                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                    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


                                                                       May 30, 2018




In the Court of Appeals of Georgia
 A18A0294. BARBOUR v. SANGHA et al.

      PHIPPS, Senior Appellate Judge.

      This is an interlocutory appeal from the denial of plaintiff Michael Barbour’s

motion for entry of default judgment against defendant Dr. Sumandeep Sangha after

Dr. Sangha’s answer was rejected by the Fayette County State Court e-filing system.

After a hearing, the trial court denied Barbour’s motion and also found that the

motion lacked substantial justification such that an award of attorney fees under

OCGA § 9-15-14 (b) was warranted. On appeal, Barbour argues that the trial court

erred when it ordered Dr. Sangha’s answer to be accepted as timely and denied

Barbour’s motion for default judgment without an evidentiary hearing, that the court

should have considered whether opening default was appropriate, and that the court

also erred when it found him liable for attorney fees. We affirm the trial court’s denial
of the motion for default judgment, but we vacate that court’s finding of liability for

attorney fees and remand for further proceedings limited to that issue.

      We review the denial of a motion for entry of default judgment only for an

abuse of discretion. Edenfield & Cox, P. C. v. Mack, 282 Ga. App. 816, 816 (640

SE2d 343) (2006). “[D]efault judgment is a drastic sanction that should be invoked

only in extreme situations. Whenever possible, cases should be decided on their

merits, for default judgment is not favored in law.” Thomas v. Brown, 308 Ga. App.

514, 517 (3) (707 SE2d 900) (2011) (citation and punctuation omitted).

      The relevant facts are undisputed. On May 31, 2016, plaintiff Michael Barbour

filed the instant medical malpractice lawsuit against defendant Dr. Sumandeep

Sangha in Fayette County State Court. Barbour served the complaint on Dr. Sangha

on June 2, 2016. On July 5, 2016, Dr. Sangha’s counsel electronically filed an

answer, a demand for a jury trial, a motion to dismiss and brief in support, and a

request for oral argument, and received an acknowledgment of the filings from the

Peach Court e-filing system the same day.1 Defense counsel also served Barbour’s


      1
        The electronic message stated that the filing “was received by Peach Court
and has been successfully transmitted to the Clerk of Fayette County State Court. You
will receive a separate confirmation message if this filing is accepted by the clerk.
Please do not reply to this message.”

                                          2
counsel with the filings via U. S. Mail and mailed courtesy copies to the judge’s

chambers. On July 6, 2016, the clerk’s office sent an email to defense counsel’s

registered e-filer, Victoria Lockard, that the filings had been rejected because “the

signatures of the documents do not match the credentials of the filer.” Lockard did

not see this email.

      On July 12, 2016, the trial court’s staff attorney sent an email to both sides

confirming receipt of Dr. Sangha’s motion to dismiss, but also stating that the Clerk’s

office had not received the filings and asking Dr. Sangha to refile the motion. Later

that day, the staff attorney also noted via email that the Clerk had not received Dr.

Sangha’s answer. Defense counsel then learned that the Clerk had rejected the filings

because the signatures on some of the documents (by Lori Cohen) did not match

Lockard’s credentials. Although Dr. Sangha’s answer was one of the documents

rejected, no such mismatch occurred on that document, which was signed by Lockard

herself. Defense counsel refiled the answer, the motion to dismiss, and the remaining

documents previously filed with corrected signature lines that same day.

      On July 15, 2016, defense counsel Jessica Odom contacted the Clerk’s office

to confirm acceptance of the refiled pleadings and to inquire about the costs



                                          3
associated with opening any presumed default under OCGA § 9-11-55 (a).2 An officer

worker told Odom that the docket showed an answer filed on July 12 and that it was

therefore not necessary for Dr. Sangha to pay any costs.

      On August 8, 2016, however, after the 15-day period to open default as a

matter of right had expired, Barbour filed a motion for entry of default judgment.

