Tomsic v. Marriott Int'l, Inc.

Decision Date11 April 2013
Docket NumberNo. A12A1919.,A12A1919.
Citation739 S.E.2d 521,321 Ga.App. 374
PartiesTOMSIC v. MARRIOTT INTERNATIONAL, INC., et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Wendy Sullivan Boston, Russell M. Boston, Macon, for Appellant.

Hawkins, Parnell, Thackston & Young, Warner S. Fox, Atlanta, Cynthia Lu Tolbert, Casey Gilson, Robert P. White, Christopher Shane Keith, for Appellee.

McFADDEN, Judge.

Susan J. Tomsic brought an action against Marriott International, Inc. and Marriott's former employee, Broderick Sumner, alleging that Sumner physically and sexually assaulted her while giving her a massage at a hotel managed and operated by Marriott. Pertinently, her complaint alleged that Marriott was liable for negligent hiring and retention, premises liability, and failure to warn. (Tomsic's claims against Sumner are not at issue in this appeal. Likewise, although Tomsic alleged in her complaint that Sumner's acts of battery against her were within the scope of his employment by Marriott, she has not argued on appeal that Marriott should be held liable for those acts under a theory of respondeat superior, and we deem abandoned any claims of error regarding her count alleging battery.) Marriott did not file a timely answer, but the trial court opened the default. The trial court dismissed the failure to warn count and the case proceeded to a jury trial on the remaining counts, including the premises liability count. After the close of evidence, the trial court granted directed verdicts to Marriott on the remaining counts against it. Tomsic appeals.

As detailed below, we find that the trial court was authorized to open the default, because Marriott met the conditions precedent for opening default and presented evidence authorizing the trial court to find a proper case for opening default. We find that the directed verdicts were proper because neither the evidence at trial nor evidence that Tomsic argues was erroneously excluded demonstrated the required element of causation. Finally, we find that the trial court did not err in dismissing the failure to warn count because the relief sought in that count was encompassed within the premises liability claim that proceeded to trial. Accordingly, we affirm.

1. Facts and proceedings below.

On August 31, 2004, Tomsic was attending a professional conference at an Atlanta-area hotel managed and operated by Marriott. She scheduled a massage at the hotel spa. She contends that she began to feel unusually relaxed during the massage, that she became unable to move and barely able to speak, and that the massage therapist, Sumner, then placed his hands around her neck in a threatening manner, bruised her body in several places, touched her breasts and genitals, forced her to touch his naked testicles, and ejaculated into her mouth.

Tomsic originally filed an action against Marriott and Sumner to which Marriott filed a timely answer and a motion for summary judgment. Tomsic later dismissed that action and filed a renewal action. Marriott answered the second action late. Marriott then filed a summary judgment motion and brief that relied on materials that had been filed in the original action, including affidavits setting forth facts in support of its position that it was entitled to summary judgment. The following month, Tomsic moved for default judgment. Marriott moved to open default, and the trial court granted the motion. Subsequently, the trial court granted Marriott's motion under OCGA § 9–11–12(b)(6) to dismiss the failure to warn count.

The action proceeded to trial on Tomsic's remaining claims against both Marriott and Sumner, and at the close of Tomsic's case-in-chief, Marriott moved for directed verdict on the claims against it. The trial court initially denied that motion, but it reconsidered during the charge conference after the close of evidence and granted directed verdicts to Marriott on both claims. (This divested the trial court of venue in the action against Sumner, see OCGA § 9–10–31(d), and consequently the jury did not consider the case against him.) The trial court subsequently entered an order granting the directed verdicts to Marriott and stated that the order was a final judgment in the case.

2. Opening the default.

Tomsic argues that the trial court erred in opening the default. We disagree.

The case went into default when Marriott filed its untimely answer and failed to pay costs to open the default as a matter of right. See OCGA § 9–11–55(a). However,

OCGA § 9–11–55(b) allows a default to be opened on one of three grounds: providential cause, excusable neglect, or a proper case. 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 trial.

