Patterson v. Bristol Timber Co.

• Decision Date: 09 July 2007
• Docket Number: No. A07A0343.,A07A0343.
• Citation: 649 S.E.2d 795,286 Ga. App. 423
• Parties: PATTERSON v. BRISTOL TIMBER COMPANY et al.
• Court: Georgia Court of Appeals

286 Ga. App. 423

649 S.E.2d 795

PATTERSON v. BRISTOL TIMBER COMPANY et al.

No. A07A0343.

Court of Appeals of Georgia.

July 9, 2007.

William H. Stoll, Rome, for appellant.

Bray & Johnson, H. Michael Bray, Canton, Lauren L. McKenzie, Mathew A. Baker, Richard A. Jones, for appellees.

ADAMS, Judge.

This appeal arises from a personal injury suit filed by William Patterson against Bristol Timber Company and R.C. Moore, Jr. On appeal, Patterson raises arguments addressing the trial court's orders reopening a default judgment against Bristol and granting summary judgment to Bristol and Moore.

Bristol is a company engaged primarily in the logging and wood chipping industry. Moore is the president and CEO of the wholly-owned corporation. On November 1, 2002, Bristol entered into a contract to supply wood chips to Inland Paperboard and Packaging, Inc., d/b/a Temple-Inland Forest ("Inland"). To effectuate that contract, Bristol entered into a subcontract with Patterson's employer, Brownlow Trucking Company, to load and transport the wood chips to Inland. Bristol maintains a front-end loader at its wood chipping facility to assist in the loading of wood chips onto trucks for delivery. Patterson's complaint asserts that he was injured on Bristol's premises on July 12, 2003 when he fell off a ladder while exiting this loader.

Patterson filed his complaint on November 29, 2004, asserting negligence and premises liability on the part of Bristol and asserting that Moore was individually liable because Bristol was merely his alter ego. Service was achieved on Bristol's registered agent for service of process on December 8, 2004, and Moore was served on January 18, 2005. Moore filed a timely answer to the complaint, but Bristol's answer was filed outside the statutory period. OCGA § 9-11-12(a). Patterson moved for entry of a default judgment, and Bristol countered with a motion to open default.

In support of that motion, Moore averred that as president of Bristol, he gave the summons and complaint to insurance agent Jay Woodall on or about December 9 or 10, 2004, for Woodall to forward to Bristol's insurance carrier. He relied upon Woodall's repeated assurances that he had forwarded the suit for defense. Bristol did not discover until February 11, well after the time for filing an answer, that no answer had been filed on its behalf because Woodall had sent the suit to the wrong insurance carrier. Following a hearing,¹ the trial court granted Bristol's motion to open default and denied Patterson's motion to reconsider that decision.

On May 9, 2005, Moore moved for summary judgment on Patterson's complaint. Two months later, Bristol also moved for summary judgment. Patterson subsequently amended his complaint to assert additional claims for negligent bailment against both Bristol and Moore. In response, both defendants amended their motions for summary judgment to address the new bailment claims. Additionally, on February 28, 2006, Bristol filed a second motion for summary judgment, claiming tort immunity pursuant to OCGA §§ 34-9-8(a) and (d) and 34-9-11 of the workers' compensation laws.

Several days later, on March 3, 2006, the trial court held a hearing on Moore's motion and Bristol's first motion for summary judgment. After hearing argument from the parties, the court granted Moore's motion stating that Patterson had not established his theory of alter ego liability, but it denied Bristol's initial summary judgment motion. Despite the trial court's grant of summary judgment to Moore, Patterson filed a "Voluntary Dismissal Without Prejudice" dismissing Moore from the lawsuit on the morning of March 6. Later that same day, the trial court entered a written order granting Moore's motion for summary judgment stating that Patterson had failed to establish his claim of alter ego. On May 5, 2006, the trial court heard argument on Bristol's second motion for summary judgment on the ground of tort immunity, and on July 17, 2006, the court granted that motion. This appeal followed on August 11, 2006.

