Majestic Homes, Inc. v. Sierra Development Corp., A93A2070
| Decision Date | 02 December 1993 |
| Docket Number | No. A93A2070,A93A2070 |
| Parties | MAJESTIC HOMES, INC. v. SIERRA DEVELOPMENT CORPORATION. |
| Court | Georgia Court of Appeals |
Don C. Huprich, Marietta, for appellant.
Flynn, Gottlieb & Kachmarsky, Edward D. Flynn III, Atlanta, for appellee.
On or about June 14, 1989, plaintiff Majestic Homes, Inc. and defendant Sierra Development Corporation entered into an assignment agreement. Pursuant to that agreement a lot contract between Majestic and a third party was to be assigned to Sierra. That agreement also provided for $25,000 to be held in escrow. The assignment was not completed, allegedly due to the default of Sierra.
On November 17, 1989, the escrow agent under the assignment agreement filed an interpleader action, naming the parties in this action as defendants and seeking to determine which of the parties should receive the escrow funds ("the prior action"). Both Majestic and Sierra answered and filed a cross-claim against the other defendant. In the cross-claim filed by Majestic, it sought only a determination that it was entitled to the escrow funds rather than Sierra. Sierra filed a similar cross-claim against Majestic and both parties moved for summary judgment. Although in its brief in support of its motion for summary judgment Majestic argued that it was entitled to additional funds from Sierra under the terms of the assignment agreement, the only relief it sought in both its cross-claim and motion for summary judgment was the escrow funds. The trial court granted Majestic's motion for summary judgment and awarded the escrow funds to it. Thereafter, the escrow agent in that action filed a dismissal with prejudice and the defendants both filed dismissals of their cross-claims without prejudice. 1
On December 19, 1991, Majestic filed suit against Sierra seeking additional funds it claims it is entitled to receive under the terms of the assignment agreement. The incorporators of Sierra filed a timely response to the complaint styled a "Special Appearance and Answer," in which they answered, set forth defenses and stated that based on their knowledge, information and belief, Sierra was now a defunct corporation. After learning Sierra had not been dissolved by the Secretary of State, Sierra on March 13, 1992 filed a document styled "First Amendment to Answer" in which it answered and asserted the same defenses previously set forth by the incorporators in the Special Appearance and Answer. Sierra then moved for summary judgment. Thereafter, but on the same day, Majestic moved for entry of default against Sierra and Sierra moved to open default. The trial court granted both Sierra's motion to open default and for summary judgment. Majestic appeals.
1. Majestic argues the trial court erred in denying its motion for entry of default and granting defendant's motion to open default. (Citations and punctuation omitted.) Rogers v. Coronet Ins. Co., 206 Ga.App. 46, 48(2), 424 S.E.2d 338 (1992). The sole function of an appellate court reviewing a trial court's grant of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case. In this case, a timely answer was filed by the incorporators of Sierra explaining why Sierra was not answering as a party and setting forth an answer to all allegations of the complaint and the same defenses later asserted by Sierra itself. In its motion to open default, Sierra complied with all the conditions set forth in OCGA § 9-11-55(b). Under the circumstances of this case, the trial court did not err in determining that this was a proper case for the default to be opened.
2. We reject Majestic's argument that the trial court erred in granting summary judgment to Sierra because its motion for summary judgment was filed while Sierra was in default. Afte...
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