Franklin v. Eaves

337 Ga.App. 292

787 S.E.2d 265

Franklin

v.Eaves.

A16A0616

Court of Appeals of Georgia.

June 3, 2016

Torin D. Togut, Atlanta, for Appellant.

Lanna Renee Hill, Atlanta, Kristen Boyd Williams, Marietta, Kaye Woodard Burwell, Alfred Jonathan Jackson, for Appellee.

Peterson, Judge.

Dedrain E. Frankin brought a lawsuit under the Georgia Whistleblower Act against defendant John E. Eaves in his official capacity as chairman of the Fulton County Board of Commissioners (“the County”). She appeals from the trial court's orders granting the County's motion to open default and granting the County's motion for summary judgment. We agree with the County that the trial court did not abuse its discretion in granting the motion to open default and affirm the trial court's ruling on that motion. But because there are genuine disputes of material fact preventing summary judgment for the County on the ground that Franklin did not timely file her suit, we reverse the trial court's grant of summary judgment.

1. Franklin first argues that the trial court erred in granting the County's motion to open default. We disagree.

On October 11, 2013, Franklin filed her lawsuit in the Fulton County Superior Court against the County's manager, alleging claims under the Georgia Whistleblower Act, OCGA § 45–1–4, as well as provisions of the federal and state Constitutions. On November 18, 2013, she filed an amended complaint, substituting Eaves in his official capacity as the defendant and alleging claims under only OCGA § 45–1–4 and the free speech protections of the Georgia Constitution. Nine days later, the County's manager filed a notice of removal in federal court, referencing only the original complaint. With the County manager's consent, the federal district court on January 3, 2014, issued an order remanding the case to state court.

There was, however, some delay in docketing that order in state court. After inquiries from Franklin's counsel, the order appeared on the Fulton County Superior Court docket as having been docketed on March 14, 2014. The County filed answers to Franklin's complaint and amended complaint on March 25, 2014. Implicitly recognizing that its answer was tardy, the County filed a motion to open default, accompanied by an affidavit by its counsel. Counsel averred that, after the federal court issued its remand order, her office checked the status of the case on the state court docket on a daily basis. She did not learn until March 25, 2014, however, that the remand order had been docketed in state court, and even then “the status of the case remained closed” until her office contacted the state court. The County took the position that it was entitled to open default because it had filed its answer and paid costs within the 15–day grace period afforded by OCGA § 9–11–55(a), or, alternatively, the trial court should exercise its discretion to open default pursuant to OCGA § 9–11–55(b). In opposing the motion, Franklin moved for a default judgment and argued that the County's thirty days for filing an answer began to run upon service of the complaint on November 4, 2013, and that the County had only seven days left once the federal court remanded the case on January 3, 2014, making the motion to open default 62 days late, even considering the grace period.

While the motion to open default was pending, the County filed a motion for summary judgment. The trial court granted the motion to open default and denied the motion for a default judgment without elaboration, but also denied the County's motion for summary judgment. The trial court later granted summary judgment to the County after it moved for reconsideration.

A trial court's decision to open a prejudgment default under OCGA § 9–11–55(b) is reviewed for an abuse of discretion as long as certain prerequisites are met. Brazell v. J.K. Boatwright & Co., P.C. , 324 Ga.App. 502, 502, 751 S.E.2d 133 (2013). After the 15–day grace period for opening default as a matter of right under OCGA § 9–11–55(a), a trial court has no discretion to open default unless the defendant's showing for opening the default meets four conditions: it must (1) be made under oath, (2) offer to plead instanter, (3) announce ready to proceed with trial, and (4) set up a meritorious defense. See id. at 502–04, 751 S.E.2d 133 ; OCGA § 9–11–55. “Compliance with the conditions of OCGA § 9–11–55(b) is mandatory, and in its absence, the trial court has no discretion to open default.” Cavender v. Taylor , 285 Ga. 724, 725, 681 S.E.2d 139 (2009).

Franklin challenges the trial court's ruling based only on the first condition, arguing it was not met because the County's answer and amended answer were not made or verified under oath. But Franklin did not argue this below, and “[i]ssues not raised below will not be considered on appeal.”

