SIERRA CORRAL HOMES, LLC v. Pourreza
308 Ga. App. 543
| Ga. Ct. App. | 2011Background
- Pourreza contracted Sierra-Corral Homes, LLC to construct a Gainesville home on April 17, 2007; disputes arose and suit filed May 23, 2008 for breach, specific performance, equitable relief, and damages.
- Sierra could not locate its registered agent; service was thus made on the Secretary of State on October 17, 2008.
- Sierra answered untimely; the trial court denied a motion to open default and entered default judgment on March 20, 2009.
- Pourreza proceeded with damages proceedings after remittitur; Sierra moved to set aside the default and to compel arbitration; Pourreza moved to stay arbitration.
- The trial court, on March 18, 2010, denied Sierra’s motions to compel arbitration and to recover attorney fees; Sierra appeals on nine enumerations.
- The Court of Appeals affirms, holding no abuse of discretion on default matters, service validity, cross-examination, and arbitration estoppel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly denied opening the default | Pourreza argues default should be opened due to meritorious defense and proper service. | Sierra contends failure to maintain proper service and address warranted denial. | No abuse; court correctly refused to open default. |
| Whether default judgment was proper given lack of timely answer | Pourreza asserts defaultjudgment valid after untimely answer; no right to file motion for default. | Sierra argues defects in service and defenses undermine default. | Default judgment proper; entry by operation of law and failure to timely answer. |
| Whether cross-examination of Sierra regarding Secretary of State records was proper | Pourreza sought to question accuracy of records maintained by Sierra. | Sierra objected to cross-examination on registration records. | Court did not abuse discretion; cross-examination permitted on registration issues. |
| Whether service via the Secretary of State complied with OCGA 14-11-209(f) | Affidavit of service complied with substituted service requirements. | Affidavit allegedly failed to state two copies were filed with SOS. | Substituted service proper; two copies evidenced by SOS acknowledgment; not clearly erroneous. |
| Whether the arbitration defense was properly barred by default | Sierra argues arbitration should be invoked to resolve disputes. | Pourreza contends arbitration is foreclosed by default or waiver. | Default judgment estopped Sierra from raising arbitration defense; arbitration denied. |
Key Cases Cited
- Vibratech, Inc. v. Frost, 291 Ga.App. 133 (2008) (liberal default-opening standards and necessity of timely notice)
- NorthPoint Group Holdings v. Morris, 300 Ga.App. 491 (2009) (default judgment waives defenses; arbitration defenses fall away)
- Roberson v. Gnann, 235 Ga.App. 112 (1998) (standard for default and procedural rules)
- Conseco Finance Servicing Corp. v. Hill, 252 Ga.App. 774 (2001) (default judgment waives defenses to liability, including arbitration)
- Crawford v. Dammann, 277 Ga.App. 442 (2006) (liberal approach to opening default and discretion of trial court)
- BellSouth Telecommunications v. Future Communications, 293 Ga.App. 247 (2008) (guidance on appellate review of arbitration and related procedures)