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THE LEVIN COMPANY v. WALKER
Factual and Procedural Background
This case originated from a suit on account initiated by PYA/Monarch, Inc. (Monarch) against The Levin Company, Inc. (Levin) for materials supplied to a daycare business formerly operated by Levin. Levin denied indebtedness, asserting he had sold the daycare, and filed a third-party claim against Karen Walker and Darryl Poole, the new owners of the daycare. The case was scheduled for trial on March 17, 2004. When Walker and Poole failed to appear, the trial court entered a default judgment in favor of Levin for $161,073.88.
Walker and Poole subsequently filed a motion on July 19, 2004, to set aside the default judgment or correct a clerical error, arguing they did not receive notice of the hearing due to a mailing address issue. Their motion was dismissed for want of prosecution on May 16, 2006, after they and their counsel failed to appear at the hearing. More than eight months later, on January 23, 2007, Walker and Poole filed a motion for reconsideration to vacate the dismissal. The trial court granted this motion in February 2007. Levin appealed this order.
Legal Issues Presented
- Whether the trial court had authority to modify or vacate a judgment entered in a previous term of court when the motion to modify or vacate was filed after the term in which the judgment was rendered.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tanaka v. Pecqueur, 268 Ga. App. 380, 381-382 (2004) | Trial court's inherent power to revise, correct, revoke, modify, or vacate a judgment is limited to the same term of court in which the judgment was rendered, unless a timely motion was filed within that term. | Supported the conclusion that the trial court lacked authority to modify the judgment after the term had expired because the motion for reconsideration was filed four terms later. |
| Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 879-880 (2005) | Confirmed the limitation on a trial court’s authority to modify judgments beyond the term in which they were entered. | Reinforced that the trial court’s order granting reconsideration was void for lack of jurisdiction due to untimely filing. |
| Griffith v. Brooks, 193 Ga. App. 762, 765 (1989) | Illegality rendering a judgment void may be raised at any time and does not require waiver if not raised below. | Supported the court’s rejection of the appellees’ waiver argument regarding timeliness of the motion for reconsideration. |
Court's Reasoning and Analysis
The court emphasized the well-established legal principle that a trial judge’s inherent power to modify or vacate a judgment is confined to the term of court in which the judgment was entered, unless a motion to modify or vacate is filed within that same term. Here, the dismissal of Walker and Poole’s motion to set aside was entered in May 2006. Their motion for reconsideration was filed in January 2007, four terms later, well beyond the permissible timeframe. Because the State Court of Fulton County has six terms annually, the court found no authority for the trial court to grant the motion for reconsideration. Consequently, the February 21, 2007 order granting reconsideration was void. The court also rejected the argument that Levin waived the right to challenge the timeliness, explaining that a void judgment can be challenged at any time.
Holding and Implications
Judgment reversed.
The court reversed the trial court’s order granting reconsideration of the dismissal of the motion to set aside because the trial court lacked jurisdiction to modify the judgment after the term expired. The direct effect is that the dismissal of Walker and Poole’s motion to set aside remains in place. No new precedent was established beyond reaffirming existing limitations on trial court authority regarding modification of judgments after the term in which they were rendered.
SMITH, Presiding Judge.
We granted The Levin Company, Inc.'s (Levin's) application for interlocutory review of the trial court's order granting Karen Walker and Darryl Poole's motion for reconsideration. Because the trial court was without authority to modify or vacate a judgment entered in a previous term of court, we reverse.
This action arose as a suit on account by PYA/Monarch, Inc. (Monarch). Monarch sued Levin for material supplied to a daycare business formerly run by Levin. Levin answered, contending that he was not indebted to Monarch because he had sold the daycare. Levin then filed a third-party claim against Walker and Poole, the new owners of the daycare, and the case was set for a trial on March 17, 2004. Levin's third-party claim against Walker and Poole also included expenses Levin claimed were owed to him, as well as a claim for breach of the daycare purchase agreement. When Walker and Poole failed to appear for trial, the court entered a default judgment in favor of Levin in the amount of $161,073.88.
Monarch is no longer a party to the lawsuit as it subsequently dismissed its claims against Levin.
On July 19, 2004, Walker and Poole filed a "Motion to Set Aside Judgment or in the Alternative Motion to Correct Clerical Error," pursuant to OCGA § 9-11-60 (d) (2) and (g), contending that they did not receive notice of the March 17 hearing. Walker and Poole's counsel apparently submitted a change of address to the trial court, but the notice of the March 17 hearing was sent to counsel's old mailing address.
On May 16, 2006, when neither Walker, Poole, nor their counsel appeared for the hearing on the motion to set aside, the trial court dismissed the motion for want of prosecution. On January 23, 2007, more than eight months following the dismissal of the motion to set aside, Walker and Poole filed a motion for reconsideration seeking to have that dismissal vacated. In the motion for reconsideration, Walker and Poole's counsel claimed that when he arrived for the May 16 hearing, the courtroom was locked and that he was unable to get any information from court personnel. Counsel also claimed that he did not become aware that the motion to set aside had been dismissed until January 22, 2007. On February 21, 2007, following a hearing, the trial court granted the motion for reconsideration. Levin appeals.
Levin's counsel apparently had no difficulty gaining access to the courtroom and was present for the hearing.
Counsel offered no explanation of his apparent failure to check on the status of the motion to set aside to determine whether the hearing actually took place and whether a ruling was made on the motion.
It is well settled that
[a]lthough a trial judge has inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate such judgment, . . . this authority does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court.
(Citations omitted.) Tanaka v. Pecqueur, 268 Ga. App. 380, 381-382 (1) ( 601 SE2d 830) (2004); see Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 879 ( 616 SE2d 157) (2005). The judgment at issue here, the dismissal of Walker and Poole's motion to set aside, was filed in May 2006. The motion to modify that judgment, Walker and Poole's motion for reconsideration, was filed on January 23, 2007, four terms after the motion to set aside was dismissed. The trial court's February 2007 order granting Walker and Poole's motion for reconsideration, was also filed four terms after the motion to set aside was dismissed.
The State Court of Fulton County has six terms of court which commence on the first Monday of January, March, May, July, September, and November. See OCGA § 15-7-40; see also Ga. L. 1983, p. 4501, § 1.
Under these circumstances, the trial court was without authority to grant Walker and Poole's motion for reconsideration seeking to vacate or modify the May 2006 dismissal of their motion to set aside, and the February 21, 2007 order is void. See Cherry, supra, 273 Ga. App. at 880; Tanaka, supra, 268 Ga. App. at 382 (1).
Walker and Poole argue that Levin has waived his right to challenge the timeliness of the trial court's reconsideration of their motion to set aside, because he failed to raise that argument below. It is not necessary, however, "that the certain illegality which renders this judgment void, be raised below or else be waived, for the judgment is a nullity in the first place and cannot be relied upon." (Citations omitted.) Griffith v. Brooks, 193 Ga. App. 762, 765 (1) ( 389 SE2d 246) (1989).
Judgment reversed. Barnes, C J., and Miller, J., concur.
SMITH, Presiding Judge.
DECIDED JANUARY 24, 2008 — CERT. APPLIED FOR.Alert