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Hodges v. Auction Credit Enterprises, LLC

Court of Appeals of Georgia, Fifth Division

October 25, 2019

HODGES
v.
AUCTION CREDIT ENTERPRISES, LLC.

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCFADDEN, CHIEF JUDGE.

         This appeal is from the entry of a default judgment on cross-claims. The appellant asserts that the trial court erred in entering a default judgment against him on the cross-claims because no answer to the cross-claims was required and they stood automatically denied. We agree and reverse the entry of a default judgment on the cross-claims.

         1. Facts and procedural posture.

         Marquis Gilmore filed a verified complaint against Vernard Hodges, Auction Credit Enterprises, LLC, and others, claiming fraud and breach of contract. Auction Credit filed an answer and cross-claims against Hodges for conversion, unjust enrichment, and indemnification. Hodges filed a motion to dismiss both Gilmore's complaint and Auction Credits' cross-claims, but the trial court denied the motion.

         Gilmore's claims against all the defendants were eventually resolved, leaving Auction Credit's cross-claims against Hodges pending for resolution. The trial court then entered an order vacating its prior order denying Hodges' motion to dismiss the cross-claims, converting Hodges' motion to dismiss the cross-claims into a motion for summary judgment, and giving Auction Credit 30 days to respond to Hodges' motion for summary judgment on the cross-claims. Auction Credit timely responded to Hodges' motion for summary judgment and also moved the court to strike Hodges' answer to the cross-claims and enter a default judgment, arguing that Hodges' answer to the cross-claims was not properly verified.

         On January 26, 2018, while Hodges' motion for summary judgment was still pending, the trial court entered an order granting Auction Credit's motion to strike Hodges' unverified answer to the cross-claims, declaring that Hodges was in default on the cross-claims, deeming the allegations in the cross-claims to be true and established, and directing the parties to submit affidavits on the issue of damages. On July 25, 2018, the trial court entered its final order and default judgment in favor of Auction Credit for damages totaling $63, 724.

         On August 17, 2018, Hodges filed a motion to set aside the orders awarding default judgment to Auction Credit, or alternatively for an extension of time to appeal. The trial court denied the motion to set aside, but granted the extension of time to appeal, ordering that Hodges "shall have until and through September 23, 2018, to file a Notice of Appeal from this court's order of July 25, 2018. This order is intended to and is to be construed to grant the maximum extension permissible under OCGA § 5-6-39 (c)." (Emphasis supplied.) Hodges filed his notice of appeal on Monday, September 24, 2018.

         2. Motion to dismiss the appeal.

         Auction Credit has moved to dismiss the appeal, claiming that the notice of appeal was untimely since it was filed on September 24 instead of September 23, 2018. The motion is without merit.

         As set out above, the trial court order granting Hodges an extension of time to file his notice of appeal expressly stated that the order was intended to grant the maximum extension allowed by OCGA § 5-6-39 (c) to appeal from the July 25, 2018 order. Under OCGA §§ 5-6-39 (c) and (d), "an extension of time [for filing a notice of appeal] may be granted but it shall not exceed 30 days and [the application for such an extension] must be made before the initial 30-day period for filing the notice of appeal expires." Grovnor v. Bd. of Regents of the Univ. System of Ga., 231 Ga.App. 120 (1) (497 S.E.2d 652) (1998). See OCGA § 5-6-38 (a) (the initial period for filing a notice of appeal is "within 30 days after entry of the appealable decision or judgment complained of").

         Hodges moved for an extension before the initial 30-day period for filing the notice of appeal had expired, so after the trial court granted him the maximum extension allowed by OCGA § 5-6-39 (c), "the deadline for the filing of the notice of appeal became the 60th rather than the 30th day following the entry of the [July 25, 2018 final order]." Dillard v. State, 223 Ga.App. 405 (1) (477 S.E.2d 674) (1996). That 60th day fell on September 23, 2018, which was, as Auction Credit concedes, a Sunday. Under Georgia's statutory rules of construction,

when a period of time measured in days . . . is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.

OCGA ยง 1-3-1 (d) (3) (emphasis supplied). Since the last day of the maximum statutory period for an extension granted by the trial court fell on a Sunday, Hodges had through the following Monday, ...


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