1. The notice of appeal provides that Patterson is appealing from the trial court's July 17 order granting Bristol summary judgment, the trial court's earlier orders allowing Bristol to open the default, and "other adverse orders and said orders having been entered in this action on or about March 25, 2005." Patterson's appellate brief, however, addresses not only the motions listed in the notice, but also the trial court's order granting Moore's motion for summary judgment.² Moore has moved to dismiss the appeal as to him individually, noting that he was granted summary judgment on March 6, and Patterson has failed to appeal that ruling in a timely manner under OCGA § 5-6-38(a).

The trial court's March 6 order was directly appealable under OCGA § 9-11-56(h), but such an appeal was not mandatory. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641 (1978). Since the order was not appealed within the 30-day statutory limit, however, it could only be appealed after entry of the final judgment in the case. Jones v. Walker, 209 Ga.App. 532, 534(1), 433 S.E.2d 726 (1993). We must determine, therefore, whether the July 17 order granting summary judgment to Bristol represented the final judgment in the case.

Under OCGA § 5-6-34(a)(1), a trial court's order constitutes a final judgment "where it leaves no issues remaining to be resolved, constitutes the court's final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court." (Citations, punctuation and footnotes omitted.) Standridge v. Spillers, 263 Ga. App. 401, 403(1), 587 S.E.2d 862 (2003). At the time the trial court granted Bristol summary judgment, it had previously entered its March 6 order granting Moore summary judgment, and Patterson had filed a voluntary dismissal of Moore that same day. The trial court's order provided that it was granting summary judgment because Patterson had "failed to show in his opposition motion that Moore, the individual, was an alter ego of the Defendant, Bristol Timber Company." Although the trial court announced at the hearing that it was granting summary judgment as to all claims, the written order purports to grant summary judgment only as to claims based upon the alter ego theory. The bailment claim, however, was not based upon a theory of alter ego, but instead was based upon an allegation that Moore owned the loader in his personal capacity. Thus it was unclear at the time of appeal whether all claims had been adjudged in Moore's favor.

Moreover, Moore had filed an objection to Patterson's voluntary dismissal, which was pending before the trial court at the time of the appeal. A hearing on the objection was scheduled for October 6, 2006, and the trial court issued an order on October 9. The order stated that the trial judge's oral pronouncement of summary judgment on March 3 was intended to dispose of all claims against Moore. The trial court thus concluded that Patterson's voluntary dismissal had no force or effect because his counsel was present at this pronouncement. The court found, however, that due to clerical error, the March 6 written order may not have clearly conveyed the court's intent to dismiss all claims against Moore. To address this lack of clarity, the court submitted a "new order" specifically granting summary judgment to Moore on all counts. Thus, the issue of whether any claims remained against Moore was not resolved until after the appeal was filed, when the trial court issued a new order granting the motion for summary judgment as to all claims.³

Under these circumstances, we find that the trial court's March 6 order was a grant of only partial summary judgment to Moore, and thus the July 17 order granting summary judgment to Bristol was not the final judgment in the case. Rather, the October 9 order appears to be the final judgment in the case as it disposed of all claims and resolved all remaining issues. See McKesson Corp. v. Green, ___ Ga.App. ___, ___(1), 648 S.E.2d 457 (2007) (order deciding objection to voluntary dismissal represented final judgment in the case). And although the July 17 order was appealable under OCGA § 9-11-56(h), we have no jurisdiction in this appeal to consider Patterson's claims regarding the March 6 order granting partial summary judgment to Moore. "[W]here [an appellant fails] to bring a timely appeal from a grant of partial summary judgment, [he cannot] obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order did not constitute a final judgment." (Citation omitted.) Hutchison v. Nat. Svcs. Indus., 191 Ga.App. 885, 886(1), 383 S.E.2d 212 (1989).

Accordingly, Moore's motion to dismiss is granted, and any arguments addressing the March 6 order will be disregarded.

2. Turning to the remaining issues, we first address Patterson's contention that the trial court erred in granting Bristol's motion to open default and in denying his motion for reconsideration of that issue.⁴

OCGA § 9-11-55(b) governs this issue, and it provides that:

a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.

(Citation omitted; emphasis in original.) Constructamax, Inc. v. Andy Bland Constr., 280 Ga.App. 403, 404(1), 634 S.E.2d 168 (2006). The decision whether to open a default on these grounds rests within the discretion of the trial judge. Thus, "[t]he sole function of an appellate court reviewing a trial court's denial 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...