308 Ga. 204 FINAL COPY
S19G0278. BOWEN et al. v. SAVOY et al.
BENHAM, Justice.1
We granted certiorari in this case to address the following
question: To show a proper case for opening default under OCGA § 9-
11-55 (b), must the defendant provide a reasonable explanation for
the failure to file a timely answer? For the reasons that follow, we
answer that question in the negative and therefore reverse the
judgment of the Court of Appeals in Bowen v. Savoy, 347 Ga. App.
XXV (A18A1001) (Sept. 25, 2018) (unpublished) and remand this
case for consideration consistent with this decision.
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
1 I am privileged and honored to have served the people of the State of
Georgia for more than 35 years on both this Court and the Court of Appeals. 2 A third sister, Suzanne Douglas, was also named as a defendant;
however, the complaint against Douglas was dismissed for lack of personal jurisdiction. 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 OCGA § 9-11-12 (a), the
case “automatically [became] in default,” OCGA § 9-11-55 (a).
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.
2 Counsel explained that, based upon his good faith
(mis)understanding that the Civil Practice Act “allow[s] for
Defendants who contend the [trial court] lacks jurisdiction the
option to file a Motion to Dismiss as opposed to an answer,” he
delayed filing the defendants’ answer until the trial court ruled on
the motion to dismiss.
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 OCGA § 9-11-55 (b). It is that conclusion
3 we address today, and, in doing so, we must consider the proper
construction of OCGA § 9-11-55 (b).
“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 OCGA § 9-11-55 (the “Default Judgment
Statute”). A default may be opened “as a matter of right within 15
days of the day of default.” OCGA § 9-11-55 (a). In anticipation of
those situations which might warrant the opening of default beyond
that timeframe, the Default Judgment Statute also provides, in
pertinent part:
At any time before final judgment, the court, in its
4 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.) OCGA § 9-11-55 (b). From the use of the
disjunctive “or,” it is clear that the statute establishes three distinct
grounds upon which default may be opened — providential cause,
excusable neglect, or proper case. See Karan, Inc. v. Auto-Owners
Ins. Co., 280 Ga. 545, 547 (629 SE2d 260) (2006).3
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
3 OCGA § 9-11-55 (b) further establishes four conditions with which a
defendant must comply in order for a default to be opened: “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 shall announce ready to proceed with the trial.” See Karan, 280 Ga. at 547 (“Compliance with the four conditions is a condition precedent and once met the question of whether to open the default on one of the three grounds rests within the sound discretion of the trial court.”). 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. 5 “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
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308 Ga. 204 FINAL COPY
S19G0278. BOWEN et al. v. SAVOY et al.
BENHAM, Justice.1
We granted certiorari in this case to address the following
question: To show a proper case for opening default under OCGA § 9-
11-55 (b), must the defendant provide a reasonable explanation for
the failure to file a timely answer? For the reasons that follow, we
answer that question in the negative and therefore reverse the
judgment of the Court of Appeals in Bowen v. Savoy, 347 Ga. App.
XXV (A18A1001) (Sept. 25, 2018) (unpublished) and remand this
case for consideration consistent with this decision.
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
1 I am privileged and honored to have served the people of the State of
Georgia for more than 35 years on both this Court and the Court of Appeals. 2 A third sister, Suzanne Douglas, was also named as a defendant;
however, the complaint against Douglas was dismissed for lack of personal jurisdiction. 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 OCGA § 9-11-12 (a), the
case “automatically [became] in default,” OCGA § 9-11-55 (a).
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.
2 Counsel explained that, based upon his good faith
(mis)understanding that the Civil Practice Act “allow[s] for
Defendants who contend the [trial court] lacks jurisdiction the
option to file a Motion to Dismiss as opposed to an answer,” he
delayed filing the defendants’ answer until the trial court ruled on
the motion to dismiss.
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 OCGA § 9-11-55 (b). It is that conclusion
3 we address today, and, in doing so, we must consider the proper
construction of OCGA § 9-11-55 (b).
“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 OCGA § 9-11-55 (the “Default Judgment
Statute”). A default may be opened “as a matter of right within 15
days of the day of default.” OCGA § 9-11-55 (a). In anticipation of
those situations which might warrant the opening of default beyond
that timeframe, the Default Judgment Statute also provides, in
pertinent part:
At any time before final judgment, the court, in its
4 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.) OCGA § 9-11-55 (b). From the use of the
disjunctive “or,” it is clear that the statute establishes three distinct
grounds upon which default may be opened — providential cause,
excusable neglect, or proper case. See Karan, Inc. v. Auto-Owners
Ins. Co., 280 Ga. 545, 547 (629 SE2d 260) (2006).3
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
3 OCGA § 9-11-55 (b) further establishes four conditions with which a
defendant must comply in order for a default to be opened: “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 shall announce ready to proceed with the trial.” See Karan, 280 Ga. at 547 (“Compliance with the four conditions is a condition precedent and once met the question of whether to open the default on one of the three grounds rests within the sound discretion of the trial court.”). 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. 5 “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” is a term of art, and its usage
is confined almost exclusively to this state. By 1895,4 the phrase had
4 The Default Judgment Statute was enacted in 1895 and has remained
largely unaltered since that time. See Ga. Code of 1895, § 5072. The 1895 statute provided as follows: 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
6 been part of Georgia law for the better part of the nineteenth
century,5 and its meaning was well settled by this Court. “When the
legislature uses such a term of art, it presumably adopts the
longstanding interpretation of that term unless it says otherwise.”
