Florez v. STATE, EX REL. ALTMAN
311 Ga. App. 378
Ga. Ct. App.2011Background
- Civil RICO action filed by State of Georgia on July 8, 2010 against Raymond Florez III, Gabriel Florez, EZ Pay Auto, Inc., and Club Silverado, with property defendants identified in rem.
- Defendants were served July 15, 2010; proofs of service filed July 26, 2010.
- Default judgment entered September 1, 2010 for lack of responsive pleadings.
- Appellants filed notices of appeal on September 9, 2010 instead of opening default in trial court.
- Amendment to OCGA 9-11-4(h) effective July 1, 2010 changed when proof of service must be filed and thus affected the answer deadline.
- Premature entry of default judgment occurred, with potential to set aside or open the default within a 15-day window.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default judgment was premature but openable under the 15-day rule. | Appellants failed to open default within 15 days; judgment should stand. | Judgment was premature and appellants had absolute right to open within 15 days by filing defenses and costs. | Appellants had the 15 days to open; premature judgment could be set aside on remand. |
| Whether filing a notice of appeal divested the trial court of authority to open default. | Appeal divested trial court of further action on default. | Opening default did not require court action; pleading alone sufficed. | Not required to seek court permission; action to open default could occur within 15 days. |
| Whether the 15-day default-opening period was tolled by the notice of appeal. | Appeal tolled the 15-day period. | No tolling of the 15-day window via notice of appeal. | Notice of appeal did not toll the 15-day period. |
| Whether the in rem execution orders and supersedeas issues were properly handled given the supersedeas bond. | Appeal prevented enforcement of judgment. | Bond posting satisfied supersedeas conditions; enforcement permissible. | Supersedeas bond posted; enforcement permissible pending appeal; remand/affirmation decisions appropriate. |
| What remedy should follow the premature judgment on remand? | Premature entry requires automatic setting aside. | Remand to consider reentry of judgment or proper motion to open default. | Premature judgment should be set aside on remand, with option to reenter judgment or require proper opening. |
Key Cases Cited
- Potts v. Smith Grain Co., 99 Ga.App. 270 (1959) (premature default judgments may be opened within 15 days by defenses and costs)
- Parker v. Branan, 108 Ga.App. 229 (1963) (absolute right to open default within 15 days; premature judgments must be set aside if timely)
- Camelback Mgmt. Co. v. Phoenix Periodicals, 192 Ga.App. 101 (1989) (an answer suffices to open default within 15 days; motion to set aside unnecessary)
- Brock Built City Neighborhoods, LLC v. Century Fire Protection, LLC, 295 Ga.App. 205 (2008) (jurisdiction to appeal/default judgments where no motion to open within 15 days)
- Hawn v. Chastain, 246 Ga. 723 (1980) (supersedeas implications in execution on appeal)