Winslett v. Guthrie

• Decision Date: 06 October 2014
• Docket Number: No. A13A1891.,A13A1891.
• Parties: WINSLETT v. GUTHRIE.
• Court: Georgia Court of Appeals

326 Ga.App. 747

755 S.E.2d 287

WINSLETT

v.GUTHRIE.

No. A13A1891.

Court of Appeals of Georgia.

March 13, 2014.

Reconsideration Denied April 2, 2014.

Certiorari Denied Oct. 6, 2014.

Waldrep, Mullin & Callahan, Neal Joseph Callahan, Columbus, Virgil Theodore Theus, for Appellant.

Branch & Hodges, Stephen Joseph Hodges, Charles A. Gower, Charles Austin Gower Jr., Columbus, Bondurant, Mixson & Elmore, Michael Brian Terry, Atlanta, for Appellee.

McFADDEN, Judge.

This discretionary appeal concerns Bonnie Winslett's attempt to have a default judgment against her either set aside or vacated after the end of the term of court in which the trial court entered the judgment. There is no dispute that the plaintiff, Terry Guthrie, served Winslett with the complaint or that Winslett failed to file any defensive pleadings before the default judgment was entered. Winslett, however, argues that the default judgment is fundamentally unfair and must be set aside or vacated for two main reasons—because she was mentally incompetent and because she was not notified of the entry of the default judgment. But as detailed below, the trial court found that Winslett was not mentally incompetent, and there was evidence to support that finding. And Winslett's various arguments pertaining to her failure to receive notice do not demonstrate a ground for either setting aside or vacating a judgment outside the term of court in which it was entered. Accordingly, we affirm.

1. Facts and procedural history.

On February 26, 2012, Winslett and Guthrie were involved in a vehicular collision in which Winslett was driving a car she did not own and Guthrie was riding a bicycle. In May 2012, Guthrie filed a personal injury action against Winslett in the Superior Court of Muscogee County and served the complaint on her. Winslett did not answer or otherwise respond to the complaint. On Wednesday, August 1, 2012, the trial court entered a default judgment of $2,916,204 against Winslett. In the judgment, the trial court ordered Guthrie to provide Winslett a copy of the order entering the judgment by certified mail. A new term of court began the following Monday. See OCGA § 15–6–3(8)(D) (regarding terms of court for Superior Court of Muscogee County).

Guthrie did not provide Winslett with a copy of the default judgment. He represents this was because he could not locate her. Instead, on August 8, 2012, he sent a copy of the judgment to the insurance carrier that had issued coverage on the car Winslett had been driving. An attorney provided by the insurance carrier to represent Winslett located her on September 20, 2012. On September 28, 2012, through that attorney, she moved to set aside or vacate the default judgment, arguing among other things that she was mentally incompetent and had not received notice of the judgment.

At a hearing on Winslett's motion, the parties presented conflicting evidence concerning her mental competence. The trial court subsequently denied the motion.

2. Winslett's mental competence.

Winslett argues that the trial court should have set aside the default judgment because she was mentally incompetent when she was served with the complaint and when the judgment was entered against her, rendering that judgment voidable. See Keith v. Byram, 225 Ga. 678, 679(1), 171 S.E.2d 120 (1969) (a “judgment rendered against an insane person who has no legal guardian and for whom no guardian ad litem has been appointed for the purpose of appearing for him in that proceeding is voidable, even in a case where the insane person was represented by counsel”) (citation omitted); Chapman v. Burks, 183 Ga.App. 103, 104(1), 357 S.E.2d 832 (1987) (explaining that the term “insane person” and the term “mentally incompetent person” mean the same thing). The trial court instead found that Winslett was not mentally incompetent. Because the trial court acted as factfinder in making this determination, we will not disturb its findings on appellate review if they are supported by any evidence. See Savannah Cemetery Group v. DePue–Wilbert Vault Co., 307 Ga.App. 206–207(1), 704 S.E.2d 858 (2010).

The parties have not pointed to any authority on how to determine if a person is mentally incompetent for the purpose of rendering a judgment voidable. But in another civil context, we have defined mental incompetence as

whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. It means an individual lacking in the capacity to manage his own affairs.... [E]vidence that he was without sufficient mental capacity to perform or understand his conduct during the relevant period would meet the test.

Chapman, 183 Ga.App. at 105(1), 357 S.E.2d 832 (citations and punctuation omitted).

