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Docket Number

A92A2243.

Attorney(S)

Kardos, Warnes McElwee, James C. Warnes II, for appellant. John T. Brown, for appellees.

Judges

BLACKBURN, Judge.

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Taylor v. Chester et al., A92A2243 (Ct. App. of Ga., Feb. 1, 1993) — Opinion Summary

Factual and Procedural Background

The Chesters filed a complaint against Richard Taylor on September 19, 1990, to set aside a deed and for damages. The Sheriff's Entry of Service Form shows Taylor was served at "Route 1, Box 1491, Talmo, Georgia." Taylor retained counsel, who filed an answer and counterclaim on his behalf. Counsel later sought to withdraw, filing a Notice of Intent to Withdraw on July 1, 1991, and a Request to Withdraw on July 9, 1991, in both of which counsel listed Taylor's "last known address" as "Suite 386, 3192 Atlanta Highway, Athens, Georgia." Counsel sent a July 22, 1991 letter regarding a scheduled pre-trial conference (copying Taylor at the Atlanta Highway address); Taylor received that letter, attended the pre-trial conference unrepresented, and later appeared at the September 1991 term to obtain a continuance to retain new counsel.

The Superior Court's pre-trial calendar for the "March 2nd Term, 1992" was mailed to Taylor on January 24, 1992, at the Route 1, Box 1491, Talmo address. On February 10 (the opinion contains a year reference that appears as 1991 in the record but the calendar relates to the March 1992 term), Taylor called the court from Kansas City and requested that the case be placed on the trial calendar; court personnel told him he would receive a trial calendar in the mail notifying him of the trial date. The case was placed on the March 2, 1992 trial calendar and the calendar was mailed to Taylor on February 13, 1992, but it was mailed to an incorrect address in the court records and was returned on February 18, 1992. The clerk took no action to resend the calendar.

Taylor never received notice of the assigned trial date. On March 9, 1992, Taylor contacted the judge's secretary and was informed the case had been tried the previous week before a jury. The jury returned a verdict against Taylor for approximately $60,000 in actual damages and $40,000 in punitive damages. On April 22, 1992, Taylor moved to set aside the judgment under OCGA § 9-11-60(d); the trial court denied the motion on June 8, 1992. Taylor was granted a discretionary appeal to the Court of Appeals.

Legal Issues Presented

Whether the trial court erred in denying Richard Taylor's motion to set aside the judgment under OCGA § 9-11-60(d) on the ground that Taylor lacked notice of the assignment of the case for trial as required by OCGA § 9-11-40(c), when the trial calendar was mailed to an incorrect address and returned.

Arguments of the Parties

Appellant's Arguments

The appellant argued that the judgment should be set aside under OCGA § 9-11-60(d) because he did not receive notice of the trial assignment as required by OCGA § 9-11-40(c).
The record showed the trial calendar was mailed to an incorrect address and was returned; the appellant's former attorney had provided the court with the appellant's last known Atlanta Highway address in writing on July 1 and July 9, 1991, and included that address in a July 22, 1991 letter concerning a pre-trial conference.
The appellant contended that the lack of notice was not due to any failure on his part to inform the court of his correct address and that the clerk and the court had duties to note the returned calendar and to notify him of the trial assignment.

The opinion does not contain a detailed account of the appellees' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shelton v. Rodgers, 160 Ga. App. 910, 288 S.E.2d 619 (1982)	The principle that "a judgment or order based upon a trial or hearing entered against a party without notice to that party of the trial or hearing is subject to a motion to set aside where the lack of notice appears on the face of the record."	The Court found Shelton controlling: the record here, like Shelton, showed the trial calendar was sent to an incorrect address and returned, and the failure to receive notice was not attributable to the defendant. The court applied Shelton to conclude the lack of notice was a nonamendable defect appearing on the face of the record requiring the judgment be set aside under OCGA § 9-11-60(d).
Redding v. Raines, 239 Ga. 865, 239 S.E.2d 32 (1977)	The case for the proposition that receipt of a letter from former counsel requesting placement of the case on the next jury calendar was sufficient notice of assignment to a calendar.	The Court found Redding factually distinguishable: in Redding the movant had received a letter from former counsel indicating the case would be placed on the next jury calendar (which by law began the second Monday of the following March). Because Taylor did not receive notice that his case was assigned to a trial calendar, Redding did not control.

