Joseph Brazell v. J. K. Boatwright & Co., P. C.

• Court: Court of Appeals of Georgia
• Decided: November 6, 2013
• Docket: A13A1113
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

November 6, 2013

In the Court of Appeals of Georgia A13A1113. BRAZELL et al. v. J. K. BOATWRIGHT & CO. P.C.

BARNES, Presiding Judge.

Joseph Brazell and Joanne Brazell appeal from the order of the trial court

entering a default judgment in favor of J. K. Boatwright and Company, P.C.

(“Boatwright”) and awarding damages of $20,265 in principal and $15,793.88 in

interest to Boatwright. On appeal, the Brazells contend that the trial court abused its

discretion in granting Boatwright’s motion for default judgment and in denying their

motion to open the default. Upon our review, we affirm.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge. The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.

(Citations and punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128

(1) (514 SE2d 884) (1999).

The case arose from Boatwright’s October 14, 2011 suit to collect monies owed

from West Georgia Collection Bureau, LLC, a purportedly administratively-dissolved

company owned by the Brazells. The Brazells’ acknowledgment of service was filed

on November 8, 2011, but the Brazells did not file their answer until December 19,

2011. In their answer, they asserted the affirmative defenses of laches and unclean

hands Boatwright filed a motion for default judgment on February 10, 2012 in which

it asserted that the Brazells were in default as of December 9, 2011, the date their

answer should have been filed pursuant to OCGA § 9-11-12 (a). It further asserted

that, although the Brazells had later filed their answer, they had not paid court costs

as required by OCGA § 9-11-55 (a) to permit opening of the default as a matter of

right, and were in absolute default. On March 12, 2012, the Brazells filed a response

2 to the motion for default judgment and a motion to open the default, in which they

alleged that Boatwright had failed to serve West Georgia Collection Bureau as a

necessary party, and that the delay in filing their answer was a result of ongoing

settlement negotiations. The Brazells also tendered the court costs at that time.

On July 11, 2012, a hearing was held on the motion. The transcript is not

included with the record, but subsequently, on August 6, 2012, the Brazells filed an

amended answer with a signed verification and a supplemental response to their

motion to open the default.. In their response, the Brazells maintained that their

verified amended answer related back to the filing of the original pleading answer to

OCGA § 9-11-15 (c), and that the failure to verify their original answer was an

amendable defect.

On August 27, 2012, the trial court entered an order denying the Brazells’

motion to open the default judgment. The trial court held that it was without

discretion to open the default because the Brazells had failed to comply with two of

the four conditions precedent set forth in OCGA § 9-11-55 (b). Specifically, the court

found that the Brazells’ “showing [was] not made under oath and the [Brazells] did

not correctly announce ready for trial.” The trial court acknowledged that the Brazells

3 had announced ready for trial in their motion to open default, but were not, in fact,

ready because they had not replied to any of the discovery requests.

On appeal, although the Brazells contend that the trial court erred in denying

their motion to open the default because, among other things, failure to verify

pleadings is an amendable defect, they had acted with reasonable promptness, and

alleged an meritorious defense, the Brazells have not demonstrated that the four

conditions precedent were complied with as provided in OCGA § 9-11-55 (b). “While

generally the opening of a default rests within the sound discretion of the trial court,

compliance with the four conditions is a condition precedent; in its absence, the trial

judge has no discretion to open the default.”(Citation and punctuation omitted.)

Roberson v. Gnann, 235 Ga. App. 112, 115 (4) (508 SE2d 480) (1998).

Pretermitting whether the trial court erred in finding that the Brazells

announcement of ready to proceed was insufficient to show their actual readiness for

trial because they had not completed discovery, the Brazells also failed to satisfy the

first condition precedent of a showing made under oath. It is undisputed that the

Brazells motion to open default was not made under oath. Moreover, although their

amended answer was verified, in it they merely claimed that “they have good and

meritorious defenses to the claims set forth in [Boatwright’s] Complaint.” A merely

4 conclusory statement cannot constitute a showing under oath pursuant to OCGA § 9-

11-55 (b). Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997); see

Ragan v. Smith, 188 Ga. App. 770, 772 (3) (374 SE2d 559) (1988) (the “showing’

required by this Code section to be made ‘under oath’ includes the showing of a

‘meritorious defense.’”)

In the absence of such a showing under oath, the trial court has no discretion

to open the default. Ga. Kidney & Hypertension Specialists v. Fresenius USA Mktg,

291 Ga. App. 429, 431 (2) (662 SE2d 245) (2008), overruled on other grounds,

Mayor &c. of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189)

(2012); compare Boggs Rural Life Center v. IOS Capital, 255 Ga. App. 847, 848 (567

SE2d 94) (2002) (appellant met the first requirement of a showing under oath by

filing the affidavit of one of its directors setting out the reasons for the default and its

meritorious defense.)

Accordingly, as the Brazells failed to meet all of the conditions precedent to

the trial court’s exercise of its discretion to open the default, the trial court did not err

in refusing to do so.

Judgment affirmed. Miller and Ray, JJ., concur.