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Rapid Taxi Co. v. Broughton6/12/2000
Ru-012
Rapid Taxi Company appeals the trial court's denial of its motion to set aside a default judgment. Because the trial court erroneously concluded that Rapid Taxi's motion was untimely, we reverse and remand.
James Broughton sued Rapid Taxi for injuries sustained in a collision involving a Rapid Taxi cab. Rapid Taxi answered, alleging that it was not liable for the acts of the driver, who was not its employee or agent. When the case came up for trial, Brougton sought a continuance on the ground that his treating physician was not available. After the trial court denied the motion for a continuance, Broughton dismissed the action without prejudice.
On March 31, 1997, Broughton re-filed his complaint against Rapid Taxi, and the matter was assigned a new case number. On April 2, 1997, the complaint and summons were served on Rapid Taxi. Rapid Taxi, however, failed to file a timely answer. On May 22, 1997, more than 45 days after the re-filing of the complaint, Broughton filed a motion for a default judgment. On May 27, 1997, the trial court granted Broughton's motion. The trial court's order, which is styled "Default Judgment," provided that "Plaintiff's motion be GRANTED and JUDGMENT be entered against the Defendant, Rapid Taxi Company, Inc., on the issue of liability." The order further provided that the case "be placed on the next available jury trial calendar for trial on the issue of damages."
On June 2, 1997, Rapid Taxi filed a motion to set aside the default pursuant to OCGA § 9-11-55 (b). It also filed a proposed answer and paid court costs. Attached to Rapid Taxi's motion was the affidavit of Larene Brown LaSonde, a paralegal in the office of Rapid Taxi's counsel. According to LaSonde, Rapid Taxi promptly forwarded the summons and re-filed complaint to counsels' office, but she inadvertently misfiled them, so counsel never saw them and did not file an answer.
The trial court denied Rapid Taxi's motion on the ground that it was untimely. According to the trial court, the motion was moot because it was filed four days after the order entering the default judgment against Rapid Taxi. The trial court did not consider the merits of the motion, and it denied Rapid Taxi's motion for reconsideration.
A trial was held on the issue of damages only, and the jury awarded $40,000 to Broughton. The trial court then entered an order directing that "judgment is awarded in favor of Plaintiff and against Defendant."
1. In its first enumeration of error, Rapid Taxi contends that the trial court erred by refusing to consider the merits of its motion to set aside the default. We agree.
Under OCGA § 9-11-55 (b),
t any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings 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.
Once a final judgment has been entered, however, this code section no longer applies, and a party seeking to set aside a default judgment must satisfy the more stringent criteria set forth in OCGA § 9-11-60. Here, the trial court apparently concluded that its May 28 "Default Judgment" entered against Rapid Taxi was a "final judgment," and that Rapid Taxi's subsequent motion was therefore untimely. But a judgment is not final unless "it disposes of the entire controversy, leaving nothing for the trial court to do in the case." The trial court's "Default Judgment" did not dispose of the entire controversy; it merely de
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