                             THIRD DIVISION
                                GOBEIL,
                         COOMER, and HODGES, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 13, 2019




In the Court of Appeals of Georgia
 A18A1533, A18A1534. WILLIAMS v. MEDINGER; and vice
     versa.

      COOMER, Judge.

      In July 2012, Ron Medinger sued Michael Williams and Waba, Inc. alleging

various claims arising out of an asset purchase agreement. The case proceeded over

several years through discovery but was stayed in 2013 by a bankruptcy action

initiated by Waba. In May 2016, Medinger informed the trial court and Williams’s

attorney that he intended to proceed to trial with his claims against Williams even

though his claims against Waba were stayed pursuant to the bankruptcy proceedings.

In July 2016, Williams’s attorney filed a motion to withdraw as counsel to Williams

and Waba due in part to Williams’s lack of communication and involvement in the

case. Neither Williams nor Waba opposed the motion and the trial court granted the
attorney’s motion to withdraw in August 2016. Notice that a trial date had been set

for 9:00 a.m. in November 2016 was mailed by the clerk of court to Williams’s

address on file with the court. When the case was called for trial, Medinger and his

trial counsel were present and announced that they were ready to proceed, however,

Williams was not present. Medinger, through counsel, moved to strike Williams’s

answer, and the trial court granted the motion. The trial court entered a default

judgment against Williams on the issue of liability, and the case was tried on the issue

of damages before a jury. The jury returned a verdict in favor of Medinger and

awarded damages. The trial court entered a final judgment against Williams on

November 28, 2016. The record indicates that a copy of the final judgment was

electronically mailed to Williams’s former attorney, however the email address listed

for Williams’s former attorney was incorrect.

      In 2017, Williams filed a motion to set aside the judgment entered against him,

a motion to open default, and an extraordinary motion for new trial. Following a

hearing on the motions, the trial court granted Williams’s motion to set aside

judgment because a copy of the final judgment was not mailed to him, but then re-

entered the final judgment that same day. The trial court also denied Williams’s

motion to open default and extraordinary motion for new trial. In Case No.

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A18A1533, Williams appeals the trial court’s denial of his extraordinary motion for

new trial and motion to open default, and the re-entering of judgment against him. In

Case No. A18A1534, Medinger appeals the trial court’s order granting William’s

motion to set aside judgment.

                                Case No. A18A1533

      1. Williams argues that the trial court abused its discretion by denying his

extraordinary motion for new trial and motion to open default because he never

received the notice of the November 2016 trial date. Williams alleges that he is

without fault for not appearing for trial because he moved from Tustin, California in

Orange County to San Diego County in 2013, the trial notice was sent to his old

address, he was not personally notified of his attorney’s withdrawal from the case,

and his former counsel failed to communicate with him about the case or the

possibility of an upcoming trial date. These allegations are belied by the record.

      OCGA § 5-5-41 provides that “[w]hen a motion for a new trial is made after

the expiration of a 30 day period from the entry of judgment, some good reason must

be shown why the motion was not made during such period, which reason shall be

judged by the court.” “An extraordinary motion for new trial which is based on the

failure of the defendant and his counsel to appear for trial must set forth facts

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showing providential cause therefor and must also set forth a meritorious defense to

the plaintiff’s claim.” Covington v. Saxon, 163 Ga. App. 646, 646-47 (1) (295 SE2d

105) (1982) (citations omitted). “[B]ut, in the absence of any showing of an abuse of

its discretion, the trial court’s judgment refusing the extraordinary motion will not be

disturbed, where such motion is based on the movant’s alleged failure to receive

notice . . . of which it was his duty to keep himself apprised under the circumstances

in this case.” Graham v. Harper, 88 Ga. App. 763, 763 (77 SE2d 776) (1953)

(citation omitted). Additionally, “[when a trial court grants a plaintiff’s motion in

open court to strike a non-appearing defendant’s pleadings, and where the defendant

has submitted no transcript of the hearing, the defendant has failed to show legal

error, and the judgment by default must be affirmed.” Collier v. American Express

Centurion Bank, 306 Ga. App. 376, 376-377 (2) (702 SE2d 640) (2010) (citations

omitted).

      The record reflects that Williams was originally served the complaint at his

address in Tustin, California. In three separate pleadings filed by Williams in this

case, Williams admits the Tustin, California address is his residence and that he could

be served there. The record further shows that throughout the pendency of the

bankruptcy proceedings through 2017, Williams continued to list the Tustin,

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California address as his mailing address. Williams’s former attorney, moreover,

testified that he could not recall Williams notifying him of a change of address or

Williams ever providing a mailing address other than the Tustin, California address.

Williams’s former attorney further testified that in June 2016, he emailed Williams

and attached a notice of his intent to withdraw as counsel, and informed Williams of

his burden to, inter alia, keep the court informed as to where notices may be served.

Williams admits that he received the email from his attorney regarding his intent to

withdraw from the case, but he claims that the email went to his spam folder and he

did not see it. The record shows that the Tustin, California address is the only address

on file with the court for Williams.

      Despite Williams’s argument that in a September 2013 email he informed his

former attorney that he had moved, the record is void of any indication that Williams

notified the trial court or clerk of court of his alleged moved nor does the record show

that Williams has ever provided to the trial court his new address. “It was the duty of

the defendants-appellants to keep themselves apprised of the time of the trial under

the circumstances, which they failed to do.” Rosenberg v. Mossman, 140 Ga. App.

