Nelson v. Bd. of Regents of The Univ. System of Ga., A10A1278.

Citation704 S.E.2d 868,307 Ga.App. 220
Decision Date01 December 2010
Docket NumberNo. A10A1278.,A10A1278.
PartiesNELSON et al.v.BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.
CourtUnited States Court of Appeals (Georgia)

307 Ga.App. 220
704 S.E.2d 868
10 FCDR 3974

NELSON et al.
v.
BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.

No. A10A1278.

Court of Appeals of Georgia.

Dec. 1, 2010.


[704 S.E.2d 870]

Steven L. Beard, Marietta, Charles M. Cork III, for appellants.Thurbert E. Baker, Attorney General, J. David Stubins, Assistant Attorney General, Hull & Barrett, James S.V. Weston, Augusta, for appellees.DILLARD, Judge.

[307 Ga.App. 220] Plaintiffs James Gary Nelson (“Nelson”), Deborah Nelson, Jeany Pontrelli, and Michael J. Pontrelli filed a medical malpractice action, seeking damages related to the allegedly negligent treatment Nelson received as a patient at the Medical College of Georgia (“MCG”) hospital facility following his surgery to remove a brain tumor[307 Ga.App. 221] . Plaintiffs named as defendants, among others, MCG Health, Inc. (“MCGHI”); Michael Cowan, M.D.; Peter Brown, M.D.; Samuel Macomsen, M.D.; and Christopher Ewart, M.D.

MCGHI failed to file a timely answer to the complaint, and thereafter filed a motion to open default, which the trial court granted. MCGHI then filed a motion for summary judgment, disclaiming liability for plaintiffs' claims. The trial court denied MCGHI's motion, and certified its decision for immediate review. We granted MCGHI's application for interlocutory appeal, and then affirmed the trial court's summary judgment ruling.1 After the remittitur was entered, MCGHI filed a second motion for summary judgment, incorporating an additional affidavit and evidence in support of same. Following a hearing, the trial court granted MCGHI's second motion for summary judgment.

In further proceedings before the trial court, Defendants Cowan, Brown, Macomsen, and Ewart (“the Resident Defendants”) filed a motion to dismiss (claiming immunity from liability in the lawsuit), which was granted.

Plaintiffs filed the instant appeal, challenging the trial court's order granting MCGHI's motion to open default and second motion for summary judgment, as well as its decision granting the Resident Defendants' motion to dismiss. 2 For the reasons set forth, we affirm each of the trial court's decisions.

1. Plaintiffs first contend that the trial court abused its discretion in granting MCGHI's motion to open default. We disagree.

MCGHI was served with plaintiffs' complaint on September 13, 2000, but failed to file a timely answer within 30 days or open the default as a matter of right within 15 days as permitted by OCGA § 9–11–55(a). On November 2, 2000, MCGHI moved to

[704 S.E.2d 871]

open the default, [307 Ga.App. 222] paid costs, filed an answer setting forth meritorious defenses, and announced that it was ready to proceed with trial. MCGHI then supplemented its motion with the affidavits of its director of risk management and chief financial officer, which set forth the basis for its defenses and the reasons for its failure to file a timely answer.

The affidavits explained that MCGHI was not involved in the daily operations of the hospital at the time of Nelson's treatment in September 1998, and that it did not take over the hospital's operations from MCG until July 1, 2000. When the complaint was subsequently served on September 13, 2000, MCGHI was still transitioning into its operation of the hospital and had not yet implemented a new procedure for handling lawsuits. Prior to this transition, all lawsuits against the hospital were handled by the Georgia Department of Administrative Services (“DOAS”), and MCGHI's employees mistakenly assumed that DOAS would also be handling this lawsuit (given that the alleged malpractice took place while the hospital was still under state control). Moreover, this was the first malpractice lawsuit filed against the hospital since MCGHI took over control of the facility's operations, and MCGHI's employees had no prior experience in handling and processing lawsuits. As a result, the employees failed to forward the complaint to the proper persons for handling. MCGHI discovered its error in failing to file a timely answer to the complaint on November 1, 2000, and took prompt remedial action to open the default on the following day.

Upon considering the averments set forth in MCGHI's motion to open default, as well as the supporting affidavits, the trial court found that a “proper case” had been established for the default to be opened and granted the motion. In doing so, the trial court did not abuse its discretion.

