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Pine Tree Publ'g Inc. v. Community Holdings Inc.

The trial court had no authority to open the defendant's default under O.C.G.A. § 9-11-55 b without considering whether the plaintiff's final judgment could be set aside pursuant to O.C.G.A. § 9-11-60 d.

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In this action for trademark infringement, Pine Tree Publishing, Inc. appeals the trial court’s order opening a default judgment against Community Holdings, Inc. pursuant to OCGA § 9-11-55 b. Pine Tree contends that, because a final judgment had been entered, the trial court had no authority to open default. For the reasons set forth below, we agree.

The record shows that Pine Tree filed a complaint against Community Holdings for copyright infringement on September 21, 1998. Community Holdings was served on October 12, 1998, but failed to answer. Pine Tree then moved for a finding of default, and a final judgment was entered against Community Holdings on December 4, 1998. On December 10, 1998, Community Holdings, citing OCGA § 9-11-55 b, filed a motion to open the default judgment or, in the alternative, set aside the judgment. After a hearing, the trial court granted Community Holding’s motion to open default pursuant to OCGA § 9-11-55 b, finding that Pine Tree would not be prejudiced and that the infringement case was a proper one to hear on its merits.

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