Murray v. Dekalb Farmers Mkt. Inc

• Court: Georgia Court of Appeals
• Writing for the Court: MILLER
• Citation: Murray v. Dekalb Farmers Mkt. Inc., 305 Ga.App. 523, 699 S.E.2d 842 (Ga. App. 2010)
• Decision Date: 04 August 2010
• Docket Number: No. A10A1561.,A10A1561.
• Parties: MURRAYv.DeKALB FARMERS MARKET, INC.

305 Ga.App. 523

699 S.E.2d 842

MURRAYv.DeKALB FARMERS MARKET, INC.

No. A10A1561.

Court of Appeals of Georgia.

Aug. 4, 2010.

Valerie G. Adams, East Point, Grady A. Roberts III, Atlanta, Theresa S. Starkes, for appellant.

Alan C. Harvey, for appellee.

MILLER, Chief Judge.

Sandra Murray sued DeKalb Farmers Market, Inc. (“Farmers”) to recover damages, inter alia, for breach of implied warranty of merchantability, following her purchase and attempted return of live lobster from Farmers. Murray appeals the trial court's order of dismissal, order denying her motion for default judgment, and order awarding sanctions to Farmers, contending that the trial court erred (i) in finding that Farmers' answer was legally sufficient and (ii) in awarding attorney fees to Farmers pursuant to OCGA § 9-15-14(b). Finding that Farmers' answer was legally sufficient and that Murray did not oppose the trial court's attorney fee award of $940, we affirm in part. Concluding that the evidence did not authorize the attorney fee award of $250, we reverse in part.

We apply the plain legal error standard of review to questions of law, and we owe no deference to the trial court's ruling. Phoenix Recovery Group v. Mehta, 291 Ga.App. 874, 875, 663 S.E.2d 290 (2008).

The record shows that on June 6, 2008, a DeKalb County deputy marshal served Farmers with a copy of the summons and complaint by serving Jeff Maber, “in charge of the office and place of doing business.” On July 2, 2008, an individual named Frank Velasquez Monoger filed an answer on behalf of Farmers, denying the allegations in the complaint. On July 30, 2008, Farmers filed an amended answer to the complaint, by and through an attorney, who entered an entry of appearance on its behalf. Thereafter, Farmers moved for sanctions for Murray's failure to respond to interrogatories and request for production of documents previously served upon Murray. The trial court granted Farmers' motion to the extent it awarded attorney fees in favor of Farmers and against Murray's counsel in the amount of $250. Murray subsequently filed a motion for default judgment, alleging that Farmers failed to file a timely and legally sufficient answer because the answer was not filed by an attorney. Farmers responded and acknowledged that its original answer was defective, but that its amended answer, which was filed by an attorney of record before the entry of any pre-trial order, “related back” to the time the original answer was filed and was therefore legally sufficient. Farmers also requested an award of reasonable attorney fees for having to respond to a meritless motion. The trial court denied Murray's motion for default judgment as well as her request for a hearing on the motion; found that Murray's motion was controlled by adverse authority; and that attorney fees were authorized pursuant to OCGA § 9-15-14(a) and (b). In its order, the trial court stated that “[i]f counsel cannot agree on the amount of [Farmers' attorney] fees and expenses, [Farmers'] counsel may present an affidavit as to them.”

Thereafter, Farmers' counsel filed an affidavit as to his attorney fees of $940 along with a letter in which he previously requested payment of $800 from Murray, which was served upon Murray's counsel. In a letter sent to Farmers' counsel, Murray's counsel indicated that she would not consent to the amount of such fees, but she would review the affidavit and the trial court's order and respond at a later time. Murray's counsel, however, never filed a response challenging the cost or reasonableness of Farmers' attorney fees. Noting that the attorney fee affidavit was unopposed, the trial court awarded attorney fees to Farmers and against Murray's counsel in the amount of $940 pursuant to OCGA § 9-15-14(a) and (b).

After Murray and her counsel failed to appear at trial, the trial court dismissed Murray's complaint without prejudice.

As an initial matter, we address Farmers' contention that Murray's appeal is not properly before us because she did not file a discretionary appeal from the trial court's order denying her motion for default judgment. Even though “none of the errors enumerated pertain to the directly appealable [January 11, 2010 dismissal] from which the appeal ... was taken, we have appellate jurisdiction pursuant to OCGA § 5-6-34(d) to review other orders rendered in the case which may affect the proceedings and which are raised in the appeal.” (Citation, punctuation and footnote omitted.) Roberts v. Windsor Credit Svcs., 301 Ga.App. 393, 395(1), 687 S.E.2d 647 (2009). Since Murray was appealing the order of dismissal, order denying her motion for default judgment and orders respecting attorney fees, we have jurisdiction to consider Murray's appeal.

1. Murray argues that the trial court's denial of her motion for default judgment was erroneous because Farmers failed to file a timely and legally sufficient answer. We disagree.

Here, the purported answer filed on July 2, 2008 was defective because Farmers is a corporation which can only be represented in a court of record by an attorney. Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806(2), 485 S.E.2d 22 (1997). Since Farmers filed an amended answer by and through an attorney of record before the entry of a pre-trial order, the amended answer “related back” to the filing of its answer, and was therefore timely and legally sufficient. OCGA § 9-11-15(c) (“Whenever the claim ... asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to...