After a hearing at which the trial court noted that the relevant facts were not in

dispute, the court entered an order finding that Dr. Sangha’s answer had been “timely

filed and properly signed by the registered filer” and that the answer had been

rejected “solely due to the purported protocol of the PeachCourt e-filing system and

the actions of the Clerk of Court.” Citing Uniform Superior Court Rule 36.16 (F),

which grants a court the power to “enter appropriate relief” in cases in which

“electronic filing or service is prevented or delayed because of a failure of the

electronic filing system,” the trial court instructed its Clerk to mark Dr. Sangha’s

answer as filed and docketed nunc pro tunc as of July 5, 2016. The trial court also

found that Barbour’s “hyper-technical” motion for default judgment “lacked

      2
        OCGA § 9-11-55 (a) provides in relevant part: “If in any case an answer has
not been filed within the time required by this chapter, the case shall automatically
become in default unless the time for filing the answer has been extended as provided
by law. The default may be opened as a matter of right by the filing of such defenses
within 15 days of the day of default, upon the payment of costs.”

                                         4
substantial justification and unnecessarily expanded the proceedings, causing undue

expense” to Dr. Sangha, such that an award of reasonable attorney fees was

appropriate under OCGA § 9-15-14 (b). The court thus denied Barbour’s motion for

default judgment, denied Dr. Sangha’s motion to open default as moot, and reserved

its determination of the amount of attorney fees for a later evidentiary hearing. The

trial court also granted Barbour a certificate of immediate review as required by

OCGA § 5-6-34 (b). We granted Barbour’s application for interlocutory review, and

this appeal followed.

      1. As a preliminary matter, Barbour is incorrect to assert that the trial court

refused to hold an evidentiary hearing. The transcript of the hearing shows that the

first issue addressed there was whether there was any need for witness testimony in

addition to the parties’ previous submissions, including a timeline and the exhibits

attached to their pleadings and motions, detailing the evidence outlined above. After

hearing argument, the trial court found that no such testimony was necessary in light

of the undisputed facts laid out in those filings. The record also shows that after the

court’s ruling on this issue, the parties agreed, without objection from Barbour, to

refer to a binder prepared by the defense, and provided to plaintiffs and the court,



                                          5
containing the relevant filings and their exhibits, all of which appear in the appellate

record.

      2. Barbour also argues that the trial court erred in ordering Dr. Sangha’s answer

docketed and filed as of July 5, 2016 and thus in denying Barbour’s motion for

default judgment. We disagree.

      A trial court has broad discretion to correct clerical errors including a clerk’s

failure to mark a document as filed on the date that document is actually delivered to

the clerk. Forsyth v. Hale, 166 Ga. App. 340, 343 (304 SE2d 81) (1983); see also

Gibbs v. Spencer Industries, 244 Ga. 450, 450-451 (260 SE2d 342) (1979) (the proper

date of a filing is an issue for the trial court to resolve). This case concerns the

application of this discretion in the context of Uniform Superior Court Rule 36.16,

which provides in relevant part:

      (C) Signatures. An electronically filed document is deemed signed by
      the registered filer submitting the document as well as by any other
      person who has authorized signature by the filer. By electronically filing
      the document, the filer verifies that the signatures are authentic.


      (D) Time of filing. An electronic document is presumed filed upon its
      receipt by the electronic filing service provider, which provider must
      automatically confirm the fact, date and time of receipt to the filer.
      Absent evidence of such confirmation, there is no presumption of filing.

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      ...



      (F) System or user filing errors. If electronic filing or service is
      prevented or delayed because of a failure of the electronic filing system,
      a court will enter appropriate relief such as the allowance of filings nunc
      pro tunc or the provisions of extensions to respond.


(Emphasis supplied.)

