BOWEN et al. v. SAVOY et al.
S19G0278
Supreme Court of Georgia
February 28, 2020
308 Ga. 204
BENHAM, Justice.
FINAL COPY
We granted certiorari in this case to address the following question: To show a proper case for opening default under
In 2016, Priscilla Savoy, individually and as executor of her mother‘s estate, filed suit against her sisters Eleanor Bowen and Margaret Innocenti2 (collectively “defendants“), contending that they colluded to appropriate funds from their mother‘s estate for their own use. The defendants were served with the summons and complaint on June 20 and 22, 2016. On July 20, 2016, the defendants filed in the trial court a motion to dismiss the complaint for lack of personal jurisdiction, which was supported by a sworn affidavit executed by Bowen denying the factual allegations raised in the complaint. When the defendants did not answer the complaint within 30 days of service, as required by
Litigation continued between the parties for another six months until, on February 15, 2017, the trial court denied the defendants’ motion to dismiss. Six days later, on February 21, the defendants filed an untimely answer. On February 27, Savoy filed a motion for entry of default judgment. That same day, the defendants filed a motion to set aside the default, arguing, in relevant part, that a proper case had been made for opening the default, in support of which their counsel filed a sworn affidavit in which he accepted responsibility for the defendants’ failure to file a timely answer. Counsel explained that, based upon his good faith (mis)understanding that the Civil Practice Act “allow[s] for Defendants who contend the
The trial court granted Savoy‘s motion for default judgment on August 23 and concomitantly issued an order denying the defendants’ motion to set aside the default. In denying the motion to set aside the default, the trial court concluded that the defendants, in seeking to establish a proper case to open the default, had failed to provide a “reasonable explanation” for their failure to file a timely answer. Thereafter, the trial court granted the defendants’ request for a certificate of immediate review. The Court of Appeals granted the defendants’ application for interlocutory review but ultimately affirmed the judgment of the trial court and its conclusion that some reasonable explanation was required to open a default under the “proper case” ground. See
“As in all appeals involving the construction of statutes, our review is conducted under a de novo standard.” Hankla v. Postell, 293 Ga. 692, 693 (749 SE2d 726) (2013). So we turn to the statutory language, mindful that, “[w]hen interpreting a statute, we must give the text its plain and ordinary meaning, view it in the context in which it appears, and read it in its most natural and reasonable way.” State v. Coleman, 306 Ga. 529, 530 (832 SE2d 389) (2019).
The Civil Practice Act provides a remedy for those defendants who, by failing to answer a complaint within 30 days of service, find themselves in default. See
At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened [1] for providential cause preventing the filing of required pleadings or [2] for excusable neglect or [3] where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. . . .
(Emphasis supplied.)
Although our present inquiry is focused on the proper case ground, an understanding of the two other grounds — providential cause and excusable neglect — is informative because we must “avoid a construction that makes some language mere surplusage,” GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829, 841 (3) (834 SE2d 27) (2019), which could occur were we to ascribe the same meaning to two distinct phrases. Neither the Default Judgment Statute nor the Code defines providential cause, excusable neglect, or proper case, so “we must examine the meaning of those words in their broader context, including other legal authorities which may inform our understanding of the phrase‘s meaning in this statute.” Id. at 834.