OCGA § 9–11–55(b) allows a prejudgment default to be opened on one of three grounds: providential cause, excusable neglect, or a proper case. 3 As a condition precedent to the trial court's consideration of whether any of the three grounds has been met, the defendant must show compliance with four statutory conditions by (1) making a showing under oath, (2) setting up a meritorious defense, (3) offering to plead instanter, and (4) announcing ready to proceed with the trial.4 And here, it is undisputed that MCGHI met the four preconditions for opening the default.

On appeal, plaintiffs limit their challenge to the trial court's determination that MCGHI's averments presented a proper case to [307 Ga.App. 223] allow the default to be opened,5 arguing that (1) MCGHI did not provide the trial court with a “reasonable explanation” for its failure to file a timely answer to their complaint, and (2) the trial court was required to apply the more rigorous “excusable neglect” analysis in considering whether to open the default on the basis that MCGHI mistakenly assumed DOAS would be handling the defense of the lawsuit.

In considering the plaintiffs' argument, we begin by noting that

[t]he “proper case” ground[,] under which the default was opened in this case [,] has been construed to confer discretion on the trial court broader than that conferred on the other two grounds[,] as if reaching out

[704 S.E.2d 872]

to take in every conceivable case where injustice might result if the default were not opened. 6

Indeed, 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.” 7 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.8 For this reason, a default should generally be set aside “where the defendant acts with reasonable promptness and alleges a meritorious defense,” 9 so as to avoid a “drastic sanction” that “should be invoked only in extreme situations.” 10 In sum, once the four preconditions have been satisfied by a defendant, the trial court is vested [307 Ga.App. 224] with broad discretion in determining whether to open a default on the “ proper case” ground,11 and we will not disturb a trial court's decision on this matter absent an abuse of its discretion.12

In the case sub judice, the record shows that, upon discovering the default, MCGHI acted promptly by filing a motion to open the default less than a week after the expiration of the time it could have done so as a matter of right (and one day after learning of the default), and plaintiffs have not demonstrated that they were prejudiced as a result of the default being opened or that the default delayed the litigation in any appreciable manner. 13 Furthermore, MCGHI alleged a meritorious defense to plaintiffs' claims in the lawsuit.14 Under the

[704 S.E.2d 873]

foregoing circumstances, we conclude that the trial court did not abuse its broad discretion in opening the default.15

Contrary to plaintiffs' assertion, it is not for this Court to determine whether, in the first instance, the proffered justification given by MCGHI to the trial court as a basis for opening a default on the proper case ground is “reasonable.” To do so undermines, to the point of eviscerating, the abuse of discretion standard of review we are charged with adhering to in these cases, and is wholly inconsistent with our long-established view that a trial court is to be given wide discretion in determining what is and is not a “proper case” for opening a default.16 Put another way, this Court can (and should) [307 Ga.App. 225] only evaluate the reasonableness of MCGHI's proffered justification for opening a default on the “proper case” ground in the context of considering whether the trial court's acceptance of this justification as a basis for opening the default amounts to a manifest abuse of discretion.17

Finally, plaintiffs' contention that our prior decision in BellSouth Telecommunications v. Future Communications 18 required the trial court to apply the more rigorous “excusable neglect” analysis in considering whether to open the default is without merit. Specifically, plaintiffs appear to read our decision in BellSouth as requiring a trial court to apply, as a matter of law, an excusable neglect analysis in each and every case where a defendant mistakenly assumes that a lawsuit is being handled by another person or entity. Plaintiffs' understanding of our holding in BellSouth is erroneous.

While it is certainly true that some of the language employed in BellSouth is less than precise, it is likewise true, as MCGHI notes in its responsive brief, that there are several opinions of this Court upholding a trial court's decision to open a default on the “proper case” ground in circumstances virtually identical to those presented in the case sub judice.19 Moreover, the precedential utility of this [307 Ga.App. 226] Court's reasoning and holding

[704 S.E.2d 874]

in BellSouth is significantly constrained by the fact that the trial court in that case opened the default “without an explanation of the legal or factual basis for doing so,” 20 which apparently precluded us from being able to identify a reasonable basis for the trial court's decision to open the default....

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    ...inquiry is intensely fact-specific, though case law can offer some guidance. See Nelson v. Bd. of Regents of the Univ. Sys. of Ga. , 307 Ga. App. 220, 225 (1), 704 S.E.2d 868 (2010) (recognizing Bellsouth 's "less than precise" holding and instructing proper case "litigants to keep in mind ......
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