Laurel Baye Healthcare of MacOn, LLC v. Neubauer, 315 Ga. App. 474

Neubauer filed a medical malpractice suit against Laurel Baye for wrongful death of Patricia Lowe.
Laurel Baye was served in April 2009; answer due May 15, 2009, but joint stipulation extended to June 1, 2009.
Laurel Baye did not answer by June 1, 2009; default by operation of law occurred.
Laurel Baye filed untimely June 29, 2009 answer and Neubauer moved for default judgment January 7, 2011.
Laurel Baye paid costs to open default approximately February 2011; trial court entered default judgment against Laurel Baye and denied opening of default.
On appeal, Neubauer argues lack of waiver; Laurel Baye argues waiver; court reverses default judgment and remands for proceedings; cross-appeal dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Neubauer waived the right to default judgment	Neubauer did not waive; merits-based default allowed	Neubauer impliedly waived by actions	Neubauer waived; reverse and remand
Whether Laurel Baye timely opened default by paying costs	moot due to waiver ruling	costs timely opened default	moot; cross-appeal dismissed

Ewing v. Johnston, 175 Ga.App. 760, 334 S.E.2d 703 (Ga. Ct. App. 1985) (waiver by conduct when default rights are not timely pursued)
Ward v. Swartz, 285 Ga.App. 788, 648 S.E.2d 114 (Ga. Ct. App. 2007) (plaintiff may waive default by active participation in case)
Laviano v. Travelers Ins. Co., 276 Ga.App. 611, 624 S.E.2d 189 (Ga. Ct. App. 2005) (waiver by joining issue, going to trial, etc.)
Davis v. Wallace, 310 Ga.App. 340, 713 S.E.2d 446 (Ga. Ct. App. 2011) (discovery and merits actions can constitute waiver of default)
Roberson v. Gnann, 235 Ga.App. 112, 508 S.E.2d 480 (Ga. Ct. App. 1998) (default rights not open where defendant fails to pursue timely)
Bradsher, 258 Ga.App. 265, 573 S.E.2d 504 (Ga. Ct. App. 2002) (opening default as a matter of right by timely answer and costs)