U.S. Fоodservice of Atlanta, Inc. (“U.S. Foodservice”) sued Associated Doctors of Warner Robins, Inc. (“ADWR”), Freddie J. Wake-field, and Samuel Taylor on ADWR’s open account, on which Wake-field and Taylor were guarantors. The defendants аppeal from the trial court’s order striking their answer and from the denial of their motion to open default. We affirm the trial court’s refusal to open the defaults of Wakefield and Taylor, but reverse the trial court’s decision to strike the answer of ADWR.
The record shows that U.S. Foodservice filed suit against the defendants on August 8, 2000. Wakefield was served personally on August 30, 2000, and was served as the Registered Agent for the corporation on September 6, 2000. Taylor also was served on September 6, 2000. On October 3, 2000, Wakefield filed a pro se “Answers in Writ to Complaints.” On November 7, 2000, U.S. Foodservice moved the court to strike the answer and to enter a default judgment against all defendants.
After receiving the mоtion to strike, the defendants hired counsel. On November 16, 2000, counsel filed an answer on behalf of all three defendants and also filed a motion to open default. Attached to the motion was an affidavit from Wakefield which allеged that he believed that the account was paid in full and that he believes “when all of the invoices are matched up with the checks which were submitted to US Foodservice, it will show that Defendants do not owe to US Foodservice any amount whatsoever.” Wakefield also stated that he thought that his answer was filed on behalf of himself and Taylor.
On January 9, 2001, the trial court granted U.S. FoodService’s motion to strike, finding that the only answer was filed by Wakefield pro se, and that the answer was both untimely and filed without payment of costs. See OCGA § 9-11-55 (a). The trial court also denied the defendants’ mоtion to open default, finding that they had failed to establish excusable neglect or providential cause, and this was not a proper case for opening default. The defendants appeal from this ruling.
1. The defendants contend the trial court erred in striking the answer as to ADWR. We agree. Wakefield’s pro se answer was filed within 30 days of serviсe to ADWR and clearly set out defenses on behalf of the corporation. See OCGA § 9-11-12 (a). Since ADWR is a corporation, though, it can be represented in a court of record only by an attorney, so that “the answer filed by its nоnattomey [officer] was defective. This was an amendable defect, however, which was cured pursuant to OCGA § 9-11-15 when, prior to entry of a pretrial order,
an attorney representing [ADWR] filed an amended answer, which related back to the date of the original answer.” (Citations omitted.)
Peachtree Plastics v. Verhine,
2. This same analysis does not apply to Tаylor, however. Under OCGA § 9-11-11 (a), pleadings on behalf of a party who is represented by an attorney must be signed by that attorney. A party who is not represented by an attorney must sign his own pleading. Id. Because Taylor failed to sign the October 3, 2000 answer or have an attorney
The Supreme Court’s ruling in
Eckles v. Atlanta Technology Group,
3. Further, the November 16, 2000 answer could not relate back to the October 3, 2000 answer to provide a defense for Wakefield. Wakefield’s original pro se answer was filed more than 30 days after he received personal service and was, therefore, invalid as untimely. See OCGA §§ 9-11-12 (a); 9-11-15. Therefore, like Tаylor, Wakefield defaulted as a matter of law. OCGA § 9-11-55 (a). Further, both Taylor and Wakefield failed to open the defаult as a matter of right by filing a valid answer with costs within 15 days of default. Id.
4. The defendants contend that the trial court abused its discretion in failing to open the default. We disagree.
After 45 days have passed since service, and as long as judgment
hаs not been entered in the case, the trial court “may allow the default to be opened for providentiаl cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the fаcts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.” OCGA § 9-11-55 (b). The trial court’s decision on whether to open default will not be reversed by this Court absent an abuse of discretion.
Ellis v. Five Star Dodge,
Although the defendants contend that Wakefield’s mistaken belief that he had filed a timely, proper answer on behalf of all defendants amounted to excusable neglect or, in the alternative, presented a “proper case” for opening default, the trial court rejected this argument. The facts and circumstances of this case do not demand a contrary finding. Accordingly, we find that the trial court did not abuse its discretion in denying the defendants’ motion to open default.
Judgment affirmed in part and reversed in part.
Notes
In reaching this conclusion, it is unnecessary to reach the defendаnts’ second enumeration, which is whether the language of the October 3, 2000 answer should be construed broadly to encompass Taylor’s defenses to this action.