This discretionary appeal concerns Bonnie Winslett’s attempt to have a default judgment against her either set aside or vacated after the end of the term of court in which the trial court entered the judgment. There is no dispute that the plaintiff, Terry Guthrie, served Winslett with the complaint or that Winslett failed to file any defensive pleadings before the default judgment was entered. Winslett, however, argues that the default judgment is fundamentally unfair and must be set aside or vacated for two main reasons — because she was mentally incompetent and because she was not notified of the entry of the default judgment. But as detailed below, the trial court found that Winslett was not mentally incompetent, and there was evidence to support that finding. And Winslett’s various arguments pertaining to her failure to receive notice do not demonstrate a ground for either setting aside or vacating a judgment outside the term of court in which it was entered. Accordingly, we affirm.
1. Facts and procedural history.
On February 26, 2012, Winslett and Guthrie were involved in a vehicular collision in which Winslett was driving a car she did not own and Guthrie was riding a bicycle. In May 2012, Guthrie filed a personal injury action against Winslett in the Superior Court of Muscogee County and served the complaint on her. Winslett did not answer or otherwise respond to the complaint. On Wednesday, August 1, 2012, the trial court entered a default judgment of $2,916,204 against Winslett. In the judgment, the trial court ordered Guthrie to provide Winslett a copy of the order entering the judgment by certified mail. A new term of court began the following Monday. See OCGA § 15-6-3 (8) (D) (regarding terms of court for Superior Court of Muscogee County).
Guthrie did not provide Winslett with a copy of the default judgment. He represents this was because he could not locate her. Instead, on August 8, 2012, he sent a copy of the judgment to the insurance carrier that had issued coverage on the car Winslett had been driving. An attorney provided by the insurance carrier to represent Winslett located her on September 20,2012. On September 28, 2012, through that attorney, she moved to set aside or vacate the default judgment, arguing among other things that she was mentally incompetent and had not received notice of the judgment.
At a hearing on Winslett’s motion, the parties presented conflicting evidence concerning her mental competence. The trial court subsequently denied the motion.
Winslett argues that the trial court should have set aside the default judgment because she was mentally incompetent when she was served with the complaint and when the judgment was entered against her, rendering that judgment voidable. See Keith v. Byram,
The parties have not pointed to any authority on how to determine if a person is mentally incompetent for the purpose of rendering a judgment voidable. But in another civil context, we have defined mental incompetence as
whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. It means an individual lacking in the capacity to manage his own affairs---[E] vidence that he was without sufficient mental capacity to perform or understand his conduct during the relevant period would meet the test.
Chapman,
Applying this definition, we find evidence supporting the trial court’s finding that Winslett was not mentally incompetent. Although Winslett had a lifelong history of significant mental illness, she had never been adjudicated or declared mentally incompetent. Two attorneys who had represented her in guilty pleas to criminal charges in 2011 and 2012 testified that, as a general matter, they would not advise a client to proceed with a guilty plea if she had appeared mentally incompetent to them. The law enforcement officer who served Winslett with the complaint in this case testified that she did not appear to him to be mentally incapacitated. A corrections officer who had interacted with Winslett in jail during a period of time
Finally, a psychiatrist testified that Winslett displayed borderline intellectual functioning in her video-recorded deposition, which the psychiatrist watched. He explained that persons with such functioning “are usually responsible for themselves, they have jobs, they marry, they don’t have guardians.” He testified that he “[didn’t] see anything that indicates that [Winslett] is functionally and mentally a minor child,” and he disputed portions of the affidavit of a psychiatrist who had treated Winslett sporadically over the years and who had averred that she was not capable of managing her affairs or understanding the need to respond to the lawsuit. Winslett argues that the trial court “erred in denying [her] Daubert challenge,” in which she argued that the psychiatrist’s testimony was inadmissible because his review of her video-recorded deposition provided an insufficient foundation for his opinion. See Daubert v. Merrill Dow Pharmaceuticals,
It was for the trial court as factfinder to assess the credibility of the conflicting evidence on Winslett’s mental competency. Savannah Cemetery Group,
3. Lack of notice as aground to set aside the default judgment.
Winslett argues that the trial court should have set aside the default judgment because she was not provided with notice of the entry of that judgment. Because the term of court in which the trial court entered the judgment had ended when Winslett moved to set it aside, the trial court was permitted to set aside the judgment only under OCGA § 9-11-60. Miranda v. Stewart,
(a) OCGA § 9-11-60 (d) (2).
