Background
Titus Duncan and Earl Coleman sued Deneitra and Darvin Ham for allegedly breaching a residential lease by failing to pay rent. The Hams denied liability, asserted that a fallen tree had made the property uninhabitable, and moved for summary judgment on the breach-of-contract claim.
The Hams’ attorneys later withdrew. Although the Hams appeared to have legally sufficient notice of a July 20, 2022 calendar call because their former attorneys had received notice and the calendar was published in the county’s official organ, the Hams did not appear. The court then scheduled a bench trial for July 28. Notice of that trial was sent using an email address that was missing a letter, and the withdrawal order also listed a former rental address where the Hams no longer lived. The Hams did not appear for trial, and the court entered judgment for Duncan and Coleman, awarding $31,000 in unpaid rent and $15,595 in attorney fees.
After learning of the judgment through a garnishment action, the Hams moved to set it aside under OCGA § 9-11-60. The trial court found that they had not received notice of the bench trial but denied relief because it attributed the incorrect contact information to their former attorneys rather than to the court.
The Court’s Holding
The Court of Appeals reversed. It treated the Hams’ motion as one seeking correction of a clerical error under OCGA § 9-11-60 (g), rather than as a motion based on a nonamendable defect under subsection (d) (3). Because denial of a subsection (g) motion is directly appealable, the court held that it had jurisdiction even though the Hams had not filed a discretionary-appeal application.
On the merits, the court held that the trial court abused its discretion by refusing to set aside the judgment after finding that the Hams did not receive notice of the July 28 bench trial. Once the trial court adopted and entered the withdrawal order, the incorrect email address in that order became the court’s error. The court could not avoid its duty to provide notice by relying on that error, particularly when the correct email address appeared in the attorneys’ withdrawal filings.
The appellate court did not decide whether the trial court also erred by entering default judgment while the Hams’ summary-judgment motion remained pending. The Hams had not shown that the issue was raised and ruled upon below, and reversal on the notice issue made consideration of the remaining claims unnecessary.
Key Takeaways
- Legally sufficient notice of a calendar call does not establish notice of a later, specifically scheduled trial date.
- A judgment entered after a trial held without notice to a party may be set aside as a clerical-error matter under OCGA § 9-11-60 (g).
- A trial court remains responsible for an erroneous address in an order it adopts and enters, even when counsel prepared the proposed order.
Why It Matters
The decision reinforces Georgia courts’ obligation under OCGA § 9-11-40 (c) to notify parties when an action is placed on a trial calendar. Notice that may be sufficient for one calendar event does not substitute for notice of a later trial date.
The ruling also clarifies the appellate route for lack-of-notice claims supported by evidence outside the face of the record: such claims may be treated as clerical-error motions under OCGA § 9-11-60 (g), making an order denying relief directly appealable.