The phrase “providential cause”
The term “excusable neglect” is likewise a term of art,6 which Black‘s Law Dictionary dates to 1855. See Black‘s Law Dictionary (11th ed. 2019). In one of this Court‘s earliest decisions to construe the predecessor to the Default Judgment Statute, Brucker v. O‘Connor, 115 Ga. 95 (41 SE 245) (1902), we addressed the excusable neglect ground and defined its proper scope: “‘Excusable neglect’ does not mean gross negligence. It does not mean a willful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer.” (Emphasis omitted.) Brucker, 115 Ga. at 96. This Court‘s subsequent decisions concerning the excusable neglect ground have remained consistent with this definition. See, e.g., In re Turk, 267 Ga. 30, 30-31 (1) (471 SE2d 842) (1996) (declining to allow attorney subject to disciplinary proceeding to open default under excusable neglect ground where attorney‘s stated reasons for his failure to answer were “personal problems; numerous office moves resulting in disruption of his mail service; improper calendaring of the response date; misunderstanding of the bar rules; and his preoccupation with a prior disciplinary proceeding“); Ga. Farm Bldgs., Inc. v. Willard, 170 Ga. App. 327, 330 (4) (317 SE2d 229) (1984) (“The term ‘excusable neglect,’ as used in this code section, refers to a ‘reasonable excuse’ for failing to answer, as distinguished from willful disregard of the process of the court.“).
Turning to the final ground and the one at issue here, this Court has explained
By the Default Judgment Statute‘s plain language, the trial court is instructed, when determining whether a proper case exists for the opening of default, to consider “all the facts.” (Emphasis supplied.)
Indeed, the proper case inquiry is intensely fact-specific, though case law can offer some guidance. See Nelson v. Bd. of Regents of the Univ. Sys. of Ga., 307 Ga. App. 220, 225 (1) (704 SE2d 868) (2010) (recognizing BellSouth‘s “less than precise” holding and instructing proper case “litigants to keep in mind that these ‘default cases’ often turn on a variety of factors (e.g., the trial court‘s discretionary judgment, factual subtleties), and that no two are alike, and each must be judged on its own merits” (citation and punctuation omitted)). As with the other two grounds, our prior proper case decisions generally reflect that the defendant‘s failure to file a timely answer must not have resulted from willful or gross negligence. See Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 402 (314 SE2d 199) (1984); Copeland v. Carter, 247 Ga. 542, 543 (1) (277 SE2d 500) (1981). Whether the plaintiff will be harmed or prejudiced by opening the default is likewise a universally pertinent consideration when the proper case ground is pled. See Copeland, 247 Ga. at 543; Axelroad, 232 Ga. at 838. See also Strader v. Palladian Enterprises, 312 Ga. App. 646, 650 (719 SE2d 541) (2011) (no abuse of discretion in opening default on proper case ground where defendant, within two days of learning of the default, “paid costs, moved to continue the case, and filed notice of its intent to move to open the default, which it did twelve days later,” and plaintiff “presented no evidence of prejudice suffered by the opening of the default“); Shortnacy v. N. Atlanta Internal Med., P.C., 252 Ga. App. 321, 324 (1) (556 SE2d 209) (2001) (“[P]laintiffs have demonstrated no prejudice to their case by the opening of default, particularly since they waited 11 months after filing proof of service to move for entry of default judgment.“). Finally, a trial court should bear in mind that this statute “conveys very ample powers” to open defaults, Axelroad, 232 Ga. at 837, and “[i]n keeping with the policy of deciding cases on their merits, this provision should be liberally applied,” Exxon Corp. v. Thomason, 269 Ga. 761, 762 (2) (504 SE2d 676) (1998).
Because we conclude that consideration of a reasonable excuse is not dispositive in the proper case analysis,7 we reverse the Court
Judgment reversed and case remanded. All the Justices concur, except Bethel, J., disqualified.
DECIDED FEBRUARY 28, 2020.
Certiorari to the Court of Appeals of Georgia — 347 Ga. App. XXV.
Patrick W. McKee, for appellants.
Caldwell, Propst & DeLoach, Robert S. Carlson, Lauren J. Miller, Harry W. MacDougald, for appellees.
Notes
In considering the defendants’ motion to open default, the trial court alternatively held that the defendants had failed to establish a meritorious defense. The Court of Appeals did not consider this holding, which may be addressed on remand.
At the trial term the judge in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.
The statute‘s only material revision extended the trial court‘s discretion to open a default beyond the trial term to “any time before final judgment.” See Ga. L. 1946, pp. 761, 778.