ABA 241 Peachtree v. Brooken & McGlothen

The trial court did not err in allowing the appellee to open default on proper case grounds, because the record supported the trial court's conclusion that the four conditions precedent were met.

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Appellant ABA 241 Peachtree sued appellee Eric McGlothen and Brooken & McGlothen, LLC “B&M” to recover past due rent arising from an alleged breach of a commercial lease agreement. McGlothen filed his answer to the complaint one day late, automatically placing the case in default. After the time period in which McGlothen could have opened the default as a matter of right elapsed, Peachtree moved for a default judgment. In a series of orders, the trial court denied Peachtree’s motion for default judgment, allowed McGlothen to open the default and to withdraw certain admissions that had been deemed admitted by virtue of McGlothen’s failure to respond to discovery, and awarded McGlothen summary judgment. Peachtree argues that the trial court’s rulings were erroneous. For the reasons that follow, we affirm in part and reverse in part. The record shows that Peachtree filed suit against McGlothen and B&M, alleging breach of a commercial lease agreement. McGlothen was served with the summons and complaint on May 21, 2007. McGlothen, who was acting pro se, miscalculated the response due date and filed an answer on June 21-31 days after the date of service, thereby placing the case in automatic default pursuant to OCGA § 9-11-55 a.

On August 28, 2007, Peachtree moved the trial court for entry of a default judgment and also served McGlothen with several discovery requests, amongst them a request for admissions. McGlothen responded to Peachtree’s motion for default judgment, mistakenly asserting that his answer had been timely filed. He also filed a motion to dismiss the complaint, arguing that Peachtree had failed to state a claim against him because he was not a party to the lease, had not signed the lease on behalf of B&M, and had not personally guaranteed the lease. McGlothen also argued that there was no allegation or evidence authorizing a piercing of B&M’s corporate veil so as to subject McGlothen to personal liability.

ABA 241 Peachtree v. Brooken & McGlothen

The trial court did not err in allowing the appellee to open default on proper case grounds, because the record supported the trial court's conclusion that the four conditions precedent were met.

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