STOUT v. SIGNATE HOLDING, INC.

Court of Appeals of Georgia1987-09-10No. 74565

184 Ga. App. 154361 S.E.2d 36

Summary · law.co

Holding. The trial court properly entered a default judgment and denied Stout's motion to dismiss because Stout failed to pay costs within the statutory 15-day period required to reopen a default as a matter of right, never requested discretionary reopening, and thereby waived his jurisdictional challenge. The judgment is affirmed.

Signate Printing sued Stout in Georgia state court for an unpaid debt and served him under the long-arm statute. Stout, a California resident, filed a pro se motion to dismiss within the required timeframe but did not pay the costs associated with reopening the default until more than four months later. The trial court entered a default judgment against Stout and denied his motion to dismiss. On appeal, Stout argued that his motion to dismiss should have been treated as an answer that automatically reopened the default, and that the trial court should have exercised discretion to reopen the default based on excusable neglect.

The court rejected Stout's arguments. The statute allowing a default to be reopened as a matter of right requires that costs be paid within 15 days of the default; Stout's delayed payment did not satisfy this condition. Additionally, Stout never filed a written or oral motion requesting that the trial court exercise its discretion to reopen the default under the alternative provision, so the trial court could not have abused its discretion by failing to act on a request never made. By defaulting, Stout also waived his right to challenge the trial court's personal jurisdiction over him.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether payment of costs more than 15 days after default satisfies the statutory requirement to reopen default as a matter of right
Whether a motion to dismiss filed within 30 days constitutes an answer that reopens a default
Whether a trial court abuses its discretion by failing to reopen a default when no motion requesting such relief was made
Whether a defaulting defendant waives the right to challenge personal jurisdiction

Procedural posture

Signate obtained a default judgment against Stout in Fulton County Superior Court after Stout's pro se motion to dismiss and delayed cost payment; Stout appealed the entry of default and denial of his motion to dismiss.

Authorities cited

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Opinion · public domain

majority opinion

Benham, Judge.

Appellee, Signate Holding, Inc., d/b/a Signate Printing (“Signate”), sued appellant in Fulton County on June 11, 1986, for an indebtedness. Appellant, a resident of California, was served under the long-arm statute (OCGA § 9-10-90 et seq.) on July 17, 1986. In response to the complaint, appellant filed a pro se motion to dismiss on August 26, 1986, challenging the court’s jurisdiction over his person. On September 22, 1986, Signate moved for entry of default judgment against appellant pursuant to OCGA § 9-11-55. Appellant paid the accrued costs on January 5, 1987, and the trial court granted Signate’s motion and denied appellant’s motion to dismiss on January 7, 1987. Appellant, through counsel, filed this appeal. We affirm.

1. In his first two enumerations of error, appellant asserts that the trial court should have treated his motion to dismiss as an answer and contends that he was entitled to have default opened as a matter of right, since his motion was filed within the 15-day period provided for in OCGA § 9-11-55 (a) and he paid the appropriate costs before the trial court granted Signate’s default judgment motion. We disagree. OCGA § 9-11-55 (a), on which appellant relies, states: “If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs. If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to ver diet and judgment by default, in open court or in chambers . . Even if we were to assume that appellant’s motion to dismiss constituted an answer, appellant’s payment of the costs to reopen more than four months after filing his motion to dismiss did not comply with the statutory requirement that costs be paid “within 15 days of the day of default.” Full payment of costs within the 15-day grace period being a condition precedent to opening a default, the filing of appellant’s answer alone would not open the default as a matter of right. Hazzard v. Phillips, 249 Ga. 24 (1) (287 SE2d 191) (1982). Appellant’s contention that costs need only be paid prior to the grant of a motion to open default applies to OCGA § 9-11-55 (b), under which the decision to open default is discretionary with the trial court. See Copeland v. Carter, 247 Ga. 542 (1) (277 SE2d 500) (1981).

Decided September 10, 1987.

W. Jeffrey Langley, Michael S. Huff, for appellant.

Richard C. Silver, for appellee.

2. In his third enumeration of error, appellant argues that the default should have been opened under OCGA § 9-11-55 (b), since he allegedly demonstrated excusable neglect, a proper case, and the timely payment of costs. For a trial court to exercise its discretion to grant the opening of default under OCGA § 9-11-55 (b), “there must be a motion, meritorious defense, a legal excuse for late filing, and payment of costs.” Gowdey v. Rem Assoc., 176 Ga. App. 83 (3) (335 SE2d 309) (1985). (Emphasis supplied.) We find nothing in the record that indicates appellant ever made a written or oral motion to open default. We cannot say that the trial court abused its discretion by failing to do something it was never asked to do.

3. Appellant’s last enumeration is that the trial court erred in denying his motion to dismiss. We find no error in the trial court’s action. As discussed in Division 1, appellant’s motion did not serve as a default-opening pleading. Furthermore, appellant’s motion was not a timely motion to dismiss since it was filed after the expiration of the 30-day period established by OCGA § 9-11-12 (b). By being in default, appellant waived his right to contest the trial court’s jurisdiction over his person. OCGA § 9-11-12.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.