A default judgment occurs were a defendant does not timely answer a complaint filed against it. The time for filing an answer is 30 days after service of
VOLUME 25, NO. 145 JANUARY 2013
A default judgment occurs were a defendant does not timely answer a complaint filed against it. The time for filing an answer is 30 days after service of process. While the default is automatic after the 30 days, Georgia allows for a 15 day grace period, during which time default may be opened as a matter of right. After that 45 days, default can be opened only by order of the trial court.
So, what do you do if you find yourself in default and are unsuccessful in moving the court to open the default? While certainly an undesirable position to be in, it is not necessary a death sentence. A thorough analysis of the allegations of the complaint are warranted before conceding defeat, as improper pleading of the alleged causes of action may breathe new life into the defense of a case in default.
A default results in an admission by the defendant of each and every material allegation of the plaintiff’s complaint except as to the amount of damages alleged. However, the default does not automatically establish the plaintiff’s right of recovery. The default operates to admit only the well-pled factual allegations of the complaint and the fair inferences and conclusions of fact to be drawn from those allegations. A default does not result in the admission of allegations that are not well-pled or that are the result of forced inferences. A default does not preclude a defendant from showing that under the facts as deemed admitted, no claim existed which would allow the plaintiff to recover.
In Fink v. Dodd, 286 Ga. App. 363, 364, 649 S.E.2d 359 (2007), the plaintiff sued his employer for wrongful termination and libel and slander. After the defendant failed to answer the complaint, the trial court ruled that liability on the wrongful termination count was conclusively established by the default. Pertinent to the trial court’s holding was that the employer had admitted by default that the plaintiff was an employee of the defendant and that the defendant wrongfully terminated the plaintiff’s employment, causing her to suffer damages.
However, the complaint did not allege facts showing an enforceable contract of employment, an omission that led to the reversal on appeal. In reversing the judgment of the trial court, the Court of Appeals held that Georgia is an at-will employment state and, in the absence of any allegations (and corresponding default) to the contrary, the plaintiff had no reasonable expectation of continued employment to establish an actionable wrong. “Because the well-pled allegations of Dodd’s complaint failed to establish that she was anything other than an at-will employee, her complaint failed to state a claim for wrongful termination under Georgia law for which she was entitled to recover.” Id. at 366. Accordingly, the Georgia Court of Appeals reversed the trial court and held that the trial “ . . . court erred in prohibiting [the defendant] from showing that [the plaintiff] failed to state a claim for wrongful termination and in holding that [the plaintiff] had conclusively established a wrongful termination claim.” Id.
The trial court was similarly reversed in connection with the slander claim asserted in the same complaint. Fink v. Dodd, 286 Ga. App. at 368. The complaint, which stood as admitted by default, did not identify the persons to whom the allegedly slanderous statements were made – a required factual showing to establish a cause of action for slander. The defendant argued at the trial court level that it was able to challenge the merits of the claim irrespective of default because, while the allegations of the complaint were sufficient as notice pleading, they were conclusory and failed to state the necessary supporting facts with specificity. The trial court disagreed, holding that the elements of slander were conclusively established by default, and prohibited the defendant from making any showing to the contrary. The Court of Appeals held it was reversible error to disallow the defendant’s efforts to establish that the complaint failed to state a claim for slander because the plaintiff did not plead facts from which a jury might reasonably infer the elements of the cause of action. Id. at 367-68.
Thus, there is hope for the defaulting defendant. Look carefully at the complaint. Have all elements of the cause of action been pled? Have factual allegations been asserted and admitted by default that are sufficient to sustain the judgment? If not, there may be a light at the end of the default tunnel.