326 Ga. App. 747
Ga. Ct. App.2014Background
- In May 2012 Guthrie sued Winslett for personal injuries and properly served her; Winslett did not file an answer or other defensive pleadings.
- The superior court entered a default judgment for $2,916,204 on August 1, 2012 and ordered Guthrie to mail Winslett a copy by certified mail.
- A new term of court began the Monday after entry; Guthrie did not mail the judgment to Winslett because he could not locate her, but sent it to the insurer on August 8.
- Winslett was located by insurer-provided counsel in late September 2012 and, through that counsel, moved to set aside or vacate the default judgment after the term ended, arguing mental incompetence and lack of notice.
- At the hearing, the trial court found Winslett was not mentally incompetent (crediting psychiatric and lay testimony) and denied the motion to set aside/vacate; Winslett appealed.
Issues
| Issue | Plaintiff's Argument (Guthrie) | Defendant's Argument (Winslett) | Held |
|---|---|---|---|
| Whether default judgment is voidable for defendant's alleged mental incompetence | Judgment valid; service was proper and judge should credit evidence of competence | Winslett was mentally incompetent when served and when judgment entered, so judgment is voidable | Court upheld trial-court credibility finding of competence; judgment not voidable on this ground |
| Whether judgment should be set aside after term ended under OCGA § 9-11-60(d)(2) for fraud/acts of adverse party | Even if Guthrie delayed notice, Winslett’s failure to answer constitutes fault; §9-11-60(d)(2) unavailable | Guthrie’s intentional delay in notifying prevented in-term relief; warrants set aside | Denied: plaintiff’s earlier proper service charged Winslett with duty to answer; her own negligence defeats (d)(2) relief |
| Whether lack of notice of entry is a nonamendable facial defect under OCGA § 9-11-60(d)(3) | Not applicable; (d)(3) addresses failure to notify of trials/hearings, not entry of default judgment | Lack of notice of entry is a nonamendable defect and mandates set aside | Denied: cases cited about hearing/trial notice are inapposite; (d)(3) does not apply |
| Whether judgment could be vacated under OCGA § 9-11-60(g) (clerical error) so it could be reentered and then set aside in-term | Trial court had no duty to notify a defendant who waived notice by failing to plead; Guthrie’s failure to mail per court order is not clerical error in judgment | Trial court’s order requiring Guthrie to mail the judgment shows an error of omission that could be corrected under (g) | Denied: statutory scheme treats failure to answer as waiver of notice; court had no duty to notify, so Guthrie’s noncompliance is not a clerical error in the judgment |
Key Cases Cited
- Keith v. Byram, 225 Ga. 678 (recognizes judgments against mentally incompetent persons are voidable absent guardian)
- Chapman v. Burks, 183 Ga. App. 103 (defines mental incompetence as inability to manage ordinary affairs)
- Daubert v. Merrill Dow Pharm., 509 U.S. 579 (trial court’s gatekeeping role on expert admissibility)
- Agri-Cycle LLC v. Couch, 284 Ga. 90 (abuse-of-discretion review of expert-admissibility rulings)
- Miranda v. Stewart, 312 Ga. App. 290 (post-term set-aside limited to OCGA § 9-11-60 grounds)
- Lee v. Restaurant Mgmt. Svcs., 232 Ga. App. 902 (defendant’s failure to answer can constitute negligence barring (d)(2) relief)
- Moore v. Davidson, 292 Ga. App. 57 (case on notice of trial/hearing distinguished from notice of judgment)
- Cambron v. Canal Ins. Co., 246 Ga. 147 (court may vacate and reenter judgment to cure court’s failure to notify)
- Anderson v. Anderson, 264 Ga. 88 (court assurances of notice can prevent waiver under OCGA § 9-11-5(a))