Cert Petitions: May 20

The Court granted just one cert petition today, Bowen et al. v. Savoy et al., S19C0278, asking whether a defendant seeking to open default under OCGA 9-11-55(b) must provide a reasonable explanation for his failure to file an answer.

OCGA 9-11-55 lays out the mechanisms by which a defendant can seek relief from default. Under 55(a), a defendant may open default as a matter of right within 15 days of entering default. After those 15 days have elapsed, the plaintiff can ask the court to enter judgement on the default ("default judgement"). At issue in Bowen is 55(b), which provides that at any time before the entry of final judgement, the defendant may petition to the court to open default for "providential cause," "excusable neglect," or other "proper case." See id.

Writing for the Court of Appeals below, then-Judge Bethel held that a trial court did not abuse its discretion in declining to open default without an adequate explanation of the failure to file an answer. In so holding, the Court of Appeals relied on a 2008 case authored by then-Judge Ellington which found a trial court did abuse its discretion in opening default under the "proper case" prong without an adequate explanation of the failure to answer. In that case, Judge Ellington wrote that the purpose of the "proper case" prong of 55(b) "is to permit the reaching out in every conceivable case where injustice might result if the default were not opened. Whatever that injustice might be, it may be avoided and the default opened under the ‘proper case’ analysis only where a reasonable explanation for the failure to timely answer exists. Requiring a reasonable excuse or explanation for opening the default on this ground is necessary, otherwise the trial court would not be acting within its discretion as required by OCGA § 9-11-55 (b)." See BellSouth Telecomm., Inc. v. Future Commc’n, Inc., 293 Ga. App. 247, 250 (2) (666 SE2d 699) (2008).

The case will be added to the September 2019 Oral Argument Calendar.



Denied Petitions

S19C0321. COOK V. DUENAS (A18A1114)
S19C0328. CITY OF CONYERS V. WILKINS et al. (A18A1400)
S19C0150. BRINKER V. THE STATE (A19I0008)
S19C0260. EDOKPOLOR et al. V. GRADY MEMORIAL HOSPITAL CORPORATION (A16A1031)
S19C0268. WILLIAMS V. MONSIEUR, INC. et al. (A18A1127)
S19C0286. HARRELL V. THE STATE (A19A0165)
S19C0299. MOSS V. THE STATE (A18A0976)
S19C0303. SHERWOOD et al. V. WILLIAMS et al. (A18A1338)
S19C0325. CORDASCO & COMPANY, P.C. V. RAHAL (A18A1364)
S19C0358. WILLIAM et al. V. MORRIS et al. (A18A0810)