In the Matter of Tamorra A. Boyd ( 2022 )

In the Supreme Court of Georgia
Decided: December 20, 2022
S22Y0940. IN THE MATTER OF TAMORRA A. BOYD.
PER CURIAM.
The State Bar initiated this disciplinary matter in January
2021 with the filing of a Formal Complaint, charging respondent
Tamorra A. Boyd (State Bar No. 201382) with numerous violations
of the Georgia Rules of Professional Conduct (“GRPC”), see Bar Rule
4-102 (d), stemming from her allegedly having allowed a California
mortgage loan modification company to use her name and license to
operate in Georgia and having failed to provide a Georgia client who
retained Boyd via that loan modification company with the services
for which they contracted. Without holding a hearing, the special
master, LaVonda R. DeWitt, granted the State Bar’s motion for
default, denied Boyd’s request to open the default, and issued a
Final Report and Recommendation in which she recommended that
the Court suspend Boyd for six months as discipline for her conduct.
Boyd filed exceptions seeking review by the Review Board, and after
consideration, the Review Board recommended that this Court
remand the matter to the special master to proceed with a hearing
on the merits or, in the alternative, for a hearing on the motion for
default. We agree that a remand to the special master for a hearing
on the motion for default is appropriate.
On the relevant issues, the record shows that in September
2018 a couple filed a grievance against Boyd with the State Bar and
it was referred to the State Disciplinary Board (“SDB”) for
investigation. Boyd filed a lengthy, sworn response to the grievance
in October 2018, but the case then stalled for more than a year and
a half until, in May 2020, the SDB found probable cause to charge
Boyd with violations of the GRPC. In spite of State Bar Rules 4-211
(a) and 4-204.4 (a), which generally require a formal complaint to be
filed within 30 days of a probable cause determination unless the
SDB has been granted an extension of time, the Bar did not file the
formal complaint in this Court or request appointment of a special
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master until eight months later, on January 28, 2021. On February
1, 2021, the Bar mailed the formal complaint to the post-office box
Boyd listed as her official address with the Bar’s membership
department, and when the 14-day deadline for Boyd to return an
acknowledgement of service passed, the Bar immediately undertook
to serve Boyd by publication. See Bar Rule 4-203.1 (a) (stating that
a lawyer’s choice to provide only a post-office box address to the
Membership Department constitutes an election to waive personal
service). Service by publication was completed on March 5, 2021,
and, on March 15, 2021, Boyd filed an acknowledgement of service,
but she failed to timely file her answer or to timely seek an extension
of time in which to do so.
On April 27, 2021, the Bar moved for default judgment and
Boyd’s attorney, Ecleynne Mercy, emailed the Bar, seeking an
extension of time and explaining that she had been “recently
retained” and that there had been a “significant delay” due to a
“slight misunderstanding” with Boyd’s malpractice insurance
carrier. The same day, the special master directed Boyd to respond
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to the Bar’s motion for default within 30 days. On May 27, 2021,
Boyd filed, through counsel, a response to the motion for default that
referred to several attached documents, including various letters
and emails, an affidavit made under oath, and a proposed answer,
most of which were not included in her initial submission. After the
Bar filed a reply brief on May 28, 2021 noting Boyd’s failure to attach
the exhibits, Boyd filed an Amended Response, which included the
previously-omitted exhibits. Considered together, Boyd’s responses
sought to set aside the default and attempted to make out a proper
case for doing so. And, although the two responses filed by Boyd’s
counsel are not entirely consistent, they provide some evidence that
as early as February 4, 2021, Boyd was taking steps to respond to
the formal complaint by contacting her malpractice insurance
company to ask about coverage and submitting the necessary claim
application to obtain coverage; that there may have been a delay of
several weeks before the insurance company actually approved
counsel to represent Boyd; that Boyd immediately forwarded the
approval letter to counsel once counsel was approved by the
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insurance company; and that additional delays ensued as counsel
and the insurance company communicated through Boyd regarding
payment. Notably, in those exchanges, it appears that Boyd
repeatedly forwarded each party’s emails to the other promptly, only
to have the other party delay for days or weeks before forwarding its
response. In the end, Boyd’s counsel failed to file her answer to the
formal complaint in a timely manner.