694, 696 (2) (231 SE2d 417) (1976) (citation omitted).



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      Extraordinary motions for new trial rest “largely within the discretion of the

trial court, whose judgment will not be interfered with unless that discretion has been

manifestly abused.” Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 774 (3) (175

SE2d 65) (1970) (citations omitted). As shown above, Williams failed to inform the

court, the clerk, the parties and counsel of his new address. Therefore, Williams was

not without fault in failing to appear, for his noticed trial. See Clements v. Trust Co.

Bank of Middle Georgia, 171 Ga. App. 600, 600 (1) (320 SE2d 576) (1984) (no abuse

of discretion where trial court found appellant had been represented by counsel, that

counsel had received notice of the trial, and that counsel’s efforts to inform appellant

of the trial date had been unsuccessful even though appellant had the same mailing

address at all pertinent times).

      Additionally, Williams’s motion to open default was also properly denied

because it was made after the final judgment was entered.”It is well established that

prior to entry of final judgment in a default situation, the proper motion by the

defaulting party is a motion to open default pursuant to OCGA § 9-11-55 (b); once

final judgment is entered, the provisions of OCGA § 9-11-55 (b) are inapplicable[.]”




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Smithson v. Harry Norman, Inc., 192 Ga. App. 796, 796 (1) (386 SE2d 546) (1989)

(citation omitted). From these facts, we cannot say the trial court abused its discretion

in denying Williams’s motions.

      2. Because we find the trial court did not abuse its discretion in denying

Williams’s motions for failure to appear at trial, we need not address Williams’s

remaining enumerations.

                                 Case No. A18A1534

      3. In his cross-appeal, Medinger argues the trial court erred in granting

Williams’s motion to set aside judgment because the final judgment was sent to

Williams as required by OCGA § 15-6-21 (c). We disagree and affirm.

      The record reflects that following the jury trial, the trial court entered a final

judgment on November 28, 2016. Counsel for Medinger received a copy of the final

judgment and saw that a copy of the judgment had been mailed to Williams’s former

attorney instead of Williams’s listed address. Medinger’s attorney, aware that

Williams’s attorney had withdrawn as counsel from the case prior to trial, sent a copy

to Williams’s last known address in Tustin, California. Months later, Williams filed

a motion to set aside the judgment on the grounds that the judgment had not been

mailed to him as required by OCGA § 15-6-21 (c). Following a hearing, the trial court

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granted the motion to set aside the judgment and then re-entered judgment to allow

a new 30 day period for Williams to appeal. Medinger appeals the re-entry of the final

judgment.

      “Under the Civil Practice Act, a judgment cannot be set aside, based upon

OCGA § 9-11-60 (d), unless the grounds relied upon are unmixed with the negligence

or fault of the movant.” Young Const., Inc. v. Old Hickory House No. 3, Inc., 210 Ga.

App. 559, 561 (2) (b) (436 SE2d 581) (1993) (citations omitted). OCGA § 15-6-21

(c) provides in pertinent part that “it shall be the duty of the judge to file his or her

decision with the clerk of the court in which the cases are pending and to notify the

attorney or attorneys of the losing party of his or her decision.” “Although OCGA §

15-6-21 refers to notice for decisions made on motions, its logic also applies to final

judgments.” Wright v. Young, 297 Ga. 683, 683 (777 SE2d 475) (2015) (citation

omitted). In the instant case, the issue is not whether Williams had knowledge that the

final judgment was entered, but rather whether the duty imposed on the trial court in

OCGA § 15-6-21(c) was carried out. See Kendall v. Peach State Machinery, Inc., 215

Ga. App. 633, 634 (2) (451 SE2d 810) (1994) (physical precedent only). “If the trial

court finds the statute’s requirements were not met, the earlier judgment must be set



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aside before judgment is re-entered to commence a new 30-day period for appeal.”

Id.

      Medinger argues that the requirements of OCGA § 15-6-21 (c) were met

because his counsel, as an officer of the court, sent the final judgment to Williams’s

last known address. Medinger contends that by sending Williams the final judgment,

Medinger’s counsel was acting on behalf of the trial court. However, Medinger does

not argue, and we cannot find any authority that suggests the trial court satisfies its

obligation under the statute where a copy of the final judgment is sent to the losing

party by a third party and where the third party is not acting under the trial court’s

express direction. Compare Woods v. Savannah Rest. Corp., 267 Ga. App. 387, 388

(599 SE2d 338) (2004) (requirements met where counsel was acting on the trial

judge’s behalf when, in response to the trial court’s directions, he mailed a copy of

the final judgment to the losing party).

      Consequently, the trial court did not abuse its discretion in finding that it did

not meets its statutory requirement to notify Williams of the final judgment and

setting aside the judgment. Because the trial court found that it failed to meet its

notice requirements under with OCGA § 15-6-21 (c) with regard to the final

judgment, it was authorized to grant Williams’s motion to set aside and re-enter the

                                           9
final judgment. See Wright v. Wright, 300 Ga. 114, 116-117 (2) (793 SE2d 96)

(2016). See also Pierce v. State, 289 Ga. 893, 895 (2) (717 SE2d 202) (2011).

      Judgment affirmed. Gobeil and Hodges, JJ., concur.




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