LEEPER et al.
SAFEBUILT GEORGIA, INC.
P. J., COOMER and MARKLE, JJ.
and Ashley Leeper filed suit in Fulton County Superior Court
against Safebuilt Georgia, Inc., and other defendants,
asserting various claims arising out of the construction of a
home. The Leepers subsequently voluntarily dismissed the
Fulton County action and refiled the case in Gwinnett County
Superior Court. After filing an untimely answer, Safebuilt
filed a motion to extend the time to answer and/or to open
default, and the trial court granted the motion on both
grounds and certified its order for immediate review. The
Leepers challenge the trial court's order in this
interlocutory appeal. For the reasons that follow, we
record shows that in December 2017, the Leepers filed suit in
Fulton County Superior Court against Safebuilt (as indemnitor
for the City of Milton) and several other defendants
asserting claims including breach of contract and fiduciary
duty, negligence, fraud, breach of warranties, and punitive
damages arising out of the construction of a home in Milton.
The Leepers alleged that Safebuilt (1) provided inspection
services throughout the construction process pursuant to an
agreement with the City of Milton, and (2) failed to identify
various defects and code violations during its inspections.
Later that same month, the Leepers voluntarily dismissed the
Fulton County action without prejudice.
December 26, 2017, the Leepers refiled the case in Gwinnett
County Superior Court; they served Safebuilt's agent with
a copy of the summons and complaint on December 28, 2017.
Nevertheless, in February 2018, the Leepers and Safebuilt,
through counsel, filed a stipulation in the Fulton County
action extending the deadline for Safebuilt to file an
answer. On February 13, 2018, Safebuilt filed an answer in
Fulton County, and it responded to the Leepers's
discovery requests in that case the same month.
21, 2018, the Leepers filed a motion for default judgment
against Safebuilt in the Gwinnett County case. The following
day, Safebuilt filed an answer. On June 8, 2018, Safebuilt
filed in the Gwinnett County action an "emergency
motion" to extend the time to answer or open default.
Safebuilt asserted that (a) it never received notice of the
dismissal of the Fulton County action, (b) it first learned
of the Gwinnett County action in May 2018,  and (c) due to a
misunderstanding and mistake on the part of both Safebuilt
and the Leepers, all of Safebuilt's prior filings had
been submitted in the Fulton County action. Safebuilt further
contended that if the court determined that it was in
default, opening default was warranted because, in relevant
part, it is entitled to sovereign immunity.
trial court granted Safebuilt's motion to open default on
the ground of excusable neglect and, alternatively, also
granted the motion for an extension of time to file its
answer for the same reason. The court observed in the order
that the Leepers lacked "clean hands" given their
superior knowledge of the dismissal of the Fulton County
action. The trial court subsequently certified its order for
immediate review, and this appeal followed.
Motion to open default.
The Leepers argue that the trial court erred by granting
Safebuilt's emergency motion to open default. We agree.
otherwise provided by statute, a defendant in a civil case
must file an answer within 30 days of service of the summons
and complaint upon the defendant. If an answer is not filed
within the time required by the Civil Practice Act, "the
case shall automatically become in default unless
the time for filing the answer has been extended as provided
Under OCGA § 9-11-55 (b), a prejudgment default may be
opened on one of three grounds if four conditions are met.
The three grounds are: (1) providential cause, (2) excusable
neglect, and (3) proper case; the four conditions are: (1)
showing made under oath, (2) offer to plead instanter, (3)
announcement of ready to proceed with trial, and (4) setting
up a meritorious defense. Generally, the opening of a default
rests within the sound discretion of the trial court.
However, compliance with the four conditions is a condition
precedent; in its absence, the trial judge has no discretion
to open default.
Thus, the failure to set up a meritorious defense
is, in and of itself, fatal to the motion to open default,
such that no other condition need be considered. In order to
establish a meritorious defense, a defendant must demonstrate
that the outcome of the case "may be different" if
the motion is granted. But, in making that showing, a
defendant cannot rely on mere conclusions; he must set forth
facts that establish the essential elements of a meritorious
case, the trial court erred by concluding that Safebuilt
pleaded under oath a meritorious defense.
The primary defense Safebuilt asserted is sovereign immunity
based on its argument that the Leepers's claims are
premised on work that Safebuilt did on behalf of the City of
Milton. "The doctrine of sovereign immunity, also known
as governmental immunity, protects all levels of governments
from legal action unless they have waived their immunity from
Safebuilt was acting as an independent contractor working for
the City of Milton when it undertook the inspections at issue
in this case; the parties' inspection contract explicitly
provides that Safebuilt "is engaged in an independent
business and agrees to perform the services as an independent
contractor and not as the agent or employee of the
Georgia Tort Claims Act ("GTCA") indicates that
sovereign immunity applies only to the State and to
"State officers and employees" engaged in "the
performance or nonperformance of their official duties or
functions." And OCGA § 50-21-22 (7) specifically
excludes "an independent contractor doing business with
the [S]tate" from the definition of "[S]tate
officer or employee" for purposes of the GTCA. And this
Court has held that "corporations and independent
contractors doing business with the State are not included
within the GTCA's definition of
has not identified any binding precedent indicating that a
company acting as an independent contractor for a government
entity may be entitled to sovereign immunity in Georgia. The
sole case on which Safebuilt relies to support its claim in
this respect - Yearsley v. W. A. Ross Constr.
Co. - is inapposite. Yearsley
concerned a federal contractor conducting work on the
Missouri River for the purpose of improving navigation on the
river "under the direction of the Secretary of War and
the supervision of the Chief of Engineers of the United
States." The plaintiff claimed that the
contractor's work had caused part of the plaintiff's
land to wash away, in violation of the plaintiff's Fifth
Amendment rights. The U.S. Supreme Court held that there
could be no liability on the part of the contractor for
executing the will of Congress in the conduct of a project
that was within Congress's constitutional
power. Notably, the Court held that to the
extent that the contractor's action constituted a taking
of property requiring just compensation, the plaintiff's
remedy was to seek such compensation from the federal
government by filing suit in the Court of
Claims. On its face, the decision in
Yearsley results primarily from the intersection of
the U.S. Constitution's Takings Clause and the
availability of a remedy for a federal taking. Nothing in
Yearsley suggests that the Court in that case was
ruling that all contractors doing any work for any level of
government are entitled to sovereign immunity for causes of
action arising out of such work, even in the absence of a
federal Takings Clause issue. And we decline to so extend the
doctrine of sovereign immunity, particularly in light of
clear statutory authority to the contrary.
Safebuilt purported to raise two additional meritorious
defenses in support of its motion to open the default in the
affidavit of its attorney: (1) that it "provided
inspections properly"; and (2) that "[m]any of the
asserted negligent construction claims are inapplicable to
Safebuilt due to the nature of Safebuilt's business and
services and lack of privity with Plaintiffs." However,