Asher Syed v. Merchant's Square Office Buildings LLC ( 2020 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
March 11, 2020
In the Court of Appeals of Georgia
A19A1690. SYED v. MERCHANT’S SQUARE OFFICE
BUILDINGS LLC et al.
BARNES, Presiding Judge.
Asher Syed appeals from the denial of his motion to set aside judgment
pursuant to OCGA § 9-11-60 (g),1 and asserts that he never received certain of the
trial court’s orders, including the default final judgment in favor of Merchant’s
Square Office Buildings, LLC and Safeway Group, Incorporated (Appellees). Thus,
Syed contends, the trial court erred by failing to set aside the judgment and re-enter
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Syed filed an application for discretionary review of the trial court’s order,
however “[m]otions to set aside brought on the grounds that the court failed to notify
the losing party of its decision are cognizable as motions to correct a clerical error
pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.”
Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 869 (1) (481 SE2d 903)
(1997). Thus, this Court granted Syed’s application as a timely discretionary
application from a lower court’s order that is subject to direct appeal. See OCGA §
5-6-35 (j).
the final order pursuant to the duty imposed on the court by OCGA § 15-6-21 (c). For
the reasons that follow, we affirm.
This Court reviews the denial of a motion to set aside a default judgment for
an abuse of discretion. Sanson v. State Farm Fire & Cas. Co., 276 Ga. App. 555, 556-
557 (623 SE2d 743) (2005). So viewed, the relevant facts demonstrate that Syed filed
the underlying complaint against the Appellees , and thereafter on June 8, 2017, the
trial court entered a Case Management Order setting trial deadlines for, among other
things, discovery. The Appellees served discovery on Syed on July 3, 2017, after
which, on July 21, 2017, Syed filed a motion for an extension of time in which to
answer discovery, which the trial court granted by order entered on July 31, 2017.
The trial court directed that Syed respond to the Appellees’ “interrogatories and
request for documents [by] August 15, 2017.”
When Syed did not respond by the discovery deadline, on August 25, 2017, the
Appellees sent an email to Syed’s attorney asking for the discovery responses “within
5 days (and, of course, with no objection since such have now been waived.)”
Thereafter, on September 7, 2017, the Appellees filed a motion to compel discovery,
which, following a hearing at which neither Syed nor his counsel appeared, the trial
court granted by order entered on October 12, 2017. Per the order, Syed was directed
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to respond to the discovery request within ten days of the date of the order, and
warned that failure to comply could result in sanctions, including striking the
complaint and entering default judgment for the Appellees. Syed did not respond to
the order. On December 13, 2017, following a hearing at which Syed again failed to
appear, the trial court entered a final order granting default judgment to the
Appellees, and noting that Syed had failed to respond to the discovery request and
discovery deadlines in the trial court’s subsequent order compelling discovery. The
order further noted “that [Syed] has and continues to willfully disregard the judicial
process and this Court’s order.” The order was mailed to the address on file, but was
returned stamped, “return to sender, not deliverable as addressed, unable to forward.”
In April 2018, Syed obtained new counsel who learned that the case had been
dismissed. On July 12, 2018, Syed’s new attorney filed a motion to set aside the
judgment under OCGA § 9-11-60, arguing that the order should be set aside under
OCGA § 9-11-60 (d) and (g) because he had not received any of the trial court’s
orders, including the final default judgment dismissing his complaint. At the
subsequent hearing on the motion, Syed’s former counsel testified that the law firm’s
physical address is 3295 River Exchange Drive. . . [a]nd for
jurisdictional purposes, and for all matters really, we’re in Sandy
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Springs. . . Everything else around us is Peachtree Corners and Roswell.
We’re on the border of a lot of different municipalities. But for
jurisdictional purposes we always write down Sandy Springs because .
. . for the Court’s purposes or any purpose legally that’s where we lie.
He testified that prior to August of 2017, there had never been an issue with delivery
of the mail to the Sandy Springs address and that the mail issues since then have
“been a nightmare” for the firm. The trial court denied the motion to set aside, and
this appeal ensued.
