FIFTH DIVISION

PHIPPS, P. J.,

DILLARD and PETERSON, 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 18, 2016

In the Court of Appeals of Georgia

A16A2161. CENTRAL MUTUAL INSURANCE COMPANY. v.

KICKLIGHTER et al. 

PETERSON, Judge.

Leslie and Kathy Kicklighter’s house burned down. Central Mutual Insurance

Company, with whom they had a homeowners’ insurance policy, paid them several

hundred thousand dollars under the policy. The Kicklighters contended they were

owed still more; when Central Mutual did not pay, the Kicklighterssued them for bad

faith. Central Mutual responded to the lawsuit by filing a motion to dismiss, but not

an answer. So far, so good for the Kicklighters. But then the Kicklighters’ counsel

obtained an ex parte default judgment against Central Mutual, and then intentionally

withheld the judgment from Central Mutual until the time to appeal or file a motion

to reconsider had run. We cannot allow conduct of this sort to stand, and so we
reverse the order of the trial court denying Central Mutual’s understandably belated

motion to set aside.

We review a trial court’s refusal to set aside a default judgment for an abuse

of discretion, but review questions of law de novo. See Hutcheson v. Elizabeth

Brennan Antiques & Interiors, Inc., 317 Ga. App. 123, 125 (730 SE2d 514) (2012).

The record evidence, which is largely undisputed, shows that on October 16,

2015, the Kicklighters filed suit against Central Mutual after it allegedly refused to

provide full coverage for a fire loss under the Kicklighters’ homeowners’ insurance

policy. The Kicklighters sought to recover the additional amounts allegedly owed

under the policy, attorneys’ fees, and bad faith damages. On November 20, Central

Mutual filed a motion to dismiss the complaint, asserting that it made a partial

payment of $441,000 under the policy and denying that it acted in bad faith in

refusing to pay the entirety of the Kicklighters’ fire loss claim because coverage

issues remained unsettled and the Kicklighters never made any demand for immediate

payment of the entire policy limits. 

On December 16, 2015, the trial court held a meeting with the Kicklighters’

counsel and signed an order entering a default judgment of $124,660 plus interest for

the Kicklighters. Central Mutual was not given notice of the hearing and therefore did

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not attend. In its default judgment order, the trial court ruled that Central Mutual’s

motion to dismiss could not be construed as an answer, Central Mutual wastherefore

in default, and Central Mutual failed to open the default. 

The trial court did not provide a copy of the default judgment to Central

Mutual, and despite intervening communications with Central Mutual, the

Kicklighters’ counsel made no mention of it either. Instead, the Kicklighters’ counsel

deliberately withheld the default judgment from Central Mutual until February 1,

2016, when the Kicklighters made a demand of payment of the judgment. By this

time, the 30-day period for filing a notice of appeal from the order had expired and

the term of the court had ended. OCGA § 15-6-3(30)(A) (the court terms for the

Superior Court of Bulloch County begin on the first Mondays in February, May,

August, and November). At oral argument, the Kicklighters’ counsel acknowledged

that he delayed notice, at least in part, for the purpose of ensuring that Central Mutual

could not appeal.

Soon after receiving notice of the default judgment, Central Mutual moved to

set aside the judgment. Central Mutual argued that the judgment should be set aside

because its motion to dismiss was a responsive pleading that could be construed as

an answer so as to preclude default; the entry of default judgment was improper

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where a dispositive motion is pending; it was not given notice that the court would

enter a default judgment; and the Kicklighters’ counsel acted in bad faith in failing

to provide prompt notice of the default judgment. The trial court held a hearing on

Central Mutual’s motion to set aside, during which the following colloquy occurred

between the trial court and the Kicklighters’ counsel (John B. Manly and Bobby T.

Jones):

Court: Do you recall when we had the meeting in the — in the law

library and I did — I signed the order. Do you remember what I told

you? I told you to make sure that the opposing side got a copy.

Manly: That’s correct.

Court: I did say that. Correct?

Manly: I don’t remember exactly, but it doesn’t surprise me.

Court: I did. I did.

Manly: And we served a copy, Your Honor, in accordance with —

Court: Yes. When did you serve a copy?

Manly: I believe the date was February 1st or 2nd.

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Court: And when did I sign the order?

Manly: I think it was December 17th, if I recall. 

Court: And why did you wait that long?

Manly: Because of the term of court and because this case Winslet v.

Guthrie[, 326 Ga. App. 747 (755 SE2d 287) (2014),] allows us to wait

until the new term of court because of his failure to file an answer and

his negligence in not filing an answer absolves our responsibility of

having to serve him with that. 

. . .

Court: [T]he only thing that bothers me is I specifically told you folks

to make sure they got a copy and I think that somewhat — if the case

says that, the case says that. But it was my clear impression that I had

informed you to give them notice and my impression or my belief was

that the notice would be forthcoming and not delayed. Okay.

Manley: Yes, sir.

Jones: May I address that?

Court: Why?

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Jones: Because, Judge, I’ve been before you decades now . . . As you

know, I’ve known you almost forty years. 

Court: We have.

Jones: I can assure you, Judge, and I think my experience will bear this

out, if you had told us and if you did tell us, I’m not denying what you

said. I don’t recall it, but if — we have never, and I personally in my

dealings with this Court and all other courts, have never not done as

instructed by a court even when I disagreed with it. So I want you to

understand that I didn’t —

Court: Oh, I didn’t say today. I didn’t say tomorrow. I just said give

them notice.