Allen v. Peach tree Airport Park Joint Venture , 231 Ga.App. 549, 550, 499 S.E.2d 690 (1998) (footnote omitted). See also Robinson v. Moonraker Assocs. , 205 Ga.App. 597, 598, 423 S.E.2d 44 (1992) (appellants waived right to complain that trial court opened default despite appellee's failure to pay costs as required by OCGA § 9–11–55(b) ). Accordingly, we need not consider whether the four conditions for opening default have been met here.

Once those four prerequisites are satisfied, a trial court may open default on any one of three grounds: (1) providential cause, (2) excusable neglect, or (3) that a proper case has been made for opening default. Brazell , 324 Ga.App. at 502, 751 S.E.2d 133. Although the “proper case” ground is broader than the other two grounds for default, it does not give a trial court unlimited authority to open a default. Cardinal Robotics, Inc. v. Moody , 287 Ga. 18, 21, 694 S.E.2d 346 (2010). In considering whether to open default under OCGA § 9–11–55(b), courts consider (1) whether and how the opposing party will be prejudiced by opening the default, (2) whether the opposing party elected not to raise the default issue until after the time under OCGA § 9–11–55(a) had expired for the defaulting party to open default as a matter of right; and (3) whether the defaulting party acted promptly to open the default upon learning that no answer either had been filed or timely filed. Thomas v. Brown , 308 Ga.App. 514, 516, 707 S.E.2d 900 (2011). The law favors the opening of defaults, as cases should be decided on their merits whenever possible. Id. at 517(3), 707 S.E.2d 900.

Franklin argues that the County has not made a good case for opening default because counsel “substantially miscalculated” the time for filing an answer and neglect by counsel is not a valid excuse. However, the County could not file its answer until the state court case was reopened, and the undisputed evidence shows that the County acted with diligence to monitor the state court docket. The undisputed evidence also shows that the County filed its answers and moved to open default on the same day that it learned the federal court's remand order had been docketed in state court. Franklin has not shown how she will be prejudiced by opening of the default. Although the trial court did not specify the basis on which it granted the motion to open default, it did not abuse its discretion in opening default on the basis of either excusable neglect or proper case.

2. Franklin also argues that the trial court erred in granting summary judgment on the ground that she failed to timely file her lawsuit. We agree.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

Home Builders Assn. of Savannah v. Chatham County , 276 Ga. 243, 245, 577 S.E.2d 564 (2003). Because Franklin's original complaint was verified, we may consider factual allegations made therein as though she had averred those facts in an affidavit, recognizing that a verified complaint, like an affidavit, is not sufficient to avoid summary judgment to the extent that it is merely conclusory. See Kerr v. Cohen , 249 Ga.App. 392, 397(1)(c), 548 S.E.2d 17 (2001).¹

Viewing the evidence in the light most favorable to the plaintiff, Franklin has been an employee of the County since 2007, working in the health department. In 2011, she became a Financial Systems Coordinator, the duties of which included credentialing medical providers by submitting information to various care management organizations. In that capacity, she collected from providers information about their health status, demographics, and various numerical identifiers. She had additional responsibilities for credit card payment processing that involved handling confidential medical information from patients, including their diagnoses and demographics. In March 2012, Franklin was moved from a private office to a cubicle.

That move triggered a series of complaints by Franklin premised on the notion that working in a cubicle would expose providers' and patients' protected health information to the general public in violation of the law. In March 2012, she expressed concerns to her supervisors that moving to a cubicle could violate the confidentiality requirements of the federal Health Insurance Portability and Accountability Act. Later that month, she filed an internal written grievance to that effect. In July 2012, the County's grievance review committee sent Franklin a recommended settlement order, approved by the County manager, finding that the health department had not erred in its practices and thus denying Franklin's grievance. The grievance committee recommended that the health department provide a secured office for Franklin or any other employee processing documents containing confidential health information.

Franklin contends that she experienced retaliation as a result of her grievance. After she filed her grievance, on or around August 27, 2012,...