneth Reed, for Appellant.

Cecily Joy McLeod, Chad Allan Shultz, Atlanta, Vernon Phillip Hill IV, for Appellee.

Doyle, Presiding Judge.

Jeffrey and Ashley Leeper filed suit in Fulton County Superior Court against Safebuilt Georgia, Inc., and other defendants, asserting various claims arising out of the construction of their home. The Leepers subsequently voluntarily dismissed the Fulton County action and refiled the case in Gwinnett County Superior Court. After filing an untimely answer, Safebuilt moved to extend the time to answer and/or to open default, and the trial court granted the motion on both grounds and certified its order for immediate review. The Leepers challenge the trial court’s order in this interlocutory appeal. For the reasons that follow, we affirm.

The record shows that in December 2017, the Leepers filed suit in Fulton County Superior Court against Safebuilt (as indemnitor for the City of Milton) and several other defendants, including their builder, asserting claims arising out of the construction of their Milton home. The Leepers alleged that Safebuilt, which provided inspection services throughout the construction process pursuant to an agreement with the City, breached the contracts between Safebuilt and the City by failing to identify various defects and code violations during its inspections.¹ They also alleged claims against "all [d]efendants" for negligent construction, breach of express warranties, breach of implied warranties, and deceptive trade practices. Later that same month, the Leepers voluntarily dismissed the Fulton County action without prejudice.²

On December 26, 2017, the Leepers refiled the case in Gwinnett County Superior Court; they served Safebuilt’s agent with a copy of the summons and verified complaint on December 28, 2017. Nevertheless, in February 2018, the Leepers and Safebuilt, through counsel, filed a stipulation in the Fulton County action extending the deadline for Safebuilt to file an answer. On February 13, 2018, Safebuilt filed an answer in Fulton County, and it responded to the Leepers’ discovery requests in that case the same month.

On May 18, 2018, upon learning that the Leepers had refiled their case in Gwinnett County, counsel for Safebuilt immediately asked counsel for the Leepers to stipulate in the Gwinnett case "to correct the record and get everything that had been filed in the Fulton County action by Safebuilt [filed] in the Gwinnett County [c]ase." The Leepers’ counsel refused to so stipulate, and instead, on May 21, 2018, moved for a default judgment against Safebuilt in the Gwinnett County case. The following day, Safebuilt filed an unverified answer, and on June 8, 2018, it filed an emergency motion to open default or to extend the time to answer. Safebuilt asserted that (a) it never received notice of the dismissal of the Fulton County action, (b) it first learned of the Gwinnett County action in May 2018,³ and (c) due to a misunderstanding and mistake on the part of both Safebuilt and the Leepers, all of Safebuilt’s prior filings had been submitted in the Fulton County action.

The trial court granted Safebuilt’s motion to open default pursuant to OCGA § 9-11-55 (b) on the ground of excusable neglect and, alternatively, also granted the motion for an extension of time to file its answer pursuant to OCGA § 9-11-6 (b) for the same reason. The court observed in the order that Safebuilt had paid costs and pleaded a meritorious defense under oath, and the Leepers would not be prejudiced by opening the default and lacked "clean hands" given their superior knowledge of the dismissal of the Fulton County action. The trial court subsequently certified its order for immediate review, and this appeal followed.

1. Motion to open default . The Leepers argue that the trial court erred by granting Safebuilt’s motion to open default. We disagree.

Unless otherwise provided by statute, a defendant in a civil case must file an answer within 30 days of service of the summons and complaint upon the defendant.⁴ If an answer is not filed within the time required by the Civil Practice Act, "the case shall automatically become in default unless the time for filing the answer has been extended as provided by law."⁵

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. This [C]ourt has previously held that the "showing" required by this Code section to be made "under oath" includes the showing of a "meritorious defense." Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.⁶

"The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits [because] default judgment is not favored in law."⁷

(a) Statutory conditions precedent. In support of its motion to open default, Safebuilt filed affidavits of its attorney averring that Safebuilt offered to plead instanter and was ready to proceed to trial without delay, subject to its right to file a motion to dismiss. The Leepers do not challenge the trial court’s ruling that Safebuilt met those three conditions precedent to opening default. Instead, they argue on appeal that Safebuilt failed to set up a meritorious defense.

The requirement that a defendant set up a meritorious defense "does not require a defendant to show that it will completely defeat plaintiff[s’] claim; rather, the defendant must demonstrate that if relief from default is granted, the outcome of the suit may be different from the result if the default stands."⁸ Here, Safebuilt’s attorney averred under oath in two separate but nearly identical affidavits that

Safebuilt’s meritorious defenses include but are not limited to the following:

a. [s]overeign immunity derived from its relationship and agency with the City of Milton; b. Safebuilt provided inspections properly; and

c. [m]any of the asserted negligent construction claims are inapplicable to Safebuilt due to the nature of Safebuilt’s business and services and lack of privity with [the Leepers].

Safebuilt’s argument that it was entitled to sovereign immunity is without merit.⁹ And the attorney’s averment that "Safebuilt provided inspections properly" is conclusory and insufficient to set up a meritorious defense.¹⁰ However, the attorney’s third argument — that the Leepers’ negligent construction claims fail — does set up a meritorious defense.

The affidavits do not explain the nature of the services Safebuilt provided to the Leepers, but the construction contract attached to the Leepers’ complaint is between the Leepers and defendant Pyramid Builders Group, and it makes no mention of Safebuilt. And the contract between the City of Milton and Safebuilt, which was attached as an exhibit to one of the affidavits, demonstrates that Safebuilt contracted with the City to provide inspection services. Although inartfully worded and lacking "great factual detail," the attorney’s affidavits, along with the contracts, were sufficient to support a determination by the trial court that Safebuilt demonstrated a meritorious defense as to the Leepers’ negligent construction claims for purposes of opening default pursuant to OCGA § 9-11-55 (b).¹¹

(b) The "excusable neglect" ground . The trial court found that Safebuilt’s failure to file a timely answer in the Gwinnett action constituted excusable neglect. We find no abuse of discretion in this ruling.

When reviewing the trial court’s ruling, we note that

the sole function we have as an appellate court reviewing a trial court’s grant of a motion to open default is to ascertain whether all of the conditions delineated in OCGA § 9-11-55 have been satisfied and, if so, whether the trial court abused its discretion based on the facts peculiar to each case. And because the public policy of this state strongly favors resolution of cases on their merits, the remedial provisions for opening a default are to be forgivingly applied. For this reason, a default should generally be set aside when the defendant acts with reasonable promptness and alleges a meritorious defense, so as to avoid a drastic sanction that should be invoked only in extreme situations. In sum, once the four preconditions have been satisfied by a defendant, the trial court is vested with broad discretion in determining whether to open a default on the [excusable neglect] ground, and we will not disturb a trial court’s decision on this matter absent an abuse of its discretion.¹²

Some of the factors to consider when determining whether opening default is appropriate include:

whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed. Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable.¹³

Here, Safebuilt’s attorney alleged that until May 2018, she was unaware that the Leepers had dismissed the Fulton County action in ...