Without holding a hearing, the special master issued an order
on the motion to default and on Boyd’s request to open the default.
In the order, the special master properly noted that the Civil
Practice Act generally applies to Bar disciplinary matters, see Bar
Rule 4-221.2 (b) (“In all proceedings under this Chapter occurring
after a finding of Probable Cause . . . the procedures and rules of
evidence applicable in civil cases under the laws of Georgia shall
apply”); see also In the Matter of Turk, 267 Ga. 30, 31 (1) (471 SE2d
842) (1996) (“OCGA § 9-11-55 (b) applies in disciplinary
proceedings.”). She also noted that in order to authorize the opening
of a default under the Civil Practice Act in a Bar disciplinary case,
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a respondent must show “providential cause,” “excusable neglect,”
or a “proper case,” and the rules require that her “showing shall be
made under oath, shall set up a meritorious defense, shall offer to
plead instanter, and shall announce ready to proceed with the trial.”
OCGA § 9-11-55; see also Turk, 267 Ga. at 31.
After reviewing the record, the special master held that Boyd
had ignored the Bar Rules by failing to file a timely answer, failing
to timely request an extension of time in which to file an answer,
and failing to initiate any contact with the Bar before it filed its
motion for default; that her exhibits contradicted her claim that her
insurance company delayed in appointing counsel for this matter;
and that she had not “provided a reasonable explanation for her
failure to timely answer.” Based on these findings, the special
master concluded that Boyd had not shown excusable neglect; that
she had not shown that this is a “proper case” for opening default;
and that she had not even established the conditions precedent to
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consideration of her claims of excusable neglect or a proper case1
since the only allegations of fraud and criminal activity that she
made in her effort to establish a meritorious defense were vague and
conclusory and since the assertions made in her responses to the
Bar’s motion for default were not made under oath. Thus, the special
master declined to open the default and, instead, granted the Bar’s
motion for default. Two months later, the special master entered a
report and recommendation, finding that the facts and violations
alleged in the formal complaint were deemed admitted by Boyd’s
default and recommending a six-month suspension for Boyd’s
admitted violations. Boyd sought review by the Review Board of both
the finding as to default and the recommended level of discipline.
The Review Board considered the record as a whole and
determined that Boyd had been responsive to these proceedings and
had repeatedly demonstrated her desire to proceed with the case on
the merits. The Review Board ruled that Boyd’s failure to timely
1 Boyd did not argue that the default should be opened on the ground of
providential cause.
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answer the formal complaint was inconsistent with her other
conduct in these proceedings and was addressed by the filing of her
response to the motion for default. Given the strong public policy in
favor of resolving cases on the merits rather than by default, the
Review Board concluded that after consideration of “all the facts,”
this was a proper case to open default. See Exxon Corp. v. Thomason,
269 Ga. 761, 761 (504 SE2d 676) (1998) (holding that OCGA § 9-11-
55 (b) should be liberally construed to keep with the “strong public
policy of this state favoring resolution of cases on their merits”); In
the Matter of Lasonde, 260 Ga. 843 (400 SE2d 322) (1991) (case
remanded to the special master for opening of default under the
policy of resolving cases on the merits); see, e.g., OCGA § 9-11-1
(providing that the Civil Practice Act “shall be construed to secure
the just, speedy, and inexpensive determination of every action”);
OCGA § 9-11-8 (f) (providing that “[a]ll pleadings shall be so
construed as to do substantial justice”). It accordingly recommended
that this Court accept its findings in that regard and remand this
case to the special master to proceed with a hearing on the merits, a
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hearing on the motion for default, or at least a hearing on what
factors might exist in aggravation and mitigation of discipline.