Hourin v. State, 301 Ga. 835, 839 (2) (a) (804 SE2d 388) (2017). Our
precedent indicates that providential cause generally encompasses
events over which a party or his attorney had no control, including
the illness of a party, see Phillips v. Taber, 83 Ga. 565, 571-572 (10
SE 270) (1889), or his lead counsel, Printup v. Mitchell, 19 Ga. 586,
588 (1856); the death of a party, see Dougherty v. Fogle, 48 Ga. 615,
618 (1873); the absence of counsel due to military service, see Dalton
City Co. v. Dalton Mfg. Co., 33 Ga. 243, 249 (1862); and acts of God,
see Carhart & Ross & Co. v. Jno. B. Ross & Co., 15 Ga. 186, 188
open a default beyond the trial term to “any time before final judgment.” See Ga. L. 1946, pp. 761, 778. 5 An 1835 amendment to the Constitution of 1798 provided for the
formation of and established certain procedural rules for this Court. In pertinent part, the amendment provided that where “the plaintiff in error in any such case shall not be prepared at such first term of said court after error brought to prosecute the same, unless precluded by some providential cause from such prosecution, it shall be stricken from the docket, and the judgment below shall stand affirmed.” (Emphasis supplied.) Ga. Const. of 1798, Amend. X (adopted Dec. 22, 1835). 7 (1854) (“Will not even the act of God, sickness, high-waters, or any
other Providential cause, protect [a garnishee] from this [financial
penalty]?”). Providential cause generally does not embrace those
circumstances that could have been avoided by the defaulting
party’s exercise of due diligence. See Ex parte Bradley, 63 Ga. 566,
567-568 (1879); Smith v. Brand, 44 Ga. 588, 591 (1872).
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
6 This term does not find its roots in this state. The phrase was apparently borrowed from similar statutes concerning the opening of defaults in force in other states during the nineteenth century. See, e.g., Sullivan v. Shell, 15 SE 722, 723 (S.C. 1892) (explaining that state law permits a trial court to relieve a party from judgment “taken against him ‘through his mistake, inadvertence, surprise, or excusable neglect’”); Powell v. Weith, 68 N.C. 342, 343 (1873); Harlan v. Smith, 6 Cal. 173, 174 (1856). 8 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 that the proper case ground is the broadest of
the three, see Cardinal Robotics v. Moody, 287 Ga. 18, 21 (694 SE2d
9 346) (2010), and permits “the reaching out to take in every
conceivable case where injustice might result if the default were not
opened,” Axelroad v. Preston, 232 Ga. 836, 837 (209 SE2d 178)
(1974). In BellSouth Telecomms. v. Future Comms., 293 Ga. App.
247, 250 (2) (666 SE2d 699) (2008), however, the Court of Appeals,
while recognizing the expansive scope of the proper case ground,
held that a default may be opened under that ground “only where a
reasonable explanation for the failure to timely answer exists.” In
reaching this conclusion, the BellSouth court relied on a line of cases
seemingly derived from a misreading of Brucker, where this Court
said that “a judge [has] no authority to open a default . . . for reasons
which fall short of a reasonable excuse for the negligent failure to
answer.” Brucker, 115 Ga. at 96. However, considered in its original
context and in conjunction with the statutory language, Brucker’s
requirement of a “reasonable excuse” is dispositive only in the
excusable neglect context. See Houston v. Lowes of Savannah, Inc.,
235 Ga. 201, 202 n.2 (219 SE2d 115) (1975). Brucker’s
decontextualized language has unfortunately resulted in the
10 emergence of a tangle of competing, and frequently conflicting,
standards for the opening of default under the proper case ground,
both in BellSouth and in earlier decisions of the Court of Appeals.
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.) OCGA § 9-11-55 (b). The statute omits reference to any
specific fact that a trial court must consider. Requiring a “reasonable
excuse” to open default under the proper case ground is thus
unsupported by the statutory language and, further, would render
the proper case ground “mere surplusage” by subsuming that
ground into the excusable neglect ground.
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
11 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.
12 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
7 We accordingly disapprove of any decision of the Court of Appeals to
the extent that it can be read to require a reasonable excuse or explanation in order to open default under the proper case ground. See, e.g., BellSouth, 293 Ga. App. at 250 (2); Hernandez v. Schumacher Group Healthcare Consulting, 352 Ga. App. 838, 847-848 (835 SE2d 787) (2019); Summerville v. Innovative Images, 349 Ga. App. 592 (2) (b) (826 SE2d 391) (2019); Samadi v. Fed. Home Loan Mtg. Corp., 344 Ga. App. 111 (1) (b) (809 SE2d 69) (2017); In re Estate of Loyd, 328 Ga. App. 287 (3) (761 SE2d 833) (2014); Sierra-Corral Homes v. Pourreza, 308 Ga. App. 543 (1) (708 SE2d 17) (2011); Herring v. Harvey, 300 Ga. App. 560 (1) (685 SE2d 460) (2009); NorthPoint Group Holdings v. Morris, 300 Ga. App. 491 (1) (685 SE2d 436) (2009); Vibratech, Inc. v. Frost, 291 Ga. App. 133 (2) (661 SE2d 185) (2008); Sidwell v. Sidwell, 237 Ga. App. 716 (1) (515 SE2d 634) (1999); Tauber v. Community Centers Two, 235 Ga. App. 705
13 of Appeals’ judgment and remand this case for the Court of Appeals
to revisit its analysis consistent with this decision.8
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.
(3) (509 SE2d 662) (1998); First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99 (2) (400 SE2d 393) (1990); Early Co. v. Bristol Steel & Iron Works, 131 Ga. App. 775 (206 SE2d 612) (1974). 8 It has been a great day at the State.