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By: Janeen Smith
The risk posed by failing to timely file an answer in Georgia keeps defense counsel up at night. While no defendant nor defense counsel intends to cause a case to be in default, things happen. The Georgia Supreme Court’s recent clarification of the “proper case” justification for opening default in Bowen v. Savoy, provides defense counsel with a more forgiving framework to undo the effects of an untimely answer. 308 Ga. 204, 204 (2020).
A. Getting into default.
In a nutshell, a defendant has 30 days to file a responsive pleading after service, a 15-day grace period after that, and then things become dicey. O.C.G.A. § 9-11-12; § 9-11-55. The consequence of failing to answer within 45 days is that “every item and paragraph of the complaint or other original pleading were supported by proper evidence. O.C.G.A. § 9-11-55(a). Georgia case law clarifies that the plaintiff is not entitled to “an admission of allegations that are not well-pled or those that result from forced inferences.” Fink v. Dodd, 286 Ga. App. 363, 363 (2007). Nevertheless, the effect of default imposed by failing to timely answer can devastate a good defense strategy.
B. Getting out of default generally.
Once in a 45+ day default, a defendant must provide the trial court with at least one of three bases to open default: (1) providential cause preventing the filing of an answer; (2) excusable neglect; or, (3) “proper case” justification. O.C.G.A. § 9-11-55(b). “Providential cause” refers to a situation “over which a party or his attorney had no control, including the illness of a party.” Bowen, 308 at 207. “Excusable neglect,” as the term of art suggests, occurs when “there is a reasonable excuse for failing to answer.” Id. at 207. The Court does not find the following acts to constitute “excusable neglect”: an improper calendaring of a response date, disruption of mail, or misunderstanding of the rules. Id. at 207-208. “Proper case” justification is the broadest of the three grounds and permits “the reaching out in every conceivable case where injustice might result if the default were not opened.” Axelroad v. Preston, 232 Ga. 836, 837 (1974).
C. The effect of Bellsouth Telecomms, Inc. on the “proper grounds” basis for opening default.
Until recently, the “excusable neglect” and “proper grounds” justifications for opening default began to blend together due largely to a late 2000s Georgia Court of Appeals decision, BellSouth Telecomms, Inc. v. Future Commuc’ns, Inc., 293 Ga. App. 247 (2008), and its progeny. In BellSouth Telecomms, Inc., the Court of Appeals noted no definition of a “proper case” existed. Relying on a misreading in prior cases of a 1902 case, Brucker v. O’Connonr, 115 Ga. 95 (1902), the Court of Appeals reasoned that “[w]hatever 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.” (emphasis in original).
At least five cases following BellSouth Telecomms required a showing of an “excuse” accompanying proper grounds justification arguments. See Northpoint Group Holdings, LLC v. Morris, 300 Ga. App. 491, 494 (2009); Samadi v. Fed. Home Loan Mortg. Corp., 344 Ga. App. 111, 117-118 (2017); Sierra-Coral Homes, LLC v. Pourreza, 308 Ga. App. 543, 545, fns. 5-6 (2011); Herring v. Harvey, 300 Ga. App. 560, 561-562, fn. 8-9 (2019). Several of these cases show the Court of Appeals placing more value on whether the explanation of the default was “reasonable” without proceeding to the question of whether opening default would avoid injustice. As such, a “proper case” argument had to morph into an “excusable neglect” argument to result in an opening of default.
D. The effect of Bowen on the “proper grounds” basis for opening default.
The edge of Georgia’s draconian default rules may have been dulled by Bowen v. Savoy, 208 Ga. 204 (2020) and its progeny. In Bowen, the Supreme Court reasoned “decontextualized language has unfortunately resulted in the 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.” Id. at. 208. The Supreme Court, therefore, overruled BellSouth and 10 other cases appearing to require a reasonable excuse or explanation to open default under the “proper case” ground.
Instead, the Supreme Court noted that “proper case decisions generally reflect that the defendant’s failure to file a timely answer must not have resulted from willful or gross negligence, that the statute ‘conveys very broad powers’ to open default, and that the [proper case] ‘provision should be liberally applied.’” Bowen at 209 (citations omitted). Therefore, the “proper case” standard appears applicable with consideration of all cases “where injustice might result if the default were not opened.” Nelson v. Bd. of Regents of Univ. Sys. of Ga., 307 Ga. App. 220, 223(1) (2010) (citation omitted). This outcome shifts the focus back to the big picture of the case rather than the actions of the party who got the case in default.
E. Post-Bowen developments and additional considerations.
Bowen unambiguously provides that a reasonable excuse is not required to open a default under the “proper cases” basis. Defendants are routinely relying on Bowen in motions to open default and we are aware of multiple successful outcomes. Once a case is in default, acting promptly improves the likelihood of prevailing on proper case grounds. While this case removes a barrier for defendants, opening default after the 45-day mark is inevitably fact-intensive and this case does not mean a bad outcome is impossible. It goes without being said, avoid default at all costs, but, if it happens, Bowen v. Savoy provides strong support for opening default when a mistake happens.