Sondi Moore-Waters v. Met-Test, LLC.

FOURTH DIVISION
RAY, J.,
MCMILLIAN and MERCIER, 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
February 23, 2016
In the Court of Appeals of Georgia
A15A1769. MOORE-WATERS et al. v. MET-TEST, LLC.
RAY, Judge.
Sondi Moore-Waters, Alphonso Waters, and Family Practice of Atlanta
Medical Group, LLC (collectively the “Appellants”) appeal from the trial court’s
grant of Met-Test, LLC’s motion for default judgment against them. On appeal, the
Appellants contend that the trial court erred because they were not legally obligated
to answer an amended complaint. For the reasons that follow, we reverse the grant of
the default judgment.
We review an appeal from a trial court’s ruling on a motion for default
judgment for abuse of discretion. Heath v Beech, 300 Ga. App. 756, 756 (1) (686
SE2d 283) (2009).
Although the record of the case’s procedural history is incomplete and
somewhat unclear, it appears that Met-Test initially filed suit in magistrate court only
against Sondi Moore-Waters, a physician.1 The suit was dismissed by the magistrate
court. Met-Test appealed to the superior court and moved to add as defendants
Moore-Waters’s husband and medical practice manager, Alphonso Waters, and
Family Practice of Atlanta Medical Group, LLC. The trial court granted that motion.
On October 24, 2014, Met-Test filed an amended complaint against all three
Appellants.2 When the Appellants failed to answer, Met-Test moved for a default
judgment on December 30, 2014, which the trial court granted. See OCGA § 9-11-55
(a). Met-Test had alleged that the Appellants failed to pay for medical testing services
and equipment that it supplied. The default judgment awarded $14,900.00 in
damages, attorney fees of $4,316.50, plus post-judgment interest.
OCGA § 9-11-15 (a), on its face, only requires an answer to an amended
complaint when ordered by the trial court, providing that “[a] party may plead or
1
The record before us does not contain an answer from Moore-Waters to the
initial suit, although there is some indication that one may have been filed. However,
as this is not an issue raised on appeal, we will not further address it here.
2
There is no dispute that each Appellant was served with the amended
complaint.
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move in response to an amended pleading and, when required by an order of the
court, shall plead within 15 days after service of the amended pleading, unless the
court otherwise orders.” (Emphasis supplied.) Met-Test argues that to the extent that
OCGA § 9-11-15 (a) does not require a response to an amended complaint, this
provision would apply only to the original defendant, Sondi Moore-Waters, and not
to Alphonso Waters or Family Practice of Atlanta Medical Group because the
amended pleading was, to them, in essence an original complaint requiring an answer.
However, this Court has held that where the trial court, in granting the motion to add
defendants, does not require the later-added parties to file an answer, they need not
do so. Random Access, Inc. v. Atlanta Datacom, Inc., 232 Ga. App. 269, 270 (501
SE2d 610) (1998). The trial court in the instant case did not require Alphonso Waters
or Family Practice of Atlanta Medical Group to file an answer. See Gordy v. Sumner,
151 Ga. App. 430, 430 (260 SE2d 384) (1979); Chan v. W-East Trading Corp., 199
Ga. App. 76, 77-78 (4), 79-80 (5) (403 SE2d 840) (1991) (finding that a defendant
who was not required by statute nor affirmatively ordered by the trial court to answer
an amended complaint which added him as a party was not in default); Random
Access, supra (finding that “Chan does not mandate that an answer be filed unless one
is specifically required by order of the court adding a party”). Further, “[a]verments
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in a pleading to which no responsive pleading is required or permitted shall be taken
as denied or avoided.” OCGA § 9-11-8 (d). Accord Grand Lodge of Ga., Independent
Order of Odd Fellows v. City of Thomasville, 226 Ga. 4, 9-10 (4) (172 SE2d 612)
(1970) (no responsive pleading to an amended complaint is required, and averments
in a pleading to which no responsive pleading is required are deemed denied).3
While we will never condone dilatory conduct by a defendant, it remains true
that “[i]f the interest of justice demands that answer be given, a party’s remedy is to
make timely request of the trial judge to affirmatively order an answer to the amended
complaint.” Chan, supra at 80 (5), citing OCGA §§ 9-11-7 (a), 9-11-12 (a), 9-11-15
(a) and (d), 9-11-21, and 15-1-3 (4) and (6).
3
We acknowledge that Met-Test has put forth a solid argument that Alphonso
Waters and Family Practice of Atlanta Medical Group should have to answer the
amended complaint since it was the first pleading ever served on them and since
OCGA § 9-11-8 generally requires that a defendant file an answer to a complaint. We
also note that OCGA § 9-11-12(a) requires a defendant to serve its answer within
thirty days after the service of the summons and complaint, unless otherwise provided
by statute. Yet, our precedent provides that no answer is needed by a newly added
defendant unless the trial court so orders. Met-Test has not invited us to overrule such
precedent, and we decline to do so sua sponte, especially given that Alphonso Waters
and Family Practice of Atlanta Medical Group may have relied on such precedent in
not filing an answer.
4
Because Appellants were not required to file an answer to the amended
complaint, “it follows that [they were] never in default and [the] default judgment was
void.” (Citations and punctuation omitted.) Chan, supra at 79 (5).
Judgment reversed. McMillian, and Mercier, JJ., concur.
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