Rapid Taxi Co. v. Broughton
| Decision Date | 12 June 2000 |
| Docket Number | No. A00A0266.,A00A0266. |
| Citation | 244 Ga. App. 427,535 S.E.2d 780 |
| Parties | RAPID TAXI COMPANY v. BROUGHTON. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sidney L. Moore, Jr., Atlanta, for appellant. Freedman & Sinowski, Thomas C. Sinowski, Thomas P. deRosay, Atlanta, for appellee.
Rapid Taxi Company appeals the trial court's denial of its motion to set aside a default judgment. Because the trial court erroneously concluded that Rapid Taxi's motion was untimely, we reverse and remand.
James Broughton sued Rapid Taxi for injuries sustained in a collision involving a Rapid Taxi cab. Rapid Taxi answered, alleging that it was not liable for the acts of the driver, who was not its employee or agent. When the case came up for trial, Broughton sought a continuance on the ground that his treating physician was not available. After the trial court denied the motion for a continuance, Broughton dismissed the action without prejudice.
On March 31, 1997, Broughton refiled his complaint against Rapid Taxi, and the matter was assigned a new case number. On April 2, 1997, the complaint and summons were served on Rapid Taxi. Rapid Taxi, however, failed to file a timely answer. On May 22, 1997, more than 45 days after the refiling of the complaint, Broughton filed a motion for a default judgment. On May 27, 1997, the trial court granted Broughton's motion. The trial court's order, which is styled "Default Judgment," provided that "Plaintiff's motion be GRANTED and JUDGMENT be entered against the Defendant, Rapid Taxi Company, Inc., on the issue of liability." The order further provided that the case "be placed on the next available jury trial calendar for trial on the issue of damages."
On June 2, 1997, Rapid Taxi filed a motion to set aside the default pursuant to OCGA § 9-11-55(b). It also filed a proposed answer and paid court costs. Attached to Rapid Taxi's motion was the affidavit of Larene Brown LaSonde, a paralegal in the office of Rapid Taxi's counsel. According to LaSonde, Rapid Taxi promptly forwarded the summons and refiled complaint to counsel's office, but she inadvertently misfiled them, so counsel never saw them and did not file an answer.
The trial court denied Rapid Taxi's motion on the ground that it was untimely. According to the trial court, the motion was moot because it was filed four days after the order entering the default judgment against Rapid Taxi.1 The trial court did not consider the merits of the motion, and it denied Rapid Taxi's motion for reconsideration.
A trial was held on the issue of damages only, and the jury awarded $40,000 to Broughton. The trial court then entered an order directing that "judgment is awarded in favor of Plaintiff and against Defendant."
1. In its first enumeration of error, Rapid Taxi contends that the trial court erred by refusing to consider the merits of its motion to set aside the default. We agree.
Once a final judgment has been entered, however, this Code section no longer applies, and a party seeking to set aside a default judgment must satisfy the more stringent criteria set forth in OCGA § 9-11-60.3 Here, the trial court apparently concluded that its May 27 "Default Judgment" entered against Rapid Taxi was a "final judgment," and that Rapid Taxi's subsequent motion was therefore untimely. But a judgment is not final unless "it disposes of the entire controversy, leaving nothing for the trial court to do in the case."4 The trial court's "Default Judgment" did not dispose of the entire controversy; it merely decided the issue of liability. And, rather than leaving nothing for the trial court to do, the "Default Judgment" directed that the case be placed on the next available jury trial calendar. The interim "Default Judgment" was therefore not a final order. It follows that Rapid Taxi's motion to set aside the default was timely.5
2. Broughton argues that we must affirm the trial court's ruling for a different reason—i.e., because Rapid Taxi failed to satisfy the prerequisites for setting aside a default. Since we affirm a ruling if it is right for any reason,6 we must consider this argument.
Before the trial court may exercise its discretion to open a default under OCGA § 9-11-55(b), the defendant must (1) make a showing under oath; (2) offer to plead instanter; (3) announce readiness to proceed to trial; and (4) set up a meritorious defense.7 Broughton contends that Rapid Taxi failed to satisfy the first and fourth prerequisites and that the trial court therefore had no discretion to consider the merits of its motion. Specifically, Broughton argues that Rapid Taxi's meritorious defense was not stated under oath and was not set forth in sufficient detail. We disagree.
We have held that one of the showings that must be made "under oath" is the existence of a meritorious defense.8 According to Broughton, Rapid Taxi did not meet this requirement because its answer was not verified. Broughton cites SunTrust Bank &c. v. Perry, where the defendant filed an answer denying liability, but the answer was not properly verified. We held that the trial court lacked discretion to open the default because the defendant's showing of a meritorious defense was not made under oath.9 We did not hold, however, that the only way a defendant can show a meritorious defense under oath is by filing a verified complaint. Here, Rapid Taxi satisfied the prerequisite by attaching to its motion an affidavit proper in form that effectively incorporated the allegation in the motion that Rapid Taxi was not liable.10
We have also held that a mere averment that meritorious defenses exist is insufficient.11 Here, however, Rapid Taxi stated that it was not liable because the driver of the automobile was an independent contractor, not an employee. This was adequate detail.
"It is well-settled that a statute which confers discretion upon a judge to decide a particular question also imposes a correlative duty to exercise that discretion when the occasion arises."12 Because Rapid Taxi satisfied the prerequisites of OCGA § 9-11-55(b), we reverse and remand for the trial court to exercise its discretion and to consider the merits of Rapid Taxi's motion to set aside the default.13
3. In view of our holdings in Divisions 1 and 2, we need not address Rapid Taxi's other enumeration of error.
Judgment reversed and remanded.
1. Actually, the motion to set aside the default was filed five days after the entry of the order styled "Default Judgment."
2. (Emphasis supplied.)
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