MCFADDEN, P. J., BRANCH and BETHEL, JJ.
August 2013, Maria Quiroga-Saenz rear-ended a car driven by
her sister Armandina. On the day after Armandina obtained a
default judgment of $1 million against Maria arising from
this accident, Maria's insurer, Liberty Mutual Fire
Insurance Company, retained counsel for Maria, who filed an
answer and moved to set aside the default judgment. As part
of a settlement with Armandina, however, Maria later withdrew
the motion to set aside. Liberty Mutual then moved to
intervene on grounds including that Maria had abandoned her
own defense. On appeal, Liberty Mutual argues that the trial
court did not have jurisdiction to enter the default judgment
and erred when it denied Liberty Mutual's motion to
intervene. We agree with the second of these contentions, and
we therefore reverse.
relevant facts are not in dispute. On August 28, 2013, Maria
and Armandina were on their way to a social function when
Maria drove her car into the back of her sister's car,
causing $1, 762.25 in damage to that car. Although Armandina
did not seek medical treatment on the day of the accident,
she eventually incurred approximately $5, 000 in medical
expenses arising from it.
April 2015, Armandina filed a negligence complaint against
Maria and provided a courtesy copy of the complaint to
Liberty Mutual. On May 20, 2015, and although service on
Maria had not yet been achieved, Armandina's counsel sent
Liberty Mutual a written request to settle Armandina's
claim for $25, 000, including her medical expenses and her
pain and suffering.
August 7, 2015, Liberty Mutual sent Maria a letter advising
her that the insurer "ha[d] reason to believe [that] a
lawsuit may be [or] ha[s] been filed against" her by
Armandina. The letter asked that Maria forward any materials
she might receive concerning the lawsuit to Liberty Mutual
and reserved Liberty Mutual's rights under the policy.
Maria was served on October 7, 2015 - six months after the
complaint was filed, and six weeks after the expiration of
the two-year statute of limitation. The return of service was
filed on Thursday, November 5, 2015. Maria did not file an
answer by Monday, December 7, 2015,  however, such that the case
went into default on the following day, Tuesday, December
Mutual states on appeal that it learned on December 14, 2015,
that service had been effected on Maria, and that it retained
counsel for Maria the following day. Maria's first
counsel averred, however, that neither he nor anyone at his
firm received "any pleadings on record with the Clerk of
Court, " including the motion for default judgment and
the default judgment, "until the afternoon of December
22, 2015." OCGA § 9-11-55 (a) provides that
"[i]f [a] case is still in default after the
expiration of the period of 15 days, the plaintiff at
any time thereafter shall be entitled to verdict and
judgment by default." (Emphasis supplied.) On Tuesday,
December 22, however - only fourteen days after the case went
into default - Armanida moved for and obtained a
default judgment against Maria in the amount of $1 million.
On the following day (the fifteenth after default),
Wednesday, December 23, Maria filed an answer asserting
defenses including the statute of limitation and also moved
to "vacate or set aside" the default judgment. On
the same day, Liberty Mutual notified its insured,
Maria's husband, that it was reserving its "right to
seek a declaration of its rights and duties under the policy
regarding defense and/or indemnity, " including
Maria's failure to cooperate "in the investigation,
settlement or defense" of Armanida's claim.
December 28, 2015, Armanida sent a letter to Maria's
counsel offering not to enforce the default judgment against
Maria in exchange for Maria's assignment of her claims
against Liberty Mutual, as well as a promise that Maria not
seek to set aside or appeal the default judgment, with this
offer expiring on January 7, 2016. On January 6, 2016,
Maria's original counsel withdrew and her new counsel
appeared, with Maria's written consent. On January 7,
Maria's new counsel moved to amend her previous motion to
set aside the default judgment, arguing inter alia that the
default judgment was void as entered before the expiration of
the 15-day period for opening default as a matter of right.
On the same day, however, Maria apparently accepted
Armandina's offer of settlement, assigning Maria's
claims against Liberty Mutual to Armandina and promising not
to set aside or appeal the default judgment.
January 18, Liberty Mutual moved to intervene in
Armandina's action, arguing that by assigning her claims
to Armandina, Maria had abandoned meritorious defenses
(including the applicable statute of limitation) to Liberty
Mutual's detriment. On January 26, Maria's new
counsel represented to the trial court that "the parties
have resolved any or all issues between them" and
withdrew Maria's motion to set aside the default
judgment, "waiv[ing] any and all rights of appeal that
she may have in connection with this matter."
14, 2016, the trial court denied Liberty Mutual's motion
to intervene on the grounds that (1) Armandina's counsel
had "no obligation" to notify Maria that Armandina
was seeking a default judgment; (2) Liberty Mutual had not
conceded that it owed any obligation to Maria under the
policy, and thus had not experienced any impairment in
interest; and (3) Liberty Mutual had retained "two
separate law firms to represent [Maria], yet waited almost a
month after receiving notice of service and default before
hiring its own counsel" to file the motion to intervene.
This appeal followed.
Liberty Mutual first argues that the trial court must set
aside its default judgment against Maria because her 15-day
period to open default as a matter of right had not yet
expired when the trial court entered the judgment, with the
result that the trial court lost its subject matter
jurisdiction. We disagree.
Mutual is correct that the trial court erroneously entered
the default judgment prematurely under the terms of OCGA
§ 9-11-55 (a). However, "[a]n appeal must be filed
by one who has standing to pursue it." Davis,
285 Ga. at 23 (citations omitted). As to the default
judgment, Liberty Mutual "is not a 'losing
party'; . . . in fact, [it] is no party at all."
Id. at 24; see also Rice v. Champion
Bldgs., 288 Ga.App. 597, 601 (2) (654 S.E.2d 390) (2007)
(as non-parties to case culminating in a default judgment,
appellants could not appeal that judgment). Liberty Mutual
not being a party to Armanida's action against Maria, it
had no right to appeal the default judgment entered in that
action. Davis, 285 Ga. at 24 (dismissing appeal);
Rice, 288 Ga.App. at 601 (2).
it is true that a non-party can collaterally attack a
judgment void on its face, this trial court's default
judgment is not void, but rather voidable. See Logan v.
Nunnelly, 128 Ga.App. 43, 46 (195 S.E.2d 659) (1973)
(where a judgment "did not show on its face
that it was void for lack of jurisdiction of the subject
matter or of the parties[, ] it would only be subject to
direct attack"). Only consideration of the evidence
outlined above concerning the timeline of service, proof of
service, and failure to answer would show that this default
judgment was entered prematurely; accordingly, it is voidable
rather than facially void. See Murphy v. Murphy, 263
Ga. 280, 282-283 (430 S.E.2d 749) (1003) (a judgment was not
open to collateral attack under OCGA § 9-11-60 (a), but
would have been open to a timely direct attack as containing
a non-amendable defect).
Liberty Mutual also asserts that the trial court erred when
it denied ...