                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, 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


                                                                      June 30, 2016




In the Court of Appeals of Georgia
 A16A0122, A16A0277. SUMMERS v. WASDIN et al. (two cases).

      MCFADDEN, Judge.

       In these related appeals, we granted interlocutory review of two orders arising

from the plaintiff’s contention that the defendants were in default. As detailed below,

the trial court correctly held that the defendants timely filed their answer.

Accordingly, they were not in default. We therefore vacate the trial court’s order

permitting the defendants to open default in Case No. A16A0122, and we affirm the

trial court’s order denying the plaintiff’s motion for entry of default judgment in Case

No. A16A0277.

      1. Facts and procedural history.

      On June 2, 2014, the plaintiff filed a complaint seeking injunctive and other

relief in connection with a dispute over the irrigation of farm land that was the subject
of an agreement between the parties. The plaintiff also requested a temporary

restraining order (TRO). On June 17, 2014, the trial court entered a temporary

consent order on issues raised in the TRO request, and on that same day the

defendants’ attorney signed an acknowledgment of service of the complaint, which

the plaintiff filed with the trial court on June 25, 2014. On July 23, 2014, the

defendants filed their answer. Thereafter, the plaintiff moved for partial summary

judgment, which the trial court denied on October 17, 2014.

      After the trial court denied the plaintiff’s motion for partial summary judgment,

the plaintiff moved the trial court to strike the defendants’ answer and to enter a

default judgment, arguing that the answer had been untimely. The defendants opposed

this motion, arguing that their answer had been timely, and they filed a separate

“Motion for Leave to Open Potential Default” reiterating the timeliness of their

answer but asking that, if the trial court found them in default, he permit them to open

the default.

      The trial court entered separate orders on these motions. He denied the

plaintiff’s motion to strike the answer and to enter a default judgment, holding that

the answer was timely because it was filed 29 days after the filing of the

acknowledgment of service with the court. He granted the defendants’ “Motion for

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Leave to Open Potential Default,” noting that the motion was premised on the

plaintiff’s allegation that the answer was untimely, finding that OCGA § 9-11-55

permitted the opening of a default, and requiring the defendants to pay court costs by

a specified date or the answer “shall stand dismissed.” The defendants then timely

paid court costs.

      2. Motion to strike answer and enter default judgment (Case No. A16A0277).

      (a.) The plaintiff contends that the defendants’ answer was untimely and

consequently that the trial court erred in denying his motion to enter a default

judgment. That answer, however, was timely.

      “A defendant shall serve his answer within 30 days after the service of the

summons and complaint upon him, unless otherwise provided by statute.” OCGA §

9-11-12 (a) (emphasis supplied). Where the person serving the process files proof of

service with the court more than five business days after the service date, OCGA §

9-11-4 (h) provides that “the time for the party served to answer the process shall not

begin to run until such proof of service is filed.” Proof of service includes “[t]he

written admission or acknowledgment of service by the defendant.” OCGA § 9-11-4

(h) (4). In this case, although the defendants’ written acknowledgment of service was

dated June 17, 2014, it was not filed with the trial court until June 26, 2014, more

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than five business days later. Accordingly, viewing the defendants’ acknowledgment

of service as the proof of service in this case, OCGA § 9-11-4 (h) provides that the

time for the defendants to answer began to run on June 26, 2014, making their July

23, 2014 answer timely. (Our decision in Berklite v. Bill Heard Chevrolet Co., 239

Ga. App. 791, 791-792 (1) (522 SE2d 246) (1999), holding that the date of execution

of an acknowledgment, and not the date of its filing, triggered the defendant’s 30-day

period for filing an answer, is inapposite; it construed an earlier version of OCGA §

9-11-4 that did not contain the provision governing instances where proof of service

was filed more than five business days after the service date. Compare OCGA § 9-11-

4 (h) with former OCGA § 9-11-4 (g) (1999).)

      (b.) The plaintiff argues, however, that we should not view the defendants’

acknowledgment of service as the proof of service in this case. Instead, the plaintiff

argues that the defendants made general appearances in the case that waived their

right to service and triggered the running of the 30-day period before June 26, 2014.

See Roberts v. Bienert, 183 Ga. App. 751, 753 (2) (360 SE2d 25) (1987) (appearance

and pleading in writing to the merits will waive service, if want of service is not

pleaded at the same time). The plaintiff points to the defendants’ alleged participation



                                           4
in a June 3, 2014 hearing on the plaintiff’s request for a temporary restraining order

and to the resulting June 17, 2014 temporary consent order. We are not persuaded.

      First, as to the June 3, 2014 hearing, the appellate record does not support the

plaintiff’s assertion that the defendants made a general appearance at a hearing on

that date. “An appearance signifies an overt act by which a person against whom suit

has commenced submits himself to the jurisdiction of the court,” Dyer v. Surratt, 266

Ga. 220, 222 (4) (466 SE2d 584) (1996) (citation and punctuation omitted), but if the

person excepts to the service or raises the defense of lack of jurisdiction, no waiver

of service is effected. Roberts, 183 Ga. App. at 753 (2). We cannot tell from the

record in this case whether, at the June 3 hearing, the defendants acted in a way that

constituted a submission to the trial court’s jurisdiction, on the one hand, or took

exception to the service or the trial court’s jurisdiction, on the other hand. The record

contains no transcript of a hearing or other evidence addressing this issue. Referring

to the hearing in prefatory language in the temporary consent order, the trial court

states merely that the “matter ha[d] been scheduled for an emergency hearing” and

that “the parties ha[d] engaged in settlement negotiations and resolved all matters to

be addressed at the hearing on a temporary basis without presenting evidence or

argument[.]” (Emphasis supplied.) In the absence of evidence showing that the

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defendants had, in fact, made a general appearance before the trial court at that time,

we must assume that what occurred before the trial court supported the trial court’s

ultimate determination. See Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497

SE2d 257) (1998) (appellant has burden of showing error by the record and where

record does not include proof necessary to determine issues on appeal, appellate court

must assume judgment below was correct).

      Second, as to the defendants’ consent to the temporary consent order on issues

raised by the TRO request, it is true that pleading in writing to the merits of a case can

waive service. Roberts, 183 Ga. App. at 753 (2). For purposes of our analysis we will

assume without deciding that a defendant’s consent to a temporary order resolving

issues raised in a TRO request is such a pleading to the merits and can constitute a

waiver of service.

      Having made that assumption, we are faced with an unusual circumstance: two

different waivers of service by the defendants – one implied, in the form of the

consent to the temporary order, the other express, in the form of the written

acknowledgment of service – that occurred on the same day but that gave rise to

different deadlines for answering the complaint. See generally Jones v. Jones, 209

Ga. 861, 865 (1) (76 SE2d 801) (1953) (acknowledgment constitutes waiver of

                                            6
service). The plaintiff accepted the defendants’ acknowledgment of service, and when

the defendants filed their answer based on the time period triggered by that express

waiver, the plaintiff did not at that time challenge the timeliness of the answer or

contend that the defendants were in default; instead the plaintiff filed a motion for

partial summary judgment, an action that could be viewed as a waiver of the

plaintiff’s right to a default judgment. See generally Laviano v. Travelers Ins. Co.,

276 Ga. App. 611, 613 (624 SE2d 189) (2005) (plaintiff may waive statutory right to

judgment following default by proceeding with action without taking advantage of

his right to judgment in timely and proper manner). Only after the trial court ruled

against him on that motion did the plaintiff seek to hold the defendants in default.

Pretermitting whether an implied waiver of service could ever trump an express

waiver of service, under the circumstances of this case and in light of Georgia’s

policy favoring decisions on the merits of cases over default judgments, see Pleats,

Inc. v. OMSA, Inc., 211 Ga. App. 643, 644 (1) (440 SE2d 214) (1993), we view the

express waiver of service rather than the implied waiver of service to have triggered

the 30-day answer period, making the defendants’ answer timely under OCGA § 9-

11-4 (h).

      3. “Motion for Leave to Open Potential Default”(Case No. A16A0122).

                                         7
       The plaintiff argues that the trial court erred in granting the defendants’

“Motion for Leave to Open Potential Default.” In that motion, the defendants argued

that, if they were in default, they should be permitted to open the default. Because the

defendants were not in default, the motion was moot. See Richards v. Wells Fargo

Bank, 325 Ga. App. 722, 726 (5) (b) (754 SE2d 770) (2014) (“A motion is moot when

a determination is sought on a matter which, when rendered, cannot have any

practical effect on the existing controversy.”) (citation and punctuation omitted). So

it was due to be denied as moot. Cf. Baez v. Miller, 266 Ga. 211(465 SE2d 671)

(1996) (affirming trial court’s order denying as moot appellant’s request for

mandamus where appellee had performed duty that appellant sought to compel). We

hereby vacate the trial court’s ruling on this motion and remand this case for entry of

a judgment not inconsistent with our opinion.

       Judgment vacated and case remanded with direction in Case No. A16A0122.

Judgment affirmed in Case No. A16A0277, Miller, P. J., concurs. McMillian, J.,

concurs fully in Divisions 1, 2 (a), and 3 and in the judgment only as to Division 2

(b).




                                           8
 A16A0122, A16A0277. SUMMERS v. WASDIN et al (two cases).



      MCMILLIAN, Judge, concurring specially.

      I concur fully in Divisions 1, 2 (a), and 3 of the majority’s opinion. I concur in

judgment only as to Division 2 (b) because I do not agree with all that is said in that

division of the majority opinion. Thus, the majority’s opinion in Division 2 (b)

decides only the issues presented in that division and may not be cited as binding

precedent in future cases. See Court of Appeals Rule 33 (a).
