Mecca Constr., Inc. v. Maestro Invs., LLC

• Decision Date: 27 February 2013
• Docket Number: No. A12A2326.,A12A2326.
• Citation: 739 S.E.2d 51,320 Ga.App. 34
• Parties: MECCA CONSTRUCTION, INC. et al. v. MAESTRO INVESTMENTS, LLC et al.
• Court: Georgia Court of Appeals

320 Ga.App. 34

739 S.E.2d 51

MECCA CONSTRUCTION, INC. et al.

v.MAESTRO INVESTMENTS, LLC et al.

No. A12A2326.

Court of Appeals of Georgia.

Feb. 27, 2013.

James S. Altman, for Appellant.

Jason Ryan Doss, Marietta, for Appellee.

PHIPPS, Presiding Judge.

Maestro Investments, LLC and Michael Foster (collectively “ Maestro”) filed suit against Mecca Construction, Inc., Opportunity Investments/Developers, LLC, Khatra Mohamed, and Mikal Abdullah (collectively “Mecca”), alleging claims for, among other things, breach of contract and fraud. The trial court found that Mecca failed to timely answer the complaint and, after a trial on the issue of damages, entered a judgment of default and an award of damages and attorney fees against Mecca.

Mecca appeals, contending that (1) the trial court erred in denying its motion to extend the time to answer the complaint and in finding that it (Mecca) was in default; (2) the trial court erred in declining to open the default; (3) the trial court erred in not allowing it (Mecca) to contest the factual allegations of the complaint, which, Mecca asserts, were not well pled; (4) the trial court erred in granting judgment in favor of Foster when there was no evidence that Foster was a party to any contract or a participant in any transaction with Mecca; (5) there was no “well pled or proven” basis to hold Mohamed and Abdullah (officers of Opportunity Investments and Mecca Construction, respectively) personally liable; (6) a settlement agreement was unenforceable because there was no evidence the parties had reached an agreement; and (7) there was no evidentiary basis to award attorney fees. For the reasons that follow, we affirm.

“Since this appeal involves questions of law concerning the nature of damages in [Maestro's] complaint and the trial court's entry of default judgment for liquidated damages, this Court must review the record de novo and apply a plain legal error standard of review.” ¹ “When a question of law is at issue, ... we owe no deference to the trial court's ruling and apply the plain legal error standard of review.” ²

[320 Ga.App. 35]1. Mecca contends that the trial court erred in denying its motion for an extension of time to answer the complaint and in finding that it was in default. Mecca asserts that the trial court's determination of when its answer was due was erroneous, and that instead of making a determination of when the answer was due, the trial court should have ruled that the time for filing the answer would not begin until there was a “clear record of service as required by OCGA § 9–11–4(h).”

(a) Mecca contends that the trial court erred in denying its motion for an extension of time to answer the complaint. We disagree.

The record shows that Maestro filed suit against Mecca on April 5, 2011. In April and May 2011, service of the suit was attempted but was unsuccessful. On June 16, 2011, Maestro sent to Mecca, pursuant to OCGA § 9–11–4, four documents (one for each defendant) entitled “Notice of Lawsuit and Request for Waiver of Service of Summons” (hereinafter, “the notices”). On July 13, 2011, four documents (each executed by the defendants) entitled “Waiver of Service of Summons” (hereinafter, “the waivers”) were filed with the clerk of court. On August 25, 2011, Mecca Construction and Opportunity Investments, vowing to retain counsel to defend against the lawsuit, moved for an extension of time to answer the complaint. On September 15, 2011, Mecca, acting pro se, filed an answer to the complaint. On October 4, 2011, the trial court entered an order denying the request for an extension of time to answer the complaint.

Mecca asserts that (1) in the October 2011 order, the trial court erroneously determined that Mecca's answer to the complaint was due 30 days from the date on which the waivers were filed; and (2) the notices that were sent to Mecca correctly provided that Mecca's answer was due 60 days from when Maestro sent the notices to Mecca.

Under OCGA § 9–11–4(d)(3), to avoid costs, a plaintiff may notify a defendant of the commencement of the action and request that the defendant waive service of a summons. And OCGA § 9–11–4(d)(3)(F) pertinently provides that the notice and request shall “[a]llow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent.” OCGA § 9–11–4(d)(5) pertinently provides: “A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent....” ³ Here, Mecca timely returned the waivers. Thus, Mecca's answer was due within 60 days of June 16, 2011 (when the notices were sent), and not within 30 days of July 13, 2011 (when the waivers were filed), as the trial court had ruled.⁴ Notwithstanding, as Mecca filed its answer on September 15, 2011, it was outside either period of time for filing, which was August 15, 2011 or August 12, 2011, respectively.

OCGA § 9–11–6(b)(2) pertinently provides:

When by this chapter or by a notice given thereunder ... an act is required ... the court for cause shown may at any time in its discretion ... upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. ⁵

The motion for an extension was made after the time for filing an answer had expired.⁶ “It was therefore incumbent upon [Mecca Construction and Opportunity Investments] to show excusable neglect.” ⁷ “ ‘Excusable neglect’ means, among other things, ‘a reasonable excuse.’ The maxim that ‘ignorance of the law offers no legal excuse’ needs no citation.” ⁸

Despite a prior vow by Mecca Construction and Opportunity Investments to retain counsel to answer the complaint, these two defendants along with Mohamed and Abdullah, filed a joint, pro se answer to the complaint. On appeal, Mecca argues that it “f[ou]nd the provisions confusing” as to when its answer was due. But ignorance of the law offers no legal excuse.⁹ The law is plain,¹⁰ and “[w]e cannot say [Mecca's] explanation constituted excusable neglect as a matter of law.... Nor can we say that the trial court abused its discretion [ ¹¹] in refusing to grant, for the reason advanced, a judicial extension of the statutory time for filing the answer, in essence allowing a circumvention of the default status of the action.” ¹²

Mecca asserts that “the lack of a requirement of filing something to make a record of the date on which the time for an answer can be calculated violates due process.” ¹³ But Mecca fails to establish how, on the facts of this case, its due process rights were violated.

Prior to the trial court's determination of when an answer was due, Maestro had filed a pleading opposing Mecca's request for an extension; Maestro attached as exhibits to the pleading copies of the notices it had sent to Mecca. The notices provided that they were “being sent to [Mecca] on behalf of [Maestro] on this 16th day of June, 2011.” Accordingly, something was filed from which the trial court could have properly calculated when Mecca's answer was due.¹⁴

Mecca does not assert that it did not receive the notices, or that the form of the notices was improper. In fact, Mecca conceded in its appellate brief that the notices complied with the pertinent statutory requirements; and the record showed that Mecca executed waivers. Mecca argues, rather, that because the notices were not filed with the clerk of court as “separate document[s]” (but rather as exhibits to a pleading), and did not contain certificates of service, the notices (exhibits) were insufficient for the court to determine when Mecca's answer was due.

In this regard, Mecca's reliance on OCGA § 9–11–4(h) is misplaced, as that statutory provision pertinently provides: “Failure to make proof of service shall not affect the validity of the service.” Indeed, “[w]hen the plaintiff files a waiver of service with the court, ... no proof of service shall be required.” ¹⁵ And Mecca points to no authority supporting its position that in order for the trial court to determine when Mecca's answer was due, due process required that Maestro file as separate documents and/or with certificates of service, the notices it had sent Mecca.

In any event, Maestro subsequently filed an affidavit executed by its counsel, attesting that he had signed and mailed on June 16, 2011, to each defendant a notice. The alleged defects were cured by the filing of the affidavit. ¹⁶ Accordingly, the trial court did not err in denying the motion for an extension of time to answer the complaint.

(b) Mecca contends that the trial court erred in finding that it was in default. “As this enumerat[ed] [error] is not supported by either argument or citation of authority, it is abandoned under Court of Appeals Rule [25] (c)(2).” ¹⁷

2. Mecca contends that the trial court erred in declining to open the default judgment. “[T]he trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default will not be interfered with unless that discretion is manifestly abused.” ¹⁸ We find no abuse of discretion by the trial court.

On October 3, 2011, Maestro filed a motion to strike Mecca's answer and to enter a default judgment, “as to all issues of liability with the issue of damages to be heard by the Court at a later date.” In an order filed on October 11, 2011, the trial court, in response to Maestro's motion, cited OCGA § 9–11–55, recognizing that Mecca had automatically defaulted after it failed to timely file an answer.¹⁹ The court recognized that the statute also provided that after the period of time for opening a default had passed and the case was still in default, “the plaintiff at any time thereafter shall be entitled to verdict and judgment by default ... unless the action ... involves...