      Here, Dr. Sangha’s answer was signed and filed by the registered filer, with the

result that it was “presumed filed upon its receipt,” as confirmed by the PeachCourt

e-filing system. USCR 36.16 (D). The trial court thus had evidence for its conclusion

that when the e-filing system rejected the entire batch of documents, including the

properly executed and filed answer, a “system or user filing error,” including a

“failure of the electronic filing system,” occurred such that the court was authorized,

if not required, to “enter appropriate relief such as the allowance of [the filing] nunc

pro tunc.” Id. at (F). It being undisputed that Dr. Sangha’s answer was properly

signed and e-filed on July 5, 2016, and that the PeachCourt system rejected the filing

because of mismatched signatures on the other documents also submitted on that date,

the trial court did not abuse its discretion when it ordered that answer docketed as of

that date. See Lavan v. Phillips, 184 Ga. App. 573, 574 (362 SE2d 138) (1987)

                                           7
(reversing a trial court’s rejection of a filing when the clerk’s endorsement “did not

reflect the actual filing date” such that “the trial court should have ruled [a] complaint

timely filed”).

      3. Because the trial court did not err in ordering Sangha’s answer filed as of

July 5, 2016, the case never went into default. See Rainier Holdings v. Tatum, 275

Ga. App. 878, 879 (1) (622 SE2d 86) (2005) (when defect in a corporate defendant’s

answer was cured by the filing of a second answer by a licensed attorney, the second

answer related back such that the trial court erred in entering a default judgment

against that defendant). Because the case never went into default, the trial court was

not required to reach the question whether default should have been opened under

OCGA § 9-11-55 (a).

      4. Barbour also asserts that the trial court erred when it concluded that his

motion for default judgment lacked substantial justification and unnecessarily

expanded the proceedings such that Sangha was entitled to reasonable attorney fees

under OCGA § 9-15-14 (b).3

      3
        The statute provides in relevant part: “(b) The court may assess reasonable
and necessary attorney’s fees and expenses of litigation in any civil action in any
court of record if, upon the motion of any party or the court itself, it finds that an
attorney or party brought or defended an action, or any part thereof, that lacked
substantial justification or that the action, or any part thereof, was interposed for

                                            8
      Although Barbour complains that Sangha should have filed a separate motion

for fees under OCGA § 9-15-14, a trial court is entitled to consider the issue “upon

its own motion.” Mize v. Regions Bank, 265 Ga. App. 635, 636 (2) (595 SE2d 324)

(2004), citing OCGA § 9-15-14 (b). Here, based on the evidence submitted by the

parties, but after argument limited to the motions for default judgment and to open

default, the trial court reached the conclusion that Barbour’s motion for default

judgment “lacked substantial justification.”

      The record shows, however, that the issue of attorney fees was never mentioned

or argued at the hearing. The trial court thus erred when it considered the issue of

liability under OCGA § 9-15-14 (b) “without providing notice that it was considering

an award under that Code section or a hearing on that issue.” Wall v. Thurman, 283

Ga. 533, 534 (3) (661 SE2d 549) (2008) (emphasis supplied); see also Evers v. Evers,

277 Ga. 132, 132 (1) (587 SE2d 22) (2003) (a party opposing a motion for attorney

fees under OCGA § 9-15-14 (b) must be afforded an “oral hearing,” including “an

opportunity to confront and challenge testimony as to the need for, and value of, legal

services”). We therefore vacate the portion of the trial court’s award finding Barbour



delay or harassment, or if it finds that an attorney or party unnecessarily expanded the
proceeding by other improper conduct. . . .”

                                           9
liable for fees under OCGA § 9-15-14 (b) and remand for further proceedings

consistent with this opinion, including an evidentiary hearing as to both Barbour’s

liability under that statute and the reasonableness of the fees spent on defending

against the motion for default judgment. Wall, 283 Ga. at 534 (3) (reversing award

of attorney fees when trial court failed to conduct a hearing as to party’s liability for

OCGA § 9-15-14 (b) attorney fees, even when it later “provided a hearing to

determine the amount of attorney fees that were due”).

      Judgment affirmed in part and vacated in part, and case remanded with

direction. Ellington, P. J., and Bethel, J., concur.




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