The State Bar filed lengthy exceptions to the Review Board’s
report and recommendation, arguing, in pertinent part, that this
Court should reject the Review Board’s recommendations because
the Review Board improperly applied the law to find that Boyd had
made a proper case for opening the default and that the record does
not support the Review Board’s conclusion that Boyd presented a
“meritorious defense.” Boyd has not responded to the State Bar’s
exceptions.2
After reviewing the record and pretermitting whether the
Review Board exceeded its authority in this case, we conclude that
under the circumstances of this case, a hearing should be held on
the State Bar’s motion for default and on Boyd’s request that the
special master open the default. At the outset, we note that trial
2 Boyd filed a “Motion for Continuance” on September 27, 2022, in which
she sought an extension of time to file her response to the State Bar’s
exceptions. Because this request was filed more than three months after the
date her response was due, it was dismissed as untimely. See Supreme Ct. R.
12.
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courts have “very ample powers” to open defaults and that the
proper-case ground for opening a default should be liberally applied
so as to keep with the policy of deciding cases on their merits, see
Bowen v. Savoy, 308 Ga. 204, 209 (839 SE2d 546) (2020). And, as the
Review Board noted, defaults in disciplinary cases most often
involve respondents who completely fail to respond to disciplinary
proceedings. See In the Matter of Wadsworth, 312 Ga. 159 (861 SE2d
104) (2021); In the Matter of Davis, 311 Ga. 797 (860 SE2d 467)
(2021). Here, the record suggests that Boyd cooperated and
participated in the Bar’s investigation of the complaint and
processes. Although she admittedly failed to file a timely response
after acknowledging service, as she worked with her insurance
carrier to obtain counsel, and her pleadings were imperfect in both
form and substance, her omissions do not appear to rise to the level
of failure to engage with, or affirmative disregard for, the
disciplinary process.
Accordingly, we vacate the special master’s order granting the
Bar’s motion for default, the special master’s Report and
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Recommendation, and the Review Board’s Report and
Recommendation, and we remand this matter to the special master
with direction that she set a hearing on the Bar’s motion for default
and Boyd’s request to open the default.3 If, after that hearing, the
special master decides to open the default, the matter should
proceed with discovery and a hearing on the merits of the formal
complaint. See Bar Rule 4-213. If the special master again grants
the motion for default, she may consider whether it would be
appropriate to set a hearing to consider any matters in mitigation or
aggravation of punishment. Compare In the Matter of Fagan, 314
Ga. 208, 212 n.1 (876 SE2d 242) (2022) (“[T]he Bar Rules do not give
3 Because we remand this case to the special master for a hearing on the
Bar’s motion for default and Boyd’s request to open the default, we note that
the special master, in deciding that Boyd had not met her burden of showing a
“proper case” under OCGA § 9-11-55 (b), relied on Boyd’s failure to “provide []
a reasonable explanation for the failure to timely answer” and failed to
consider “all the facts,” as required by the default judgment statute. See
Bowen, 308 Ga. at 208. As we recently explained in Bowen, however, the plain
language of OCGA § 9-11-55 (b) instructs that when determining whether a
proper case exists for the opening of default, the absence of a reasonable
explanation is not dispositive, and a special master must consider all of the
facts, including whether the failure to file a timely answer resulted from
“willful or gross negligence” and “[w]hether [the State Bar] will be harmed or
prejudiced by opening the default.” Id. at 208-209.
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the Special Master authority to sua sponte invite and receive any
evidence, including mitigation, when a party is currently in
default.”) with In the Matter of Farnham, 312 Ga. 65, 70 (860 SE2d
547) (2021) (directing special master to set a hearing on mitigating
and aggravating factors where respondent submitted pleadings to
the special master raising the possibility that such factors existed,
if, on remand, the State Bar’s motion to strike is granted). Compare
Bar Rule 4-212 (a) (providing only that if the respondent fails to
timely answer a formal complaint, “the facts alleged and violations
charged in the formal complaint shall be deemed admitted”) with
Bar Rule 4-208.1 (b) (providing that if notice of discipline is not
timely rejected, the respondent “shall be in default” and “shall have
no right to any evidentiary hearing”).
Vacated and remanded with direction. All the Justices concur.
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