OCGA § 15-6-21 (c) provides, in pertinent part, that: “When he or she has so
decided, it shall be the duty of the judge to file his or her decision with the clerk of
the court in which the cases are pending and to notify the attorney or attorneys of the
losing party of his or her decision.” See Brown v. E.I. du Pont de Nemours & Co., 240
Ga. App. 893, 894-895 (1) (525 SE2d 731) (1999) (“A trial judge has a duty to file
his decision with the clerk of the court in which the cases are pending and to notify
the attorney or attorneys of the losing party of his decision.”) When “notice of the
entry of an appealable order is not given, the losing party should file a motion to set
aside, and the trial court should grant the motion and re-enter the judgment,
whereupon the 30-day appeal period would begin to run again.” (Citation omitted.)
Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000). See Tyliczka v. Chance, 313
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Ga. App. 787, 788 (723 SE2d 27) (2012) (“if a trial judge fails to give the required
notice of a decision, a party aggrieved by the decision is entitled to have it set aside
under OCGA § 9-11-60 (g).”) (citations omitted). However, “the issue is not whether
the losing party had knowledge that judgment was entered, but rather whether the
duty imposed on the court in OCGA § 15-6-21 (c) was carried out.” (Citation
omitted.) Wright v. Young, 297 Ga. 683, 684 n. 3 (777 SE2d 475) (2015)
(disapproving in part Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269
SE2d 426) (1980), the extent that it holds “that notice must be sent and received in
order to deny a motion to set aside in these circumstances, it is disapproved. OCGA
§ 15-6-21 (c) only requires that the trial court give notice to the losing party. If the
trial court has in fact given notice, then a motion to set aside may be properly denied
whether or not the losing party actually received the notice.”) (emphasis in original);
Moore v. State, 305 Ga. 699, (827 SE2d 657) (2019) (“In Wright, this Court clarified
that “OCGA § 15-6-21 (c) only requires that the trial court give notice to the losing
party,” and disapproved Cambron to the extent it held that ‘notice must be sent and
received.’”) (citation omitted).
Here, pretermitting whether, as Syed contends, he did not receive the order
entering final judgment and dismissing his claim, it is unrefuted that the trial court
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mailed the order to the address on record, although it was later returned stamped
undeliverable.2 As previously noted, our determination is not predicated on the losing
party’s knowledge, but “ rather [on] whether the duty imposed on the court in OCGA
§ 15-6-21 (c) was carried out.” Wright v. Young, 297 Ga. at 684. In this case, given
the foregoing, the trial court properly discharged the duty imposed by OCGA § 15-6-
21 by providing notice to Syed of the final judgment and thus did not err in denying
the motion to set aside.
While the order does not specifically state that notice required pursuant to
under OCGA § 15-6-21 (c) was provided, given the facts and pleadings under which
the trial court denied the motion to set aside, such determination was inherent in the
trial court’s order. See Woods v. Savannah Restaurant Corp., 267 Ga. App. 387, 388
(599 SE2d 338) (2004) (“[T]he trial court set out the facts under which it found the
motion to set aside should be denied. As such, it is inherent in the trial court’s order
denying Woods’ motion to set aside the final judgment that the trial court found that
the requirement for notice under [O.C.G.A. § 15-6-21 (c)] . . . had been complied
2
OCGA § 9-11-5 (b) provides, in relevant part, that “[s]ervice upon the
attorney or upon a party shall be made by delivering a copy to the person to be served
or by mailing it to the person to be served at the person’s last known address[.]”
(emphasis supplied).
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with.”); Intertrust Corporation v. Fischer Imaging Corporation, 198 Ga. App. 812,
813 (1) (403 SE2d 94) (1991(“although there was no specific finding that notice to
[appellant’s] counsel was not made, such a finding is inherent in the trial court’s
action and in the absence of a contrary showing, the trial court will be presumed to
have followed the law.”) (citation and punctuation omitted). Compare Pierce v. State,
289 Ga. 893 (2) (717 SE2d 202) (2011) (when no determination as to whether notice
was provided under OCGA § 15-6-21 (c), order denying motion to set aside must be
vacated and case remanded for trial court to make necessary finding as to notice);
Grant v. State of Ga., 302 Ga. App. 739, 741-742 (691 SE2d 623) (2010) (same).
Judgment affirmed. Mercier and Brown, JJ., concur.
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