Plaintiff/appellee/cross-appellant Brandy W. Neubauer, individually and next of kin, and as executor of the estate of Patricia Lowe collectively, “Neubauer”, filed a medical malpractice lawsuit against Laurel Baye Healthcare of Macon, LLC “Laurel Baye” for the alleged wrongful death of Lowe. Laurel Baye filed an untimely answer. Over a year and a half later, and after engaging in various discovery efforts, Neubauer moved for default judgment against Laurel Baye. Laurel Baye responded, contending that Neubauer had waived her right to a default judgment. Laurel Baye also filed a motion to open default and paid costs. The trial court rejected Laurel Baye’s waiver argument, denied Laurel Baye’s motion to open default, and entered default judgment against Laurel Baye. In Case No. A11A2367, Laurel Baye appeals the trial court’s order, contending the trial court erred in finding that Neubauer did not waive her right to a default judgment, or in the alternative, in denying Laurel Baye’s motion to open default. In Case No. A11A2368, Neubauer maintains that the trial court properly granted her motion for default judgment, but nevertheless cross-appeals from the trial court’s ruling insofar as it found that Laurel Baye timely paid its costs as was required to open default. With respect to Case No. A11A2367, we conclude that Neubauer waived her right to default and therefore reverse the trial court’s entry of default judgment against Laurel Baye and remand the case for further proceedings. With respect to Case No. A11A2368, we dismiss Neubauer’s cross-appeal in light of our disposition in Case No. A11A2367.
We review the trial court’s entry of default judgment for an abuse of discretion. See Strickland v. Leake , 311 Ga. App. 298, 300 715 SE2d 676 2011 physical precedent only. “Where it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm. When the issue is a question of law, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.” Citation, punctuation, and footnote omitted. Smith v. Carter , 305 Ga. App. 479, 481 2 699 SE2d 796 2010.
