Williams v. Contemporary Servs. Corp., No. A13A1464.
| Court | Georgia Court of Appeals |
| Writing for the Court | BRANCH, Judge. |
| Citation | 750 S.E.2d 460,325 Ga.App. 299 |
| Docket Number | No. A13A1464. |
| Decision Date | 13 November 2013 |
| Parties | WILLIAMS v. CONTEMPORARY SERVICES CORPORATION et al. |
325 Ga.App. 299
750 S.E.2d 460
WILLIAMS
v.
CONTEMPORARY SERVICES CORPORATION et al.
No. A13A1464.
Court of Appeals of Georgia.
Nov. 13, 2013.
Reconsideration Denied Dec. 6, 2013.
Donald Ellis, for Appellant.
King & Yaklin, Stephen Andrew Yaklin, for Appellees.
BRANCH, Judge.
Nora Williams appeals the trial court's decisions to set aside a default judgment and to open default in favor of Contemporary Services Corporation ("Contemporary"). For the reasons stated below, we reverse.
The record shows that Williams filed her complaint for damages on March 3, 2010; that Williams caused Contemporary's registered agent in Georgia to be served on March 11, 2010; that on June 3, 2010, Williams filed proof of service of process; and that as of June 30, 2010, Contemporary had failed to answer. On June 30, 2010, the trial court issued a rule nisi for a hearing to be held on August 13, 2010, and on that day the trial court held a hearing and a bench trial on damages, following which it entered a judgment by default in the amount of $85,000 plus interest.1
On October 20, 2010, Contemporary filed a motion to set aside the judgment and to open default, as well as a certificate of counsel, supporting affidavits, and a proposed answer. Eight months later, on June 21, 2011, the trial court granted Contemporary's motion, set aside the default judgment, and opened default. On June 27, 2011, Contemporary filed its answer and paid the costs to open default. Williams thereafter moved for reconsideration, but the court denied the motion.
The case proceeded to a bench trial. Following opening arguments, Williams rested her case without introducing evidence. Contemporary moved for a judgment on the grounds that Williams failed to introduce any evidence and failed to prosecute the case. The trial court directed a verdict in favor of Contemporary and subsequently entered a final judgment in favor of Contemporary on August 22, 2012. Williams filed a notice of appeal from this judgment on August 30, 2012.
1. Williams contends the trial court erred by setting aside the default judgment. "A trial court's decision regarding a motion to set aside a judgment will not be reversed absent a showing of manifest abuse of discretion." (Citation omitted.) Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga.App. 564, 566(2), 504 S.E.2d 710 (1998).
Outside of the term of court in which a judgment has been entered,2 it may be set aside only for one of three reasons:
(1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the face of the record or pleadings.
OCGA § 9–11–60(d) ; The Pantry v. Harris, 271 Ga.App. 346, 347(2), 609 S.E.2d 692 (2005) ("the first and essential step against any final judgment, including a default judgment, is a motion to set aside the judgment under OCGA § 9–11–60(d)"). In this case,
the trial court set aside the default judgment on the ground that a nonamendable defect appeared on the face of the record in that "[h]aving reviewed the record, it appears that no Certificate of Default was ever filed by Plaintiff" in compliance with Uniform Superior Court Rule ("USCR") 15.3 Williams contends this ruling was error. We agree.4
In attempting to secure a default judgment, Williams was required by USCR 15 to "certify to the court" in writing two items of information: the date and type of service effected on Contemporary and that the court records show no defensive pleading had been filed. The rule provides that the certificate "must be attached to the proposed default judgment when presented to the judge for signature." The plain terms of the rule show that the certificate is intended to assure the judge who has received a proposed default judgment that the defendant was in fact served and in fact failed to answer, information already available in...
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Skipper v. Paul, A20A0521
...to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d) (3). Williams v. Contemporary Servs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). See also Oxmoor Portfolio , 320 Ga. App. at 644-645 (2), 740 S.E.2d 363 (recognizing that an answer not bearing ne......
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Capital Floors, LLC v. Furman, A19A1418
...the defendant was in fact served [with the complaint] and in fact failed to [file an] answer." Williams v. Contemporary Svcs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). The Furmans, however, sought a default judgment as a discovery sanction for Capital Floors’ total failure to re......
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Capital Floors, LLC v. Furman, A19A1418
...the defendant was in fact served [with the complaint] and in fact failed to [file an] answer." Williams v. Contemporary Svcs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). The Furmans, however, sought a default judgment as a discovery sanction for Capital Floors’ total failure to re......
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Kemron Envtl. Servs., Inc. v. Prospira Paincare, Inc., A21A1781
...was in fact served and in fact failed to answer, information already available in the record." Williams v. Contemp. Servs. Corp. , 325 Ga. App. 299, 301 (1), 750 S.E.2d 460 (2013) ; see also Smith v. Sanders , 360 Ga. App. 286, 290 (2), 861 S.E.2d 123 (2021) ("We have held that, based on th......
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Capital Floors, LLC v. Furman, A19A1418
...the defendant was in fact served [with the complaint] and in fact failed to [file an] answer." Williams v. Contemporary Svcs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). The Furmans, however, sought a default judgment as a discovery sanction for Capital Floors’ total failure to re......
-
Skipper v. Paul, A20A0521
...to authorize the trial court to set aside a default judgment under OCGA § 9-11-60 (d) (3). Williams v. Contemporary Servs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). See also Oxmoor Portfolio , 320 Ga. App. at 644-645 (2), 740 S.E.2d 363 (recognizing that an answer not bearing ne......
-
Capital Floors, LLC v. Furman, A19A1418
...the defendant was in fact served [with the complaint] and in fact failed to [file an] answer." Williams v. Contemporary Svcs. Corp. , 325 Ga. App. 299, 301, 750 S.E.2d 460 (2013). The Furmans, however, sought a default judgment as a discovery sanction for Capital Floors’ total failure to re......
-
Kemron Envtl. Servs., Inc. v. Prospira Paincare, Inc., A21A1781
...was in fact served and in fact failed to answer, information already available in the record." Williams v. Contemp. Servs. Corp. , 325 Ga. App. 299, 301 (1), 750 S.E.2d 460 (2013) ; see also Smith v. Sanders , 360 Ga. App. 286, 290 (2), 861 S.E.2d 123 (2021) ("We have held that, based on th......