OCGA § 9-11-60 (d) (2) provides that a motion “may be brought to set aside a judgment based upon ... [fjraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant[.]” Winslett argues that she is entitled to have the default judgment set aside under this subsection because Guthrie intentionally delayed notifying her about the judgment until after the end of the term of court in which the judgment was entered, despite being ordered to do so by the trial court. She argues that this delay prevented her from asking the trial court to set aside the judgment within the term of court in which it was entered, when the trial court could have set the judgment aside under its broader, inherent power rather than the more limited grounds of OCGA § 9-11-60. See Ammons v. Bolick,
But even if Guthrie took some act in prosecuting his lawsuit that could be construed as a ground for setting aside the judgment under OCGA § 9-11-60 (d) (2), “the alleged [act] is not unmixed with the negligence or fault of [Winslett] in failing to interpose a defense to [Guthrie’s] suit.” Lee,
(b) OCGA § 9-11-60 (d) (3).
OCGA § 9-11-60 (d)(3) provides that a motion “may be brought to set aside a judgment based upon ... [a] nonamendable defect which appears upon the face of the record or pleadings.” Winslett cites our decision in Moore v. Davidson,
(c) Other arguments.
In her appellate briefs, Winslett makes various other arguments for a set aside: that the default judgment was not final until Guthrie sent it to her by certified mail; that the trial court improperly relieved Guthrie of his responsibility to provide notice when the trial court denied the motion to set aside; that the default judgment awarded excessive damages; and that enforcing the default judgment was fundamentally unfair and deprived her of due process.
None of these arguments supports reversal. We cannot consider Winslett’s argument that the default judgment was not final, because she did not raise this issue in the trial court. See Nairon v. Land,
4. Lack of notice as a ground to vacate the default judgment.
Alternatively, Winslett argues that the trial court should have vacated the default judgment under OCGA § 9-11-60 (g), which permits a trial court to correct, at any time, “[cjlerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission[.]” She argues that the trial court then could reenter the default judgment, she could refile her motion to set aside within the same term of court as the reentered judgment, and the trial court could set aside the judgment on grounds other than those provided in OCGA § 9-11-60 (d). See Miranda,
We cannot agree. Guthrie’s failure to comply with the notification requirement of the trial court’s order is not the type of error that would permit the trial court to vacate the judgment under OCGA § 9-11-60 (g). Where the trial court is required to notify a party of a judgment, but fails to do so, then the trial court may vacate the
But Winslett has not shown that the trial court erred in failing to notify her of the judgment, because the trial court had no responsibility to give her such notice. Although OCGA § 15-6-21 (c) requires a judge “to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision,” it also specifies that “[s]aid notice shall not be required if such notice has been waived pursuant to subsection (a) of Code Section 9-11-5.” OCGA § 9-11-5 (a) provides that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of... entry of judgment[.]” Under these Code sections, Winslett had no right to receive notice from the trial court of the entry of the default judgment.
Cases cited by Winslett do not provide otherwise. Vangoosen, supra,
Winslett also points to the Supreme Court’s decision in Anderson v. Anderson,
Consequently, the trial court had no statutory duty to notify Winslett of the default judgment in this case. And Winslett has offered no support for the proposition that, by ordering Guthrie to provide her with a copy of the judgment, the trial court also took upon itself a duty to provide notice to Winslett. These circumstances do not implicate the rule set forth in Cambron, supra,
Judgment affirmed.