Jones: I understand. And we did, Judge, but whatever you told us I

promise you I did my best and always will, including today, comply with

the Court’s directions and instructions. I just don’t want the Court

having any belief of anything otherwise.

Court: That’s fine.

Jones: And, I mean, my reputation with the Court is more important than

any one single case. Whatever the Court — the Court has the authority

to rule and it’s the (inaudible) of the lawyers and parties to comply with

the Court’s rulings and I just want you to understand that that’s always

been my position and is today and will always be. Following the

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hearing, the trial court denied the motion without explanation, and we

granted Central Mutual’s application for discretionary review. 

On appeal, Central Mutual argues that the trial court erred in denying its

motion to set aside the default judgment because Central Mutual filed a motion to

dismiss that the court should have construed as an answer, the court held an ex parte

hearing when denying the motion to dismiss and granting default judgment to the

Kicklighters, and plaintiffs’ counsel deliberately delayed providing Central Mutual

notice of the order granting default judgment until the time frame for filing a notice

of appeal had expired and the term of the court had ended. We agree that (1) Central

Mutual was entitled to notice that the court would hold a hearing in which it would

consider whether Central Mutual’s motion to dismiss constituted an answer, and (2)

that the court erred in entering default judgment without first disposing of Central

Mutual’s pending motion. Therefore, we reverse the denial of its motion to set aside

the default judgment.

A motion to set aside may be brought on several grounds, including when a

nonamendable defect appears on the face of the record or pleadings. OCGA § 9-11-

60(d)(3). “In cases involving a default judgment, this type of defect arises where the

record shows on its face that the default was entered on an improper basis.” Hiner

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Transp., Inc. v. Jeter, 293 Ga. App. 704, 705 (667 SE2d 919) (2008) (citing Shields

v. Gish, 280 Ga. 556, 558 (2) (629 SE2d 244) (2006)) (punctuation omitted). The

record shows that the trial court entered the default on an improper basis and,

therefore, should have granted Central Mutual’s motion to set aside.

“[U]nder the [Civil Practice Act] a party is to be given notice and the

opportunity to amend defective pleadings where such notice will facilitate [a]

decision on the merits. The [Civil Practice Act] does not penalize a party irrevocably

for one misstep in pleading.” McDonough Constr. Co. v. McLendon Elec. Co., 242

Ga. 510, 515 (250 SE2d 424) (1978). If the defendant timely files a document

responding to the complaint that could be construed as an answer, a trial court may

not hold an ex parte hearing disposing of the filing; it must provide notice to the

defendant that the court will rule on the sufficiency of its filing as an answer. See

Brown v. Brown, 217 Ga. App. 245, 246-47 (457 SE2d 215) (1995) (regardless of

whether defendant’sletter wassufficient as an answer, it was properly before the trial

court and could not be disposed of in an ex parte proceeding without notice thereof

to the defendant); cf. Livesay v. King, 129 Ga. App. 751, 751 (201 SE2d 178) (1973)

(“The rule of fair play suggests at the outset that one who moves the court to change

the status of a pending matter . . . should serve the opposite party with a copy of the

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motion and of a rule nisi which the court should enter thereon, thus affording to the

opposite party a fair opportunity to object or to defend against the proposed action.”).

And it is reversible error for the trial court to enter default judgment where a

dispositive motion is pending. See US Professionals, LLC v. Directlink India (P) Ltd.,

247 Ga. App. 679, 680 (1) (545 SE2d 95) (2001) (although defendant failed to appear

for trial, it was error to enter judgment against the defendant when the court failed to

dispose of the defendant’s motion to dismiss for improper venue); Williams v. CocaCola Co., 158 Ga. App. 139, 140 (2) (279 SE2d 261) (1981) (it is harmful error to

enter default judgment without ruling on a motion to dismiss or, alternatively, a

motion for summary judgment that was filed within the time permitted to file an

answer). 

Here, the trial court held an ex parte hearing with the Kicklighters’ counsel in

a law library before signing the default judgment order in which it deemed Central

Mutual’s motion to dismiss an insufficient answer. The failure to give Central Mutual

notice that the issue of the sufficiency of the answer would be heard requiresthe grant

of Central Mutual’s motion to be set aside. See Brown, 217 Ga. App. at 247.

Moreover, Central Mutual provided evidence outside of the pleadings in support of

its motion to dismiss to argue that it was entitled to a judgment on the merits. This

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was a dispositive motion that the trial court wasrequired to dispose of before entering

default judgment, and it committed reversible error in failing to do so. See US

Professionals, 247 Ga. App. at 680 (1); Williams, 158 Ga. App. at 140 (2). Because

we reverse on these grounds, it is unnecessary to consider Central Mutual’s

arguments that the trial court should have set aside the default judgment because

Central Mutual’s motion to dismiss constituted an answer, or because the

Kicklighters’ counsel intentionally withheld providing notice of the judgment to

prejudice Central Mutual.

1

 Accordingly, we reverse. 

Judgment reversed. Phipps, P. J., and Dillard, J., concur.

1 We note, however, that the Kicklighters’ counselmisconstrued Winslett when

arguing at the motion to set aside hearing that there was no duty to inform Central

Mutual of the default judgment. In Winslett, we concluded that the trial court had no

responsibility to give notice of a default judgment when the defendant waived the

right to receive future notices, like the entry of the default judgment, by failing to file

any pleadings. 326 Ga. App. at 751-52 (4) (citing OCGA § 9-11-5(a)). Here, Central

Mutual filed a motion to dismiss, and so Winslett does not apply.

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