Troika Entm't, LLC v. Mendez
| Decision Date | 23 August 2021 |
| Docket Number | A21A0719 |
| Citation | 360 Ga.App. 904,862 S.E.2d 572 |
| Parties | TROIKA ENTERTAINMENT, LLC et al. v. MENDEZ. |
| Court | Georgia Court of Appeals |
George E. Duncan Jr., Atlanta, William Beck Pate, for Appellant.
Andrew Lee Hagenbush, Sheila Lynne Bilimoria, Atlanta, for Appellee.
Troika Entertainment, LLC, Troika Entertainment Group, Inc., and Troika Entertainment, Inc. appeal the denial of a motion to open default. Contrary to their arguments on appeal, they have not demonstrated that the trial court applied the wrong statute or abused her discretion in denying their motion. So we affirm.
Shari Mendez was breaking down a set after a production of the show The Color Purple when another person lowered a panel onto her finger, severing the tip. On May 7, 2019, she filed suit against the Troika defendants, alleging that the person who lowered the panel onto her finger was their employee. She also sued several John Doe defendants.
The Troika defendants’ registered agent for service of process was served with the summons and complaint on May 8, 2019. The registered agent forwarded the service documents to the Troika defendants by email. On May 24, 2019, since the Troika defendants had not opened the emails, the registered agent sent them hard copies of the summons and complaint via Federal Express. The tracking information indicated that the documents were delivered to the Troika defendants on May 28, 2019.
The Troika defendants did not file an answer to the complaint within 30 days of service of the summons and complaint, see OCGA § 9-11-12 (a), so the case "automatically bec[a]me in default[.]" OCGA § 9-11-55 (a).
On September 30, 2019, the trial court entered a default judgment on the issue of liability against the Troika defendants. Eleven days later, Mendez filed an amended complaint. The amended complaint substituted The Color Purple on Tour, LLC for a John Doe defendant; otherwise the complaint was largely the same as the original and alleged no new causes of action. In October 2019, the court conducted a damages hearing and awarded Mendez judgment against the Troika defendants for $500,000.
In February 2020, the Troika defendants filed a motion to open default or, in the alternative, to set aside the judgment. They attached to their motion an answer to the complaint. The trial court denied the motion and the Troika defendants filed this appeal.
The Troika defendants argue that the trial court erred by labeling the judgment awarding damages to Mendez as a "final verdict and judgment against Troika parties" when The Color Purple remained a party. And, they argue, because the judgment was not final, they could avail themselves of the liberal criteria of OCGA § 9-11-55 (b), which allows a trial court to open default in certain circumstances before final judgment, and were not limited by the more stringent criteria of OCGA § 9-11-60 (d), which allows a trial court to set aside a judgment in certain circumstances after final judgment has been entered. Pine Tree Publishing v. Community Holdings , 242 Ga. App. 689, 690, 531 S.E.2d 137 (2000).
We agree that the judgment awarding damages against the Troika defendants was not a final judgment because The Color Purple was still a party. So OCGA § 9-11-55 (b) applied. Daniell v. Heyn , 169 Ga. App. 772, 315 S.E.2d 284 (1984) (). Contrary to the trial court's ruling, Mendez was not required to seek leave of court to add The Color Purple as a party. See Bishop v. Farhat , 227 Ga. App. 201, 202 (1), 489 S.E.2d 323 (1997) () (emphasis omitted).
But the error was not harmful because the trial court treated the case both ways: the court first held that the Troika defendants were not entitled to set aside the judgment under OCGA § 9-11-60 (d). She then assumed arguendo that the judgment was not final and applied OCGA § 9-11-55 (b), finding that the Troika defendants were not entitled to open default under that statute. So the Troika defendants have not shown that the trial court's labeling of the judgment as final amounted to reversible error.
The Troika defendants next argue that Mendez's amended complaint superseded the original complaint and thus cured their default of the allegations in the original complaint. We disagree. A defendant's failure to timely answer an original complaint puts the case into default of the allegations in that original complaint — even if the plaintiff files an amended complaint. Water's Edge Plantation Homeowner's Assn. v. Reliford , 315 Ga. App. 618, 727 S.E.2d 234 (2012) (); Day v. Norman , 207 Ga. App. 37 (1), 427 S.E.2d 31 (1993).
The Troika defendants argue that the trial court erred by denying their motion to open default because they satisfied the four conditions precedent and demonstrated excusable neglect and a proper case. We cannot say that the trial court abused her discretion in denying the motion.
Under OCGA § 9-11-55 (b), at any time before final judgment, a trial court has the discretion to open default Wright v. Mann , 271 Ga. App. 832, 611 S.E.2d 118 (2005) (footnote omitted). "Compliance with the four conditions is a condition precedent and once met[,] the question of whether to open the default on one of the three grounds rests within the sound discretion of the trial court." Karan, Inc. v. Auto-Owners Ins. Co. , 280 Ga. 545, 547, 629 S.E.2d 260 (2006) (citation omitted). "The 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 discretion based on the facts peculiar to each case." K-Mart Corp. v. Hackett , 237 Ga. App. 127, 128 (1), 514 S.E.2d 884 (1999) (citation and punctuation omitted).
The trial court found that the Troika defendants satisfied the four conditions precedent for setting aside the default, but that they did not demonstrate either excusable neglect or proper case, the two grounds they claim. The court ruled that although the Troika defendants asserted that they suffered email problems that affected their receipt of the summons and complaint, they failed to respond to the hard copy of the documents, which had been delivered by Federal Express; that they were relying on Mendez's attorney to dismiss them from the complaint once she added The Color Purple as a defendant, but they did not check whether they had been dismissed; that they failed to appear at the damages hearing of which they had been notified; and that they relied on The Color Purple's insurer to represent them, although the insurer had instructed them not to do so. We hold that the trial court did not abuse her discretion.
The Troika defendants argue that they reasonably anticipated that their insurance broker would handle the case, so their failure to answer amounted to excusable neglect. We hold that the trial court did not abuse her discretion in rejecting the claim of excusable neglect.
Excusable neglect "refers to cases where there is a reasonable excuse for failing to answer." Bowen v. Savoy , 308 Ga. 204, 207, 839 S.E.2d 546 (2020) (citation and punctuation omitted). To show excusable neglect, the Troika defendants point to the affidavit of their director of engagements, Barrett Newman. Contrary to the Troika defendants’ argument, Newman did not testify that he believed their insurance broker would handle the case on their behalf. Rather, Newman testified that he believed The Color Purple's insurer would handle the Troika defendants’ defense. Specifically, Newman testified about only two communications he had with the insurance broker:
(1) that once the...
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