Court's Reasoning and Analysis

The court analyzed whether the lack of notice of the trial assignment appeared on the face of the record such that the judgment entered after the jury trial could be set aside under OCGA § 9-11-60(d). It began by citing Shelton v. Rodgers for the principle that a judgment entered after a trial without notice of the trial or hearing to the party is subject to a motion to set aside when the lack of notice appears on the face of the record.

The court found several undisputed facts significant to its analysis: the trial calendar was mailed to an incorrect address and returned; Taylor's former counsel had, prior to mailing of that calendar, notified the court in writing of Taylor's last known Atlanta Highway address (in a Notice of Intent to Withdraw, a Request to Withdraw, and in a letter concerning a pre-trial conference); Taylor received the July 22 letter and had appeared unrepresented at a pre-trial conference and at the September 1991 term to obtain a continuance. From these facts the court concluded (1) the failure of notice was not caused by Taylor's failure to inform the court of his correct address, (2) a simple review of the court file would have revealed the change in address, and (3) the clerk had a duty both to notify Taylor of the assignment to the trial calendar and to inform the court when the mailed calendar was returned.

The court also noted that the judge, by reviewing the record, should have been aware that the calendar had been returned when proceeding to trial. The court characterized the lack of notice as a nonamendable defect appearing on the face of the record and concluded that to deny relief would "punish appellant for the oversight of the clerk." The trial court's reliance on Redding v. Raines was rejected because Redding involved facts in which the movant had received adequate notice via a letter from former counsel; the present record demonstrated Taylor did not receive notice of assignment to a trial calendar, and thus Redding was inapplicable.

Holding and Implications

Holding: The Court of Appeals reversed the trial court's denial of Richard Taylor's motion to set aside the judgment. The court concluded that the record showed a total lack of notice to the appellant of the assignment of his case to a trial calendar, constituting a nonamendable defect on the face of the record requiring that the judgment be set aside under OCGA § 9-11-60(d).

Implications:

The direct effect of this decision is the reversal of the trial court's denial of the motion to set aside the judgment entered after the jury trial; the appellate court found the lack of notice required setting aside the judgment under OCGA § 9-11-60(d).
The opinion applies the existing precedent of Shelton v. Rodgers and distinguishes Redding v. Raines on its facts; the opinion does not announce a new legal rule beyond applying those precedents to the facts before the court.

Opinion by Judge Blackburn; McMurray, P. J., and Cooper, J., concur.

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TAYLOR v. CHESTER et al.

BLACKBURN, Judge.

Richard Taylor, the appellant, appeals from the denial of his motion under OCGA § 9-11-60 (d) to set aside a judgment entered against him. The alleged "nonamendable defect" appearing on the face of the record is the lack of notice to him of the assignment of the case for trial as required by OCGA § 9-11-40 (c).

The relevant and undisputed facts are as follows: The appellees, the Chesters, filed a complaint against the appellant to set aside a deed and for damages on September 19, 1990. The appellant received service of the complaint at an address shown on the Sheriff's Entry of Service Form as Route 1, Box 1491, Talmo, Georgia. The appellant hired an attorney, and the attorney filed an answer and counterclaim on the appellant's behalf. The attorney subsequently filed a Notice of Intent to Withdraw from Representation with the court on July 1, 1991, indicating that "[s]ervice of notices may be made upon Richard Taylor at his last known address of Suite 386, 3192 Atlanta Highway, Athens, Georgia 30606." On July 9, 1991, appellant's attorney filed a Request to Withdraw as attorney of record, again specifying that the appellant's "last known address . . . is Suite 386, 3192 Atlanta Highway, Athens, Georgia 30606." In a letter of July 22, 1991, addressed to the judge concerning the scheduled pre-trial conference, the appellant's attorney included the appellant's address on Atlanta Highway and copied the appellant in order to notify him of the pre-trial conference that had been scheduled for August 9, 1991. The appellant did receive the July 22, 1991 letter and attended the pre-trial conference unrepresented. The appellant also appeared at the September 1991 term of the Jackson County Superior Court and obtained a continuance for the purpose of retaining new counsel.

