Merry v. Robinson
313 Ga. App. 321
| Ga. Ct. App. | 2011Background
- Robinson purchased a Bryan County home in May 2008 and sued Merry and Crosby for defects in design and construction.
- Neither Merry nor Crosby timely answered; the court entered a default judgment against both jointly for over $1 million.
- Merry moved to set aside the default, arguing lack of personal jurisdiction due to improper service; later he moved again after Crosby’s set aside.
- The lower court denied both motions; Merry appeals, and Robinson cross-appeals on Crosby’s set aside.
- Robinson alleged both defendants were jointly responsible for negligence, fraud, breach, nuisance, etc., with a single joint judgment not apportioned.
- Crosby filed for bankruptcy; the trial court later set aside the judgment as to Crosby, raising the indemnity/indivisibility issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Merry's service defense waived? | Robinson contends Merry waived service objections by not raising them in his first responsive pleading. | Merry argues service issues can still defeat personal jurisdiction despite later proceedings. | Affirmed: Merry waived service objection by not raising it in first pleadings. |
| Does indivisibility require setting aside the judgment against Merry when Crosby is released or set aside? | Robinson argues the joint, indivisible judgment remains; Crosby’s removal does not discharge Merry. | Merry asserts the joint judgment should be set aside as to him if Crosby is released, per indivisibility rule. | Reversed: indivisibility requires setting aside the judgment as to Merry as well. |
Key Cases Cited
- Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813 (Ga. 1959) (judgment against joint tortfeasors is single and indivisible in damages)
- Georgia Kraft Co. v. Laborers’ Inti. Union of North America, 170 Ga. App. 581 (Ga. App. 1984) (indivisibility considerations when some defendants released)
- Carlson v. Holt, 152 Ga. App. 95 (Ga. App. 1979) (indivisibility considerations for joint judgments)
- Ammons v. Horton, 128 Ga. App. 273 (Ga. App. 1973) (circumstances where partial release may trigger set-aside of all)
- Shahan v. Scott, 259 Ga. 172 (Ga. 1989) (civil practice service requirements for Georgia residents)
- Fisher v. Muzik, 201 Ga. App. 861 (Ga. App. 1991) (foreign-sheriff service authority under OCGA § 9-10-94)
- Focus Healthcare Medical Center v. O’Neal, 253 Ga. App. 298 (Ga. App. 2002) (waiver of service objections upon default and related pleadings)
- Burch v. Dines, 267 Ga. App. 459 (Ga. App. 2004) (waiver of objection to service when not raised in first pleadings)
- Smithson v. Harry Norman, Inc., 192 Ga. App. 796 (Ga. App. 1989) (waiver of service objections when moving to open default)
- Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466 (Ga. App. 2001) (bankruptcy stay interaction with state-court proceedings)