(Citations omitted). Strader v. Palladian Enterprises, 312 Ga.App. 646, 648, 719 S.E.2d 541 (2011). Our function in “reviewing a trial court's grant 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 discretion based on the facts peculiar to each case.” Majestic Homes v. Sierra Dev. Corp., 211 Ga.App. 223, 224(1), 438 S.E.2d 686 (1993).

In support of its motion to open default, Marriott submitted the affidavit of an in-house paralegal, who testified that she mistakenly informed Marriott's outside counsel that Tomsic had served her renewal action on Marriott on April 25 when in fact it had been served on April 17. She stated that she made this mistake because she “misread the notice of the suit and service date as the date that it was received from the registered agent and sent to the claims department for Marriott.” She did not realize her error until Tomsic filed her motion for default.

Marriott also submitted the affidavit of its assistant secretary who, having reviewed the complaint and Marriott's answer and motion for summary judgment, declared that [t]he [a]nswer as pled sets forth a meritorious defense to [Tomsic's] allegations and is now made under oath by this [a]ffidavit.” But his testimony was founded on information or belief: “the affirmative defenses and factual statements including admissions or denials of fact contained [in those documents] are true and correct to the best of [my] knowledge.”

The assistant secretary also testified that Marriott was ready to plead instanter and was ready to proceed to trial.

In an unnotarized statement, Marriott's outside counsel described obtaining the incorrect date of service from Marriott's paralegal and not learning that Marriott was in default until he received Tomsic's motion for default judgment. He stated that, had he known of the default when he filed the late answer, he would have tendered costs to the clerk to open the default as a matter of right. He also stated that he had taken and reviewed testimony of various witnesses and that the brief supporting Marriott's summary judgment motion established its legal defenses,including “the fact that Marriott did not have any prior knowledge of incidents sufficiently similar to the incident in question to put it on notice of a potential hazard about which it should warn or somehow protect [Tomsic].”

Marriott's motion to open default also cited to the evidence filed in support of its summary judgment motion in the original action.

a. Conditions precedent.

Tomsic claims that Marriott did not meet the condition precedent of showing, under oath, that it had a meritorious defense. To meet this condition, a defendant must set forth facts that show the existence of the essential elements of its defense. Lucas v. Integrated Health Svcs., 268 Ga.App. 306, 310(2), 601 S.E.2d 701 (2004). Although these facts need not be set forth in great detail, the trial court “must ... have sufficient facts before it to determine if a meritorious defense is factually raised so that the judge can exercise discretion.” (Citation omitted.) Id.

We agree with Tomsic that the affidavits of Marriott's paralegal and assistant secretary did not establish a meritorious defense. The paralegal's affidavit did not address that issue at all. The assistant secretary's affidavit also contained no facts pertaining to Marriott's defense. Although the assistant secretary sought to verify Marriott's previously-filed answer by stating that he incorporated under oath the answer's contents, cf. Strader, 312 Ga.App. at 646, 719 S.E.2d 541 (allowing party to point to facts in verified answer to set forth meritorious defense in support of motion to open default), the assistant secretary qualified this statement as based on his “information or belief ... to the best of [his] knowledge.” Such language alone did not satisfy the requirement that an affidavit or verification be made with personal knowledge, and the contents of the affidavit did not otherwise reflect that the assistant secretary had personal knowledge about facts establishing Marriott's meritorious defense. Compare C. Brown Trucking Co. v. Henderson, 305 Ga.App. 873, 875(1), 700 S.E.2d 882 (2010) with Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga.App. 258, 259, 488 S.E.2d 732 (1997).

We also agree with Tomsic that the unnotarized statement of its outside counsel did not satisfy the condition that the meritorious defense be set forth under oath. Because that document was not notarized, it was not a valid affidavit. Fredrick v. Hinkle, 297 Ga.App. 101, 103(1), 676 S.E.2d 415 (2009). See generally Harris v. Murray, 233 Ga.App. 661, 664(3), 504 S.E.2d 736 (1998) (“In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.”) (citation and punctuation omitted). The trial court erred in finding that...

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