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Lawskills.com Georgia Caselaw
PERKINS MASONRY CONTRACTORS, INC. v. HOUSING AUTHORITY OF ATLANTA.
75061.
POPE, Judge.
Action on contract. Fulton State Court. Before Judge Lambros.
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.
App. 754, 756 (240 SE2d 136) (1977). We believe these words ring especially true when that trust and reliance is placed in the litigant's attorney. Therefore, under the circumstances of the present case, we find that the trial court did not abuse its discretion in opening the default on the ground of excusable neglect. Donalson v. Coca-Cola Co., 164 Ga. App. 712 (1) (298 SE2d 25) (1982); cf. Millholland v. Stewart, 166 Ga. App. 431 (1) (304 SE2d 533) (1983); Howell Enterprises v. Ray, 163 Ga. App. 68 (293 SE2d 24) (1982); American Erectors v. Hanie, 157 Ga. App. 687 (278 SE2d 196) (1981).
Ira P. Bernstein, Debra C. Bracewell, for appellee.
Bruce E. Pashley, for appellant.
DECIDED NOVEMBER 16, 1987.
Thursday May 21 14:11 EDT


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