Applying this definition, we find evidence supporting the trial court's finding that Winslett was not mentally incompetent. Although Winslett had a lifelong history of significant mental illness, she had never been adjudicated or declared mentally incompetent. Two attorneys who had represented her in guilty pleas to criminal charges in 2011 and 2012 testified that, as a general matter, they would not advise a client to proceed with a guilty plea if she had appeared mentally incompetent to them. The law enforcement officer who served Winslett with the complaint in this case testified that she did not appear to him to be mentally incapacitated. A corrections officer who had interacted with Winslett in jail during a period of time ending in early 2012 testified that Winslett asked cogent questions about her criminal case, her sentence, and her monetary account at the jail.

Finally, a psychiatrist testified that Winslett displayed borderline intellectual functioning in her video-recorded deposition, which the psychiatrist watched. He explained that persons with such functioning “are usually responsible for themselves, they have jobs, they marry, they don't have guardians.” He testified that he “[didn't] see anything that indicates that [Winslett] is functionally and mentally a minor child,” and he disputed portions of the affidavit of a psychiatrist who had treated Winslett sporadically over the years and who had averred that she was not capable of managing her affairs or understanding the need to respond to the lawsuit. Winslett argues that the trial court “erred in denying [her] Daubert challenge,” in which she argued that the psychiatrist's testimony was inadmissible because his review of her video-recorded deposition provided an insufficient foundation for his opinion. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592–593(C), 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (describing trial court's role in ensuring that expert evidence heard by factfinder meets certain threshold requirements). The admissibility of the psychiatrist's testimony rested “in the broad discretion of the court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion.” Agri–Cycle LLC v. Couch, 284 Ga. 90, 93(5), 663 S.E.2d 175 (2008) (citation and punctuation omitted). “Our review of the record shows no abuse of discretion in this case, particularly since the trial court, as the trier of fact in the [hearing], was free to accept the parts of [the psychiatrist's] testimony that were credible and useful and to reject the rest.” Walls v. Walls, 291 Ga. 757, 758–759(3), 732 S.E.2d 407 (2012) (citation omitted).

It was for the trial court as factfinder to assess the credibility of the conflicting evidenceon Winslett's mental competency. Savannah Cemetery Group, 307 Ga.App. at 206–207(1), 704 S.E.2d 858. We find no error in the trial court's determination that she was mentally competent. Accordingly, the trial court did not err in denying her motion to set aside the judgment on the ground of mental incompetency.

3. Lack of notice as a ground to set aside the default judgment.

Winslett argues that the trial court should have set aside the default judgment because she was not provided with notice of the entry of that judgment. Because the term of court in which the trial court entered the judgment had ended when Winslett moved to set it aside, the trial court was permitted to set aside the judgment only under OCGA § 9–11–60. Miranda v. Stewart, 312 Ga.App. 290, 291, 718 S.E.2d 123 (2011). Winslett contends that the set aside was warranted under both OCGA § 9–11–60(d)(2) (permitting motion to set aside based on “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant”) and OCGA § 9–11–60(d)(3) (permitting motion to set aside based on “[a] nonamendable defect which appears upon the face of the record or pleadings”). But neither subsection provides a ground for setting aside the judgment in this case.

(a) OCGA § 9–11–60(d)(2).

OCGA § 9–11–60(d)(2) provides that a motion “may be brought to set aside a judgment based upon ... [f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” Winslett argues that she is entitled to have the default judgment set aside under this subsection because Guthrie intentionally delayed notifying her about the judgment until after the end of the term of court in which the judgment was entered, despite being ordered to do so by the trial court. She argues that this delay prevented her from asking the trial court to set aside the judgment within the term of court in which it was entered, when the trial court could have set the judgment aside under its broader, inherent power rather than the more limited grounds of OCGA § 9–11–60. See Ammons v. Bolick, 233 Ga. 324, 325(1), 210 S.E.2d 796 (1974); Miranda, 312 Ga.App. at 291, 718 S.E.2d 123; Lee v. Restaurant Mgmt. Svcs., 232 Ga.App. 902, 903(1), 503 S.E.2d 59 (1998).

But even if Guthrie took some act in prosecuting his lawsuit that could be construed as a ground for setting aside the judgment under OCGA § 9–11–60(d)(2), “the alleged [act] is not...