Moore v. Barfield, 76824
| Decision Date | 01 November 1988 |
| Docket Number | No. 76824,76824 |
| Parties | MOORE v. BARFIELD. |
| Court | Georgia Court of Appeals |
Robert L. Herman, David A. Sleppy, Atlanta, for appellant.
Harper & Cooper, Gary M. Cooper, Atlanta, for appellee.
This appeal raises the issue of what remedies are available to a party whose suit is dismissed because of the actions of that party's own attorney at a time when the attorney is ill.
Appellant was injured in a collision between her car and one driven by appellee. She employed an attorney named Jarnagin to represent her, and he filed suit on her behalf. Appellee was served on January 7, 1987, and answered on January 26, 1987, though he served appellant's attorney with interrogatories on January 21, 1987. On April 18, 1987, appellant spent some four hours entering answers to the interrogatories into her attorney's computer at his home. He did not tell her then, or thereafter, that the answers were already late or that there were any problems with the suit. On April 27, 1987, Jarnagin was served with a motion to compel discovery and to impose sanctions. That motion was supported by copies of appellee's attorney's letters to appellant's attorney seeking responses to the interrogatories. The office of the clerk of the trial court sent appellant's counsel a notice on June 2, 1987, that appellee's motion would be decided on the briefs since there had been no request for a hearing. Pursuant to the request therefor in appellee's motion, the trial court entered an order that was filed on June 19, 1987, dismissing appellant's complaint as a sanction for totally failing to answer the interrogatories. Jarnagin's former partner notified appellant by a letter dated July 2, 1987, that her action had been dismissed. On the same day, that attorney filed a motion in the trial court seeking to set aside the judgment. The motion was accompanied by an affidavit from a psychiatrist who averred that he had treated Jarnagin for depression, and that the depression was characterized by an inability to work. In further support of her motion, appellant swore that she stayed in contact with her attorney throughout his employment and that he assured her on every occasion that her suit was progressing appropriately. Jarnagin's former partner also swore that he was aware of Jarnagin's personal and professional problems; that after they dissolved their partnership, they continued to share office space, but that Jarnagin had come to the office less and less; and that Jarnagin had eventually left and he did not know Jarnagin's present whereabouts.
Noting that the motion to set aside was filed outside the term in which the dismissal was filed, the trial judge stated that she had no discretion to exercise in setting aside the judgment, and entered an order denying appellant's motion. This appeal followed our order granting appellant's application for discretionary appeal.
1. In her first enumeration of error, appellant contends that Jarnagin's repeated assurances that the case was progressing appropriately when, in fact, it was foundering, was such a fraud as would authorize setting aside the dismissal under OCGA § 9-11-60(d)(2). That argument is controlled adversely to appellant by Marsh v. Way, 256 Ga. 46, 48, 343 S.E.2d 686 (1986), in which the Supreme Court held that the fraud which will justify setting aside a judgment is that of the other side of the suit. The first enumeration of error is without merit.
2. Appellant's second enumeration, directed to the trial court's rejection of appellant's assertion that her attorney's failure to comply with the discovery request was an accident or mistake within the meaning of OCGA § 9-11-60(d)(2), is equally without merit. This court has held that an "accident" is an event which is not proximately caused by negligence, but arises from an unforeseen or unexplained cause. Chadwick v. Miller, 169 Ga.App 338(1), 312 S.E.2d 835 (1983). Since the failure to file answers to appellee's interrogatories is not unexplained and, from the record in this case, appears to have as its cause Jarnagin's neglect of appellant's suit, that ground is not available to appellant. Similarly, since the mistake here is one by appellant's own attorney, that ground will not serve to authorize setting aside the judgment under OCGA § 9-11-60(d)(2). McCullough v. Molyneaux, 163 Ga.App. 352(3), 294 S.E.2d 560 (1982).
3. In her fourth and sixth enumerations of error, appellant complains of the entry of the order dismissing her suit without a hearing and of the failure of the trial court to hold a hearing on the issue of the attorney fees sought by appellee in his motion for sanctions. As with the other problems in this case, it is clear that it was because of appellant's attorney's default that she...
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Kairos Peachtree Associates v. Papadopoulos, A07A1494.
...mistake attributable to Olson also would not authorize setting aside the judgment under OCGA § 9-11-60(d)(2). Moore v. Barfield, 189 Ga.App. 348, 349(2), 375 S.E.2d 623 (1988); McCullough v. Molyneaux, 163 Ga. App. 352, 354(3), 294 S.E.2d 560 (1982). While Papadopoulos argues on appeal that......
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Northeast Atlanta Sur. Co. v. State
...An accident is an event, not proximately caused by negligence, arising from an unforeseen or unexplained cause. Moore v. Barfield, 189 Ga.App. 348, 349, 375 S.E.2d 623 (1988). A claim of mistake, which is more closely aligned with the present facts, refers to the misapprehension of a past o......
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Smith v. Manns, A91A0905
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