The Superior Court's pre-trial calendar for the "March 2nd Term, 1992" was mailed to the appellant on January 24, 1992, at Route 1, Box 1491, Talmo, Georgia 30575. On February 10, 1991, the appellant called the court and informed the court that he was in Kansas City, but would like the case placed on the trial calendar. However, the record does not show that the defendant was informed of the March 2, 1992 calendar at that time. He was informed that he would receive a trial calendar in the mail notifying him of the trial date. The case was placed on the trial calendar for the March 2, 1992 term and the calendar was mailed to the appellant on February 13, 1992, but was not mailed to the proper address contained in the court records. The record indicates that the calendar sent to the appellant was returned on February 18, 1992. The appellant, at that time, was pro se. The appellant never received the trial calendar and the clerk took no action to resend the calendar and it was placed in the record which the court had at the time the case was called.

No further attempt was made by the court to notify the appellant of the trial date or to supply him with a calendar. On March 9, 1992, the appellant contacted the judge's secretary to find out when the case would be tried and was told that the case had been tried the previous week before a jury. The jury returned a verdict against the defendant for approximately $60,000 in actual damages and $40,000 in punitive damages. On April 22, 1992, the appellant filed a motion to set aside the judgment under the provision of OCGA § 9-11-60 (d) and the motion was subsequently denied by the trial court on June 8, 1992. We granted the appellant's application for discretionary appeal.

In his sole enumeration of error, the appellant asserts that the trial judge erred by refusing to grant his motion to set aside the judgment entered against him on the grounds that appellant did not have notice of the trial. We agree.

As this court has stated in Shelton v. Rodgers, 160 Ga. App. 910 ( 288 S.E.2d 619) (1982), "`[a] judgment or order based upon a trial or hearing entered against a party without notice to that party of the trial or hearing is subject to a motion to set aside where the lack of notice appears on the face of the record. (Cits.)' [Cit.]" Id. at 911. In this case, as in Shelton, the record shows that the trial calendar was sent to an incorrect address and was subsequently returned. It further appears that the failure of the appellant to receive notice of the assignment of the case as required by OCGA § 9-11-40 (c) was not due to his failure to inform the court of his correct address. In fact, the appellant's former attorney informed the court of the appellant's last known address on July 1, 1991, in his Notice of the Intent to Withdraw From Representation, on July 9, 1991, in the actual Request to Withdraw, and on July 22, 1991, in a letter concerning the pre-trial conference. A simple review of the record by the clerk would have revealed the change in the appellant's address. The clerk had a duty to notify the appellant of the assignment of his case to the calendar and notify the court that the trial calendar that had been forwarded to the appellant had been returned. In addition, the judge, through a review of the record, should have been cognizant of the returned calendar when he proceeded with trial. "Under these circumstances, to hold that this lack of notice to appellant is not a nonamendable defect appearing on the face of the record requiring that the judgment against him be set aside under [OCGA § 9-11-60 (d)] would punish appellant for the oversight of the clerk." Shelton v. Rodgers, 160 Ga. App. at 911.

Although the trial court relied on Redding v. Raines, 239 Ga. 865 ( 239 S.E.2d 32) (1977), in denying the appellant's motion, we find that Redding is factually distinguishable. In Redding, the movant did receive notice of the assignment of his case to a trial calendar by letter from his former counsel, in which counsel requested that the case be placed on the next jury calendar. The Redding court found that the letter, that was admittedly received by the appellant, was sufficient notice since the letter indicated that the case would be placed upon the next jury calendar, which by law was set to begin the second Monday of the following March. However, in the present case, the record shows that the appellant did not receive notice that his case was assigned to a trial calendar, and was specifically told by court personnel that he would receive a trial calendar notifying him of his trial date. Therefore Shelton is controlling.

As the record in this case shows that there was a total lack of notice to the appellant of the assignment of his case to a trial calendar, we find that the trial court erred in denying the motion to set aside the judgment.

Judgment reversed. McMurray, P. J., and Cooper, J., concur.