On December 28, 2000, plaintiff-appellee Carl S. Harris filed his personal injury complaint for damages against defendant-appellant Red Train, Inc., individually, and Red Train, Inc. d/b/a Cafe Red Train a/k/a Red Train Cafe and Hong Pae Kim a/k/a Kevin Kim, individually. Harris alleged negligence in Kim for failure to remove Daton Marion, a patron, from the Cafe after Marion verbally accosted him; failure to protect him from being shot by Marion when Marion later fired multiple handgun shots in the Cafe after getting into a dispute with another customer; and failure to exercise ordinary care in keeping the Cafe safe for invitees under OCGA § 51-3-1. Kim, individually, was served with a copy of the summons and complaint on January 4, 2001, but failed to timely answer. The fifteen days within which Kim could have paid costs and opened default as a matter of right expired on February 20, 2001. See OCGA § 9-11-55 a. On February 26, 2001, Kim paid costs and filed his answer and motion to open default. Kim appeals from the Cobb County State Court’s denial of such motion, entered on July 18, 2001, and, following the trial thereon, from the award of damages in the amount of $98,700.1 Held :
1. Kim first contends that the state court erred in denying his motion to open default for his compliance with OCGA § 9-11-55 b. Under OCGA § 9-11-55 b, a prejudgment default may be opened upon a showing of either providential cause, excusable neglect, or proper case subject to first satisfying four conditions precedent: 1 a “showing made under oath, 2 offering to plead instanter, 3 announcing ready to proceed with trial, and 4 setting up a meritorious defense.” Citations and punctuation omitted. Forrister v. Manis Lumber Co. , 232 Ga. App. 370, 373 3 501 SE2d 606 1998. Generally, whether a default should be opened is a matter which lies within the sound discretion of the trial court. However, each of the conditions precedent must be met. Otherwise, discretion in the trial judge to open the default does not arise. Stewart v. Turner , 229 Ga. App. 119, 121 2 493 SE2d 251 1997.
