Shields v. Gish, S06A0212.
| Decision Date | 25 April 2006 |
| Docket Number | No. S06A0212.,S06A0212. |
| Citation | 280 Ga. 556,629 S.E.2d 244 |
| Parties | SHIELDS v. GISH. |
| Court | Georgia Supreme Court |
Harry W. Krumenauer, Daniel L. Britt Jr., Marietta, for appellant.
Angelo Todd Merolla, Atlanta, for appellee.
This appeal primarily concerns whether a defendant can be in default for failing to file an answer to an amended complaint. It arises from an action which had its inception in a statutory partitioning action Gish filed in which she alleged she and Shields had undivided half-interests in specified property. Gish amended her complaint to add claims for equitable partitioning, appointment of a receiver, pecuniary damages, punitive damages, and attorney fees. A return of service showed service of those pleadings and a summons on Shields. Gish subsequently moved for default judgment and the trial court granted that motion, ordering sale of the property and setting a hearing on damages. Following that hearing, the trial court issued a judgment in favor of Gish for pecuniary damages, litigation expenses, and punitive damages. Shields filed a motion denominated "Motion to Vacate" (actually a motion to set aside pursuant to OCGA § 9-11-60(d)(3)), contending he had never been properly served and that a default judgment was improper since he was not required to answer the amended complaint absent a court order to do so and the allegations of the amended complaint were deemed denied by operation of law. After the trial court denied the motion to vacate, Shields filed a timely application for discretionary appeal which this Court granted, posing the question, "Whether the trial court erred in determining that Shields was in default for failing to file an answer to the plaintiff's amended complaint."
1. The trial court's holding that Shields was required to answer the amended complaint to avoid a default was based on Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 249 Ga. 418, 420, 291 S.E.2d 698 (1982), which held that a defendant already in default of an original complaint will be in default of an amended complaint if the defendant does not answer the amended complaint within 30 days of its filing. However, the holding in Teamsters is in conflict with the provisions of OCGA § 9-11-8(d) () and § 9-11-15(a) () and prior appellate court rulings. Grand Lodge of Ga., etc. v. City of Thomasville, 226 Ga. 4(4), 172 S.E.2d 612 (1970). See also Building Associates, Inc. v. Crider, 141 Ga.App. 825(1), 234 S.E.2d 666 (1977): Because the holding in Division 1 of Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, supra, conflicts with the provisions of the Civil Practice Act and with this Court's holding in Grand Lodge, supra, we overrule it and its progeny, e.g., Wilson Welding Service v. Partee, 234 Ga.App. 619, 620, 507 S.E.2d 168 (1998).
2. Gish maintains Shields was required to file an answer to the amended complaint because the trial court ordered him to do so. See OCGA § 9-11-15(a): "A party may plead or move in response to an amended pleading and, when required by an order of the court, shall plead within 15 days after service of the amended pleading, ..." (emphasis supplied); and Evans v. Marshall, 253 Ga.App. 439, 559 S.E.2d 165 (2002) (). Gish contends the summons which the trial court found was served on Shields with the amended complaint constituted an order to answer. However, a summons issued by a clerk of court under OCGA § 9-11-4 is not an order of court for the purpose of requiring an answer to an amended complaint and a defendant is not required to file an answer to an amended complaint unless the trial court itself has affirmatively ordered such answer. Chan v. W-East Trading Corp., 199 Ga.App. 76(5), 403 S.E.2d 840 (1991). Since the trial court did not issue an order to answer the amended complaint, Shields was not required to do so and the averments of that pleading were deemed denied. Consequently, the trial court erred in entering a default judgment against Shields.
Gish argues on appeal that even if the entry of a default was error, it is not a basis for setting aside the judgment because the trial court found that the entry of judgment was based in part on the negligence of Shields. However, that finding had reference to OCGA § 9-11-60(d)(2), which permits a judgment to be set aside on the ground of "[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant. . . ." In the present case, the motion to set aside was based on a different ground, that set forth in OCGA § 9-11-60(d)(3), which permits a judgment to be set aside on the basis of a "nonamendable...
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