Appellant Perkins Masonry Contractors, Inc. filed suit against appellee Housing Authority of the City of Atlanta on March 20, 1985 alleging breach of contract. Appellee was served on March 22, 1985. On June 3, 1985 appellee's counsel learned that the case had been placed on the June 20, 1985 default calendar based on appellee's failure to file its answer to the complaint. On June 10, 1985 appellee filed its motion to open default. In support of its argument that its failure to file an answer was based on excusable neglect, appellee showed the following: On March 25, 1985 appellee forwarded a copy of the complaint to its then attorney. By correspondence dated March 29, 1985 appellee's attorney forwarded a copy of appellee's answer to appellant's counsel. Appellee's attorney also forwarded a copy of the answer to appellee along with a letter stating that he had filed the answer. Appellee retained new counsel in May, 1985 who after reviewing the file, including the above correspondence, determined that an answer had been filed. However, when counsel learned that the case had been placed on the motion calendar, he contacted the clerk's office and learned that this was not, in fact, the case.
The trial court found that appellee "was excusably negligent based upon its reliance upon counsel in filing its answer with the court," and granted the motion to open default. The trial court subsequently granted appellee's motion for summary judgment. On appeal, appellant challenges only the trial court's order granting appellee's motion to open default.
Ira P. Bernstein, Debra C. Bracewell, for appellee.