PIKSEL AMERICAS, INC. v. PIKSEL, INC

A company and two related parties missed the deadline to answer a breach of contract lawsuit, so they were declared in default. They asked the trial court to reopen the default, but it refused and entered a default judgment. They then asked the trial court to set the judgment aside, which it also refused, and the Court of Appeals of Georgia agreed to hear their appeal. The Court of Appeals declined to review the refusal to reopen the default because the judgment had not been set aside. The Supreme Court of Georgia denied review, with all Justices concurring. In a separate concurrence, Presiding Justice Warren said that reasoning conflicts with an earlier decision and seems incorrect. She still agreed to deny review because the parties used the wrong appeal route.

The court denied certiorari, so the Court of Appeals ruling stands. In her concurrence, Presiding Justice Warren said the Court of Appeals was likely wrong to refuse review of the denied motion to open default just because the judgment was not set aside. But the parties likely used the wrong appeal route, so this case was a poor vehicle for review.

Lawyers and businesses facing default judgments in Georgia get a signal about how appeals should be filed. Choosing a discretionary application instead of a direct appeal may cost a party review of a denied motion to reopen default. The concurrence also flags the question for future cases.

Petition for certiorari denied

1. Georgia's default statute (OCGA § 9-11-55(b)) lets a trial court reopen a default before final judgment. Presiding Justice Warren noted that an earlier Court of Appeals decision, Smithson, allowed review of a denied motion to reopen even after a default judgment was entered.
2. The Court of Appeals here said a default cannot be reopened unless the judgment is first set aside. Warren reasoned the cases it relied on involved motions filed after judgment, so they did not support refusing review of a motion filed before judgment.
3. She also saw nothing in the statute limiting appellate review, and noted that motions to reopen and to set aside have different requirements, so skipping one review could change the outcome.
4. However, Georgia's appeal statute (OCGA § 5-6-34(d)) lets courts review related rulings only when a direct appeal is taken. The parties here instead filed an application for discretionary appeal, so that broader review likely did not apply.
5. Because that procedural problem may independently bar review and the Court of Appeals did not address it, Warren concluded this case was not a proper vehicle and suggested considering the issue in a future case.

• default judgment
• appeal procedure
• petition for certiorari
• breach